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United States v. Wolfenbarger

United States District Court, N.D. California, San Jose Division

July 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHNNY RAY WOLFENBARGER, Defendant.

          ORDER DENYING DEFENDANT'S FOURTH MOTION TO COMPEL RE: DKT. NO. 186

          LUCY H. KOH UNITED STATES DISTRICT JUDGE

         A federal grand jury indicted Defendant Johnny Ray Wolfenbarger (“Defendant”) on one count of attempted production of child pornography, in violation of 18 U.S.C. § 2251(c) and (e); one count of attempted coercion and enticement of minors, in violation of 18 U.S.C. § 2422(b); and one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). ECF No. 1. Before the Court is Defendant's fourth motion to compel the government's production of certain documents under Federal Rule of Criminal Procedure 16, Brady v. Maryland, 373 U.S. 83 (1969), and California Rule of Professional Conduct 3.8(d). ECF No. 186. Having considered the parties' submissions, the relevant case law, and the record in this case, the Court DENIES Defendant's fourth motion to compel production.

         I. BACKGROUND

         A. Factual Background

         The government has made the following representations regarding the investigation that led to Defendant's indictment. ECF No. 117-10, Declaration of Special Agent Kelly Clark (“Clark Decl.”). Xoom, an online payments service, filed a CyberTipline report on September 17, 2014, to the National Center for Missing and Exploited Children (“NCMEC”) regarding a money transfer from the United States to the Philippines sent using Xoom's services. Id. at ¶ 2. The recipient in the Philippines had a Yahoo account with a profile picture depicting a young girl committing a lewd act. Id. On September 19, 2014, Xoom alerted Yahoo that a number of Yahoo accounts were engaged in the sale of child exploitation material. Id. Yahoo's E-Crimes Investigation Team (“ECIT”) observed that approximately 115 Yahoo accounts operating from the Philippines appeared to be selling images, video, and live-streamed child abuse via Yahoo Mail and Yahoo Messenger. Id. ECIT reported their findings, including information on 382 Seller accounts located in the Philippines and 550 Buyer accounts located in the United States and elsewhere, to NCMEC's CyberTipline. Id. at ¶ 3.

         NCMEC is statutorily required to maintain the CyberTipline so that Internet service providers (“ISPs”) like Yahoo may report known child pornography violations to NCMEC. 18 U.S.C. § 2258A(c). Yahoo and other ISPs bear a corresponding obligation to report to NCMEC “any facts or circumstances” indicating an apparent or imminent violation of certain child pornography statutes. Id. at § 2258A(a). NCMEC must then forward these reports to federal law enforcement agencies. Id. at § 2258A(c).

         Between October 2014 and March 2016, the FBI received approximately 288 CyberTipline reports associated with the Yahoo accounts. Clark Decl. ¶ 3. The FBI opened the Operation Swift Traveler investigation upon receipt of the first of these reports. Id. The FBI obtained about 100 federal search warrants for Yahoo accounts. Id. at ¶ 5. The FBI then prepared lead packages, with each package typically containing information collected on one target. Id. at ¶ 6. However, sometimes multiple lead packages were prepared for the same target to distribute supplemental information received on that target. Id. Receiving field offices were expected to review the lead package and determine whether to open a case and proceed with further investigation. Id. Between 2014 and 2016, a total of 195 lead packages were prepared and sent to FBI field offices and Legal Attaches located in foreign countries. Id. Based on those lead packages, the FBI opened approximately 70 full investigations. ECF No. 94 at 2. The government represented in June 2018 that the FBI had declined to bring indictments in some of those 70 investigations, and that some of the 70 investigations remained ongoing. Id. Additional leads were disseminated to Europol and the FBI's International Violent Crimes Against Children Task Force. Clark Decl. ¶ 6.

         On November 30, 2015, NCMEC received a CyberTipline report from Yahoo stating that child pornography was contained in the email account jrwolfen02@yahoo.com. Id. at ¶ 7. The report further stated that Yahoo's ECIT determined this account was related to activity involving a Philippines webcam. Id. On March 11, 2016 and July 13, 2016, the FBI sent lead packages to the San Francisco field office in connection with Defendant. Id. The second lead package included information related to Defendant that was found within the results of search warrants for 11 different Seller Accounts associated with the OST case. Id. The second lead package consists of 81 pages plus a thumb drive containing 16.5 gigabytes of data comprised of 2, 506 files in 1, 237 folders. Id. at ¶ 9.

         On May 9, 2016, the government obtained a search warrant for the email account jrwolfen02@yahoo.com from United States Magistrate Judge Nathanael Cousins, based on an affidavit submitted by FBI Special Agent Ann Trombetta. ECF No. 28-1.

         B. Procedural Background

         On December 15, 2016, a federal grand jury indicted Defendant on one count of attempted production of child pornography, in violation of 18 U.S.C. § 2251(c) and (e); one count of attempted coercion and enticement of minors, in violation of 18 U.S.C. § 2422(b); and one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). ECF No. 1.

         1. First Motion to Compel

         On December 6, 2017, Defendant filed his first motion to compel production of evidence under Federal Rule of Criminal Procedure 16 and Brady. ECF No. 28. Defendant sought to compel the government's production of any “reports, notes, memoranda, emails, drafts, correspondence, or other documents pertaining to the development of the probable cause for the search warrant” in this case. Id. at 4. Specifically, Defendant requested the following:

[A] list of all cases investigated or filed in this district from 1998 to 2016 in which the U.S. Attorney's Office and/or the FBI submitted a search warrant affidavit in reliance on a search of an email account conducted by Yahoo!, the results of which had been submitted to NCMEC or directly to law enforcement, including any specific information providing actual or constructive knowledge to the government or the FBI regarding the manner in which Yahoo! conducted the search.

Id. At the hearing on Defendant's first motion to compel, Defendant orally amended the period from 1998 to 2016 (effectively 19 years) to 2010 to 2016 (effectively 7 years). ECF No. 189 at 1 n.1. Defendant contended that the requested information was relevant to Defendant's potential motion to suppress evidence on the basis that Yahoo was acting as a government agent for Fourth Amendment purposes. ECF No. 28 at 8-10 (citing United States v. Walther, 652 F.2d 788 (9th Cir. 1981), which sets forth the Ninth Circuit's test for when a private entity acts as a government agent under the Fourth Amendment). On December 20, 2017, the government filed an opposition to Defendant's first motion to compel. ECF No. 29.

         On December 21, 2017, the Court referred Defendant's first motion to compel to Magistrate Judge Nathanael Cousins, the discovery judge in this case. ECF No. 30. On January 3, 2018, Judge Cousins held a hearing on Defendant's first motion to compel. ECF No. 33. On January 12, 2018, Judge Cousins denied without prejudice Defendant's first motion to compel because Defendant had not established that the files from all Operation Swift Traveler investigations other than that of Defendant were material under either Rule 16 or Brady, and because Defendant's request was speculative: “In particular, the request for review of prosecution files from 2010 to 2016 is a speculative fishing expedition.” ECF No. 43 at 5. Judge Cousins also observed that in response to Defendant's other discovery requests, the government had produced the NCMEC CyperTipline Report related to Defendant. Id. at 5-6.

         2. First Motion to Suppress

         On February 28, 2018, Defendant filed his first motion to suppress. ECF No. 49.

         Defendant moved to suppress Defendant's August 2016 statements to an FBI special agent. Id. at 3. On March 21, 2018, the government filed an opposition to Defendant's first motion to suppress. ECF No. 60. On April 4, 2018, Defendant filed a reply. ECF No. 71. In the afternoon of April 17, 2018, less than 24 hours before the April 18, 2018 morning evidentiary hearing on Defendant's first motion to suppress, Defendant withdrew the motion. ECF No. 73.

         3. Second Motion to Compel

         On April 3, 2018, Defendant sent the government a discovery letter and requested the following materials in Item 2 of the letter:

Additional information regarding the investigation that led to Mr. Wolfenbarger's arrest, including, but not limited to, documents and communications pertaining to the prosecutions in U.S. v. Wolfenbarger, No. CR 16-519 LHK (N.D. Cal.); U.S. v. Peeler, No. CR 15-4229 DHH (D. Mass.); U.S. v. Touset, No. CR 15-45 MHC (N.D. Georgia); U.S. v. Amos, No. CR 16-46 PPS (N.D. Indiana), and U.S. v. Davison, No. CR 16-50074 JLV (D.S.D.), as follows:
(A) The docket sheet, or any document(s) showing the case number or investigation number, for all investigations and prosecutions in the United States resulting from the Philippines webcam investigation involving Xoom, Yahoo, the FBI, the Department of Homeland Security, the Department of Justice, or another federal or state law enforcement agency between 2013 and 2018, including but not limited to the numerous investigations known to the defense. If the investigation or prosecution in a particular case is not public knowledge and the government believes there is a need for continued confidentiality, the government may redact any information it believes is confidential while disclosing sufficient information to identify the existence of the case, and shall provide the grounds for redaction.
(B) All reports and documents generated between 2013 and 2018 by the FBI, the Department of Homeland Security, the Department of Justice, and/or any other involved agency, pertaining to the Philippines webcam investigation involving Xoom and Yahoo!.
(C) All communications between 2013 and 2018 by and/or between the FBI, the Department of Homeland Security, the Department of Justice, and/or any other involved agency, pertaining to the Philippines webcam investigation involving Xoom and Yahoo!.
(D) All reports and/or notes regarding meetings occurring between 2013 and 2018 involving the FBI, the Department of Homeland Security, the Department of Justice, and/or any other involved agency, pertaining to the Philippines webcam investigation involving Xoom and Yahoo!.
(E) All communications between 2013 and 2018 between Xoom and/or Yahoo! and the FBI, the Department of Homeland Security, the Department of Justice, and/or any other agency involved in the Philippines webcam investigation, regarding the Philippines webcam investigation.
(F) All documents produced by Xoom or Yahoo! to the FBI, the Department of Homeland Security, the Department of Justice, or any other agency involved in the Philippines webcam investigation, between 2013 to 2018, regarding the Philippines webcam investigation.
(G) All reports and/or notes regarding meetings involving Xoom and/or Yahoo! and the FBI, the Department of Homeland Security, the Department of Justice, and any other agency involved in the Philippines webcam investigation, between 2013 and 2018, regarding the Philippines webcam investigation.

ECF No. 85 at 7-8 (citing ECF No. 85-1, Ex. C).

         In response, the government provided Defendant with documents including “a Customs and Border Patrol report regarding Mr. Wolfenbarger's diversion to secondary inspection and interrogation at the airport” and “additional TECS reports, as well as FBI reports detailing agency interactions between the FBI and Yahoo regarding the Philippines web cam investigation.” ECF No. 85 at 4. The government also produced reports “describing the initiation of Operation Swift Traveler and Yahoo!'s identification of Wolfenbarger as a purchaser of child pornography.” ECF No. 87 at 3. However, the government objected to Defendant's request for the materials identified in Item 2. Id.

         On May 25, 2018, Defendant filed his second motion to compel, and requested production of the Item 2 documents. ECF No. 85. On June 6, 2018, the government filed an opposition, ECF No. 87, and on June 11, 2018, Defendant filed a reply. ECF No. 88.

         On July 2, 2018, Judge Cousins granted in part and denied in part Defendant's second motion to compel. ECF No. 109. Judge Cousins granted in whole Defendant's request for the documents in Item 2, subject ...


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