The opinion of the court was delivered by: Ackerman, Senior District Judge
OPINION AND ORDER ON PRETRIAL MOTIONS
This matter comes before the Court on the pretrial motions (Doc. Nos. 39 and 47) filed by Defendant Russell Christie, praying for various forms of relief. In the first motion (Doc. No. 39), filed by his counsel on his behalf, he makes four primary arguments. First, Christie seeks to dismiss several Counts of the Superseding Indictment. Second, Christie seeks to suppress both evidence seized during a search of his home, and statements allegedly made by him prior to his arrest. Third, Christie requests a hearing to determine whether there are additional bases for suppressing evidence or dismissing Counts. Fourth, and finally, Christie makes various discovery requests. In the second motion (Doc. No. 47), Mr. Christie, independent of his counsel, advances several arguments regarding the warrant, the warrant affidavit, and the Superseding Indictment.
The Court has carefully reviewed the excellent briefing submitted on behalf of Christie and the Government. In addition, the Court held oral argument on this matter on Thursday, July 24, 2008, and heard additional argumentation by counsel. Furthermore, Mr. Christie made his own oral motions at the July 24 hearing, submitted briefing that day and subsequently, and the Court has considered those additional arguments as well.
For the following reasons, Christie's motion to dismiss Counts of the Superseding Indictment will be denied. In addition, Christie's motion to suppress evidence will be denied, but the Court will reserve decision on the motion to suppress his statements. The Court declines to grant Christie's request for a Franks hearing, and each discovery request is addressed below in appropriate detail. Finally, Mr. Christie's independent oral motions will also be denied.
The following background information includes many facts that have been alleged, but not proven. Accordingly, the Court provides this background summary with the strenuous caveat that Christie is innocent until proven guilty beyond a reasonable doubt, and that most of the facts below are alleged, and not necessarily conceded or proven.
In November 2005, Special Agent ("SA") Douglas Macfarlane of the Federal Bureau of Investigation located in California learned that an individual named Jerrod Lochmiller wished to provide information to law enforcement through his attorney. At that time, Lochmiller was a fugitive in a federal fraud case in Los Angeles, and he also was the administrator of an Internet website designed to facilitate the exchange of videos, images, and stories, some or all of which concerned child pornography. The website, www.namgla.net (hereinafter "NAMGLA" or the "website"), was password-protected, which means that casual browsing on the Internet would not allow access to the website absent a password. NAMGLA is believed to be an acronym for "North American Man Girl Love Association."*fn1
Despite the FBI's admission that Lochmiller wanted to provide information through his attorney, the FBI did not contact Lochmiller's attorney until April 2006. In the interim, starting in November 2005, SA Macfarlane logged into the NAMGLA website in an undercover capacity using a screen name and password provided by Lochmiller. At that time, SA Macfarlane learned that NAMGLA operated as a message board where users posted messages that other users could view. These messages often included links to other websites, which stored picture and video files depicting what appeared to be child pornography.
On one occasion in April 2006, SA Macfarlane observed a message posted by a user named "franklee,"*fn2 whom the Government alleges is Russell Christie. In the message, Christie provided a link to a movie file that was nearly 19 minutes long, and included images of a prepubescent female lying nude on a bed. An adult male hand can be seen rubbing the child's buttocks, and the camera zooms in and out of the child's genitalia. There is also an adult female on the video, who is spreading open and posing the child's legs. At another point in the video, an adult male's erect penis is shown rubbing against the girl's vagina until the male ejaculates onto the girl's vagina. Later, the adult male can be seen inserting his penis into the girl's mouth before pulling out and ejaculating into her mouth.
Through its investigation, the FBI determined that the postings on NAMGLA by the user name "franklee" originated at 68A Phillips Road, Newton, New Jersey. A hardly insignificant fact is that at the time of his arrest, Christie, age 48, was employed as a school bus driver in the Andover district in Sussex County. The FBI learned that Russell Christie resides at both 68 and 68A Phillips Road. Green Valley Beach Campground is also located at 68 Phillips Road, and is owned by Janet Christie, Russell's mother. The importance of the distinction between 68 and 68A will become obvious later, but suffice to say at this point that the FBI acquired information that placed Russell Christie at both addresses, which were allegedly indistinguishable from the outside.
Ultimately, the FBI determined that Christie resided at 68 Phillips Road, not 68A, and thus the agents applied for a search warrant for that address. On July 24, 2006, Magistrate Judge Patty Shwartz signed the search warrant, and agents executed it the following morning at about 6:00 AM. Within twenty minutes, the agents determined that Christie resided at 68A, not 68, and so they immediately exited the dwelling, contacted the U.S. Attorney's Office in Newark, and ultimately decided to apply for a search warrant for 68A Phillips Road. An agent was dispatched back to Newark to draft and obtain the new affidavit, and thereafter it was presented to Magistrate Judge Shwartz for review and consideration.
While the one agent was away to acquire the new search warrant, other agents remained outside the 68 Phillips Road address, after having secured and cleared the dwelling. The agents informed Christie and his mother that neither of them could enter the 68A address unaccompanied by agents, but that they were not under arrest, and neither were they under any obligation to remain with the agents outside the apartment. As a result, Christie's mother went about her day, but Christie apparently stayed with the agents and made several statements.
At approximately 1:15 PM, Magistrate Judge Shwartz signed the new search warrant for 68A, the agent returned to the address at about 2:00 PM, and the search of the apartment began. The agents seized a computer containing approximately 567 postings to NAMGLA, hundreds of videos of alleged child pornography, and thousands of images of alleged child pornography. At about 6:00 PM, the agents arrested Christie. On July 26, 2006, the Government charged Christie in a criminal Complaint alleging that Christie possessed child pornography. On April 20, 2007, a Grand Jury returned a two-count Indictment charging Christie with one count of receiving and distributing child pornography, and one count of possessing child pornography.
Subsequently, on October 19, 2007, the Grand Jury returned this eight-count Superseding Indictment charging Christie with six counts of advertising and attempted advertising of child pornography, in violation of 18 U.S.C. § 2251(d)(1)(A), one count of receipt and attempted receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and (b)(1), and one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B).
The current motion by Christie involves multiple issues. First, Christie moves to dismiss Counts 2 through 6 (the advertising counts) as multiplicious of Count 1, which also charges advertising. Second, Christie moves to dismiss Counts 1 through 3 on the ground that they fail to allege "notice" as required by the statute. Third, Christie moves to suppress certain evidence seized at his home on the grounds that the affidavit used to acquire the search warrant was materially misleading, and also on the grounds that there was an unlawful execution of the search warrant. Fourth, Christie moves to suppress alleged statements made by him to law enforcement during the seven hours between the time when the one agent left to obtain a new warrant, and the return of that agent and execution of the new warrant. Fifth, Christie makes certain discovery requests for disclosure of: Brady material; Rule 404(b) evidence; tests, reports, and summaries by the Government's experts; and Jencks Act material. Sixth, and finally, Mr. Christie makes several motions regarding the warrant affidavit, namely that it was stale, overbroad, vague, and lacking in particularity. The Court will address these issues seriatim.
A. Counts 2 through 6 are not multiplicious of Count 1
The Superseding Indictment sets forth, in its first nine paragraphs, the basic facts about NAMGLA and Christie's connection to the website through the user name "franklee." In the ninth paragraph, the Superseding Indictment charges that Christie did knowingly make, print, and publish . . . a notice and advertisement seeking and offering to receive . . . visual depictions . . . of a minor engaging in sexually explicit conduct, and the defendant knowing . . . that such notice and advertisement would be transported across state lines by any means, including by computer, specifically the NAMGLA Website; and such notice and advertisement was transported across state lines . . . , each [notice and advertisement] constituting a separate Count of this Superseding Indictment. (Superseding Indictment at ¶ 9.) The Superseding Indictment then lists each of six posts to NAMGLA allegedly made by Christie, the date of each post, and a brief description of the contents of the link included in each post. Each post constitutes a separate Count of the Superseding Indictment, and each Count constitutes a violation of 18 U.S.C. § 2251(d)(1)(A).*fn3
Christie argues that only one of the first six counts is necessary because there is arguably only one criminal act. In other words, Christie contends that the Government "has divided what is a single alleged act of advertising child pornography into several criminal charges." (Christie Br. at 6.) Christie insists that doing such is a violation of the Double Jeopardy Clause of the Fifth Amendment, and he points to the Third Circuit's decision in United States v. Carter, 576 F.2d 1061, 1064 (3d Cir. 1978) as support. "Multiplicity [is] the charging of a single offense in different counts of an indictment."
Carter, 576 F.2d at 1064. "The basic inquiry in determining whether counts of an indictment are truly separate, and not multiplicious,*fn4 is whether proof of one offense charged requires an additional fact that proof of the other offense does not necessitate." Id. "Also of central importance is whether the legislature intended to make separately punishable the different types of conduct referred to in the various counts." Id.; see also United States v. Stanfa, 685 F.2d 85, 87 (3d Cir. 1982) ("In practice . . . we have usually found the second Carter inquiry [congressional intent] to be determinative of the multiplicity question."). In Carter, the defendant was charged with two counts: (1) possession with intent to distribute 95 grams of heroin; and (2) distribution of 677 grams of heroin. The defendant argued that he should only have been charged with one count because he brought all of the heroin from Los Angeles to Newark, and thereafter turned it over to his co-conspirator, who set aside 95 grams for himself, and attempted to sell the 677 grams to undercover officers. The Third Circuit rejected the defendant's argument, holding that Congress intended two distinct offenses, punishable by separate sentences, because the acts of possession and distribution involved discrete quantities of narcotics, and thus the facts required to prove the two offenses differed. Id.
Carter is not a perfect analogy because it involves the question of whether possession with intent to distribute and distribution are duplicative, not whether multiple instances of distribution are multiplicious, but the case is nevertheless instructive. Indeed, Carter teaches that of "central importance is whether the legislature intended to make separately punishable the different types of conduct referred to in the various counts." Carter, 576 F.2d at 1064. Here, § 2251(d)(1)(A) provides punishment for anyone who "knowingly . . . publishes . . . any notice or advertisement seeking or offering . . . to distribute . . . any visual depiction . . . [that] involves the use of a minor engaging in sexually explicit conduct." Thus, the actus reus that the legislature intended to punish is the publication of a notice or advertisement regarding child pornography. The Superseding Indictment charges that Christie did so publish a notice or advertisement on six occasions on five different days between October 2005 and January 2006. It is sensible to punish each publication separately because it is the advertisement that invites the metastasizing of child pornography in our society. By further crude analogy, attempts at prohibiting the oldest profession demonstrate that prohibiting prostitutes from "advertising" their wares on the street corner can have a dramatic effect on the quantity of business transacted. Likewise here, Congress intended to punish the knowing publication of an advertisement that contributes to the proliferation of child pornography. Accordingly, each individual post to a website can be the basis for a separate charge because each post is intended to increase the quantity and availability of child pornography.
The Third Circuit has not addressed this precise issue, but this Court's conclusion in this regard is buttressed by cases from other circuits. For example, in United States v. Planck, 493 F.3d 501 (5th Cir. 2007), law enforcement searched the defendant's home and found "a desktop computer, laptop computer, and 223 computer diskettes . . . . The desktop computer contained 88 videos and still child-pornography photographs; the laptop computer, four still photographs; and the diskettes, thousands of images. In total, [the defendant's] computer data contained approximately 5,000 child-pornography images." Id. at 502. The defendant was subsequently charged with three counts of possession of child pornography. Consequently, the defendant "moved to dismiss two of the possession counts on multiplicity grounds, contending he was being prosecuted three times for the same possession-of-child-pornography act." Id. The Fifth Circuit rejected the defendant's multiplicity argument, holding that "[f]or the possession statute . . . , the actus reus is the possession of child pornography . . . . Through different transactions, [the defendant] possessed child pornography in three separate places-a laptop and desktop computer and diskettes-and, therefore, committed three separate crimes. The counts are not multiplicitous." Id. In reaching its holding, the Planck court analogized to receipt/distribution statutes addressing child pornography. The court explained that in those circumstances, "each separate receipt of child pornography violates the statute" and "each separate use of the mail to transport or ship child pornography should constitute a separate crime." Id. (citing United States v. Buchanan, 485 F.3d 274, 279-82 (5th Cir. 2007); United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990)).
Similar to the defendant in Planck, Christie is charged with advertising child pornography on six separate occasions. Each of Counts 1 through 6 charge that Christie advertised five different videos and one series of images in six discrete postings spread across four months.
Christie provides no logical basis upon which to conclude that any posting could be considered duplicative of any other posting, much less that Counts 2 through 6 constitute a multiplicious charge of Count 1.
Christie's argument that he should only be charged once for advertising because he was only charged once for possession of thousands of images of child pornography is unpersuasive. The possession statute prohibits the possession of "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography." 18 U.S.C. § 2252A(a)(5)(B). In other words, it is illegal to possess an object containing an image of child pornography, regardless of how many images are contained within that object. As Planck held, one can be separately charged for the possession of each object--book, magazine, computer disk--that contains even one image of child pornography, but if that object contains thousands of images, a defendant can still be charged with only one count of violating the statute.*fn5 By contrast, the advertising statute makes it illegal to commit the act of advertising, regardless of how many images are included in each advertisement. Accordingly, each act of advertising can result in a separate charge.
This holding is supported by Third Circuit caselaw. In United States v. Villard, 885 F.2d 117 (3d Cir. 1989), our Court of Appeals rejected the defendant's argument that he could not be charged for both sending child pornography through the mails and for carrying those same materials across state lines. Id. at 121 n.5. The Villard court found that the defendant could be charged separately "because the government must prove different facts in order to achieve convictions in each of [the separate counts]." Id. Similarly, here the Government must prove different facts for each of Counts 1 through 6, namely that Christie made each post and that each post contained a notice and advertisement of child pornography. For the foregoing reasons, Christie's motion to dismiss Counts 2 through 6 as multiplicious will be denied.
B. The Government Sufficiently Alleged "Notice" as to Counts 1 Through 3
In a single paragraph, Christie contends that the Government failed to plead an essential element of the offense in Counts 1 through 3. Those Counts reference postings allegedly made by Christie, each of which simply contain a link to a video, without any description of what the link or corresponding video contains. These Counts differ from Counts 4 through 6, each of which contains a description of the contents of the video of alleged child pornography. Accordingly, Christie contends that "nowhere in [Counts 1 through 3] is there a notice, advertisement or any indication whatsoever, of what the link contains." (Christie Br. at 7.) In other words, Christie argues that the posts containing only links do not satisfy the notice or advertisement requirement of 18 U.S.C. § 2251(d)(1)(A). Christie then declares that the "Third Circuit has not addressed this specific issue." (Id.)
Christie's argument is unpersuasive. To adopt his interpretation of what notice and advertisement means in the statute would be to hold that the statute cannot reach an individual who disseminates child pornography without a written description of the contents of that child pornography. Such an interpretation would carve a hole in the statute big enough to render the statute non-existent because purveyors of child pornography would quickly learn that they can operate with impunity so long as they do not provide words to accompany their illegal pictures. That would completely negate the primary intent of Congress: to eliminate the exchange of child pornography.
While it is true that the Third Circuit has not addressed the question of what constitutes "notice and advertisement," the Government points to a Second Circuit case to counter Christie's argument. In United States v. Rowe, 414 F.3d 271 (2d Cir. 2005), the court of appeals addressed a situation in which the defendant had posted, in an Internet chat room, the following: "[v2.3b] Fserve Trigger: !tun Ratio 1:1 Offering: Pre boys/girl pics. Read the rules. [1 of 2 slots in use]." Id. at 273. This seemingly incomprehensible jargon was understood by users of the chat room "preteen00" to be information on how to access the defendant's home computer, download, and upload photographs of underage children. See id. The defendant later argued that this post was beyond the scope of the advertising statute because it "does not by its very terms indicate it is seeking or offering material of a pornographic nature." Id. at 276. The Rowe court rejected that argument, explaining that "there is no requirement that an advertisement must specifically state that it offers or seeks a visual depiction to violate [the statute]." Id. at 277 (quoting United States v. Pabon-Cruz, 255 F. Supp. 2d 200, 218 (S.D.N.Y. 2003)) (quotation marks omitted). Indeed, the court further noted that "no particular magic words or phrases need to be included" to satisfy the notice and advertisement requirement of the statute. See id. Importantly, the Rowe court found it significant that the chat room contained queries such as "anybody with baby sex pics for trade?," and the court noted that offering pictures of children in a chat room containing such queries or comments was sufficient to constitute notice and advertisement within the meaning of the statute. Id. at 276. In other words, the court deemed context important in answering the question of whether a facially vague post constitutes notice and advertisement.
Here, the NAMGLA website was primarily dedicated to the exchange of alleged child pornography. Thus, a user of the password-protected website could reasonably understand that a post containing a link would not lead the user to pictures of unicorns and butterflies, but instead would yield images or video of children in a sexually explicit manner. But it is actually irrelevant whether an individual would accurately predict that a given link posted on the Internet would yield child pornography. The question is whether the posting of the link itself constitutes a notice and advertisement. In that regard, Rowe is instructive inasmuch as it held that the purported advertisement need not expressly declare, "I have child-pornographic images for trade." Rowe, 414 F.3d at 277. Indeed, "Congress did not intend its bar on advertising for child pornography to be so easily evaded." Id. A notice and advertisement need not be explicit itself, for to hold such would be to encourage the proliferation of child pornography so long as it is done in a "subtle" manner by merely posting on a password-protected website dedicated to child pornography a direct link to a prohibited video. Accordingly, this Court holds that a nondescriptive link to an image or video of child pornography satisfies the notice and advertisement element of 18 U.S.C. § 2251. In that regard, Christie's motion to dismiss Counts 1 through 3 will be denied.
III. Motions to Suppress Evidence
A. The Warrantless Seizure Of Christie's Home Pending The Supplemental Search Warrant Was Not Unreasonable
Christie next moves to suppress the evidence seized at his home on the grounds that the seizure of his home was unreasonable and therefore in violation of the Fourth Amendment.*fn6 As previously mentioned, law enforcement officers executed a search warrant for 68 Phillips Road, but quickly realized that Christie resided at 68A, an attached apartment to 68. Realizing this, the officers exited 68 and dispatched an agent back to Newark to obtain a new warrant for 68A. While the agent was obtaining the new warrant, other agents stayed at the scene and informed Christie that was he not permitted to go back into his apartment at 68A unaccompanied by law enforcement, but that he was free to go anywhere else. The agent designated to obtain the new search warrant returned approximately seven hours later. Christie contends that the seven-hour seizure of his home was unreasonable because the officers did not act diligently in obtaining a search warrant.
In Illinois v. McArthur, 531 U.S. 326 (2001), the Supreme Court addressed a situation similar to this case. There, police officers accompanied a wife to her marital home, where her husband was present, so that she could remove her belongings in peace. As she left the dwelling, she told the officers that her husband had drugs in the house. The officers asked the husband if they could search his home, but the husband declined them entry. The officers then dispatched another officer to obtain a search warrant. During the interim, the officers told the husband that he was not permitted to re-enter the home without being accompanied by an officer. After about two hours, the officer returned with a search warrant, and the officers found drugs. The husband was arrested, charged and later convicted.
The defendant in McArthur argued that the warrantless seizure of his home while the officers obtained a search warrant was an unreasonable seizure in violation of the Fourth Amendment. The Supreme Court began with the text of the Fourth Amendment, noted that the Court has often required a warrant for seizures, but then noted that there are exceptions to the warrant requirement, namely exigent circumstances. The McArthur Court ultimately held that exigent circumstances justified the warrantless seizure of the defendant's home, especially in light of the appropriately balanced privacy-related and law enforcement-related concerns. The Court based its holding on the combination of four circumstances: (1) probable cause to believe the defendant's home contained evidence of a crime or contraband; (2) good reason to believe that the defendant, unless restrained, would destroy the evidence; (3) reasonable efforts to reconcile law enforcement needs with the demands of personal privacy; and (4) limited period of time for the restraint's imposition. Id. at 331-32.
Here, Christie concedes that the Government had probable cause to believe he had evidence of a crime or contraband. He also concedes that the Government had good reason to believe that he would destroy evidence if he had not been restrained. And Christie concedes that the Government took reasonable efforts to reconcile the need to prevent evidence destruction with the demands of Christie's personal privacy. In other words, Christie concedes that the Government satisfies the McArthur test on the first three of four factors. It is the fourth factor--limited period of time--that Christie insists is not met in his case. That is, Christie argues that the officers "did not exercise diligence in obtaining a search warrant for the premises." (Christie Br. at 11.) Christie points to McArthur, which found that the two-hour warrantless seizure was reasonable, to support his argument "that a time period longer than 'reasonably necessary' to obtain a warrant would make the temporary seizure unreasonable and therefore unlawful under the Fourth Amendment." (Christie Br. at 11.) Christie's somewhat circular argument is no doubt true: It is unreasonable for a seizure to last longer than is reasonably necessary. But that simply begs the question of what is reasonable.
In that regard, Christie contends that the seven to eight hours that were spent waiting for the FBI to return with a new search warrant "was clearly unnecessary and should be deemed unreasonable." (Id. at 12.) Christie then observes that the drive between Newark and Newton should take "just under an hour," and thus "it remains a mystery as to why the FBI did not return until 2:00 p.m." (Id.) Christie concludes by arguing that "[e]ither it reasonably and legitimately took more than five hours to prepare and obtain the supplemental warrant, or the FBI was not diligent in so obtaining the affidavit." (Id.) Thus, it appears that Christie concedes that all but about five hours of the warrantless seizure were reasonably necessary. Even then, Christie appears to implicitly acknowledge that the FBI could "reasonably and legitimately" take five hours to obtain a supplemental warrant. The question then is whether the officers did in fact act diligently.
The Government argues that "the several hours it took agents to secure a search warrant for 68A Phillips Road is explained by the warrant process, which is circumspect by design." (Gov't Br. at 9.) Specifically, the Government explains that it "had to dispatch an FBI agent to Newark during [morning] rush hour, draft the application, search warrant, and attendant documents, present those documents to Judge Shwartz for consideration, have the judge review and comment upon those documents, and make any changes requested by the judge." (Id.) In other words, the Government contends that "[e]ven with diligence, it was a lengthy process." (Id.)
In support of its argument that the officers acted with diligence, the Government points to a couple of cases. Most persuasively for the Government's argument, the district court in United States v. Nguyen, No. 07-10050, 2008 WL 346114 (D. Mass. Feb. 7, 2008) denied the defendant's motion to suppress evidence seized after a warrantless seizure of his residence for a little more than seven hours pending the receipt of a search warrant. Id. at *3. The facts of Nguyen remarkably parallel the facts in this case. For example, there the officers restricted the defendant and other occupants of the house from entering the house without a police escort. In addition, the length of the warrantless seizure was almost exactly the same as the length in this case: seven hours.
Similarly, in United States v. Legette, 260 F. App'x 247 (11th Cir. 2008), the court of appeals upheld a district court's denial of a motion to suppress where officers detained an individual in his house for three to four hours pending a search warrant. In addition, McArthur itself relied on Segura v. United States, 468 U.S. 796 (1984), which found that the Fourth Amendment was not violated where officers unlawfully entered an apartment and occupied it for 19 hours while waiting for a search warrant that could not be obtained until the next day. Id. at 798 ("Specifically, we hold that where officers, having probable cause, . . . arrest the occupants . . . and take them into custody and, for no more than the period here involved, [19 hours], secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment's proscription against ...