Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Neuhard

United States District Court, E.D. Michigan, Southern Division

November 22, 2016

United States of America, Plaintiffs,
v.
Jonathon William-Durand Neuhard, Defendant.

          United States Magistrate Judge David R. Grand

         Opinion and Order Denying Defendant's Motion For Order For Select Family Members To View Images For Purposes Of Identity Investigation [59], Denying Defendant's Motion For Order For Copies Of Care House Videos [60], Granting In Part and Denying In Part Defendant's Motion For Order To Exclude Evidence Of Sexual Assaults [61], Denying Defendant's Motion For Order For Fed. R. Crim. P. 17(C) Subpoenas [62], Granting Defendant's Motion For Order For Witness List [63], and Grants Defendant's Motion For Order For Government Agents To Retain Rough Notes [64]

          Gershwin A. Drain United States District Court Judge

         I. Introduction

         Defendant Jonathon Neuhard was charged in a July 9, 2015 indictment with Production of Child Pornography, in violation of 18 U.S.C. § 2251(a); Receipt of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2); and Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Dkt. No. 12, pp. 1-3 (Pg. ID No. 21-23).

         On September 12, 2016, Defendant filed six motions with the Court: Motion for Order for Select Family Members to View Images for Purposes of Identity Investigation [59], Motion for Order for Copies of Care House Videos [60], Motion for Order to Exclude Evidence of Sexual Assaults [61], Motion for Order for Fed. R. Crim. P. 17(C) Subpoenas [62], Motion for Order for Witness List [63], and Motion for Order For Government Agents To Retain Rough Notes [64].

         A hearing was held on the motions on November 17, 2016. Having considered the parties' briefs in support of and in opposition to Defendant's motions, as well as oral arguments at the hearing, the Court now is prepared to rule on Defendant's motions. For the reasons stated below, the Court grants in part and denies in part Defendant's motions.

         II. Background

         On March 10, 2015, an individual (“Reporting Person, ” or “RP”) reported to the Madison Heights Police Department that Defendant had sexually assaulted her minor daughters. Dkt. No. 77, p. 2 (Pg. ID No. 307). Her daughters were ages nine (hereinafter, “Minor Victim One, ” or “MV-1”) and seven (hereinafter “Minor Victim Two, ” or “MV-2”). Id.

         Detective Sergeant Marc Zupic interviewed RP on March 11, 2015. Id. During the interview with Zupic, RP stated that she had left her daughters in the care of Defendant and his wife on February 20, 2015. Id. MV-1 later told RP that Defendant took her to the basement, showed her pornographic movies, asked her if she was ready to have sex, and tried to put his hand down her pants. Id. Defendant had resided at a residence on Brettonwoods Street in Madison Heights at the time of the abuse, but he was asked to move out after MV-1 and MV-2 disclosed their abuse. Id. He relocated to a residence on Christine Terrace. Id.

         A week later, on March 17, 2015, MV-1 was interviewed by a child forensic interviewer while Zupic observed from another room. Id. at 3. MV-1 stated that Defendant had taken her down to the basement to watch a pornographic video of a male and female engaging in oral sex and intercourse. Id. Defendant allegedly told MV-1 that “this is what you have to do to me” and then tried to put his hand down her pants. Id. MV-1 states that Defendant then took off his pants and underwear, attempted to take off her pants, and said “let me lick it, ” in reference to MV-1's genitals. Id. MV-1 further stated that she saw Defendant's penis and that Defendant began to masturbate in front of her. Id.

         MV-1 also stated that Defendant had abused her when she was younger. Id. When she was eight years old, MV-1 stated that Defendant tried to put his tongue in her mouth, touched her inside her clothes, and rubbed her genitals. Id. MV-1 stated that Defendant tried to put his penis in her vagina and that Defendant's actions caused her pain. Id. Additionally, MV-1 stated that Defendant took pictures of her bare chest and genitals with his cell phone when she was seven or eight years old. Id. at 4. MV-1 also stated that Defendant pushed her head down so that his penis was in her mouth, and then “white stuff came out.” Id. MV-1 did not tell anyone because she said that Defendant raised a knife and threatened to kill her. Id. The alleged abuse occurred at the residence on Brettonwoods, according to MV-1. Id. at 2-4.

         MV-2's forensic interview commenced shortly after MV-1's was completed. Id. at 4. MV-2 stated that when she was six years old, Defendant reached inside her underwear and put his hand inside of her genitals, causing her pain. Id. MV-2 stated that this incident occurred in the backyard of the residence on Brettonwoods. Id. Defendant allegedly held a blade and threatened to “beat the hell out of” MV-2 if she told anyone. Id.

         On March 26, 2015, a state court magistrate judge signed a warrant that authorized the search of Defendant's current residence. Id. at 5. The warrant was executed on April 1, 2015, and several electronic items, including computers, tablets, and a phone, were seized. Id.

         Forensic examination uncovered four images of child pornography on a memory card seized in the search. Id. The photos' metadata indicated that the photos were taken with a cell phone matching the one seized from Defendant's residence. Id. at 6. One image depicted a prepubescent female's vagina; two images depicted a prepubescent female's vagina with the hand of an adult spreading the labia; and one image depicted an adult male's penis penetrating a prepubescent female's vagina. Id. at 5. In the photo, the child is sitting on what appeared to be a black and white zebra-striped sheet or blanket. Id. A blanket matching this description was visible in a dresser drawer of Defendant's home, as shown in photographs taken during the execution of the warrant. Id.

         Additionally, examination of one of Defendant's computers resulted in the discovery of one image and two videos containing suspected child pornography. Id. at 6.

         III. Discussion

         A. The Court Will Deny Defendant's Motion to Allow Defendant's Family Members to View Images

          In Defendant's first motion, he requests the Court enter an order allowing his wife to view the images of child pornography for the purpose of “investigating the identity of the alleged perpetrator, ” whose hands and genitals are visible in some of the images. Dkt. No. 59, pp. 1-2 (Pg. ID No. 213-14). Additionally, Defendant would like the victim's maternal grandmother to view the images to advise defense counsel whether the child in the photographs was MV-1, Defendant's niece. Id.

         The Government argues that this motion should be denied because federal law prohibits providing copies of child pornography images to Defendant's family and because the images are available for Defendant's counsel to view at a Government facility. Dkt. No. 77, pp. 7-13 (Pg. ID No. 312-18). Further, the Court has already entered a stipulation and order allowing Government agents to bring the alleged child pornographic videos and images into lock-up for Defendant to view. Dkt. No. 93.

         The Adam Walsh Child Protection and Safety Act of 2006 provides that “[i]n any criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody, and control of either the Government or the court.” 18 U.S.C. § 3509(m). A court must deny “any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography, ” “so long as the Government makes the property or material reasonably available to the defendant.” 18 U.S.C. § 3509(m)(2)(A). “Even though Criminal Rule 16(a)(1)(E) usually allows defendants to copy material documents in the government's possession, the Act requires federal courts to deny these requests when the materials contain child pornography, instead permitting the defendant only to have an ‘ample opportunity for inspection, viewing, and examination at a Government facility.' ” Doe v. Boland, 630 F.3d 491, 495 (6th Cir. 2011) (quoting 18 U.S.C. § 3509(m)(2)(B)).

         In these limitations, Congress expressly restricted who many inspect, view, or examine child pornography: the “property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.” 18 U.S.C. § 3509(m)(2)(B). Accordingly, only Defendant, his attorney, and his expert witnesses may view the images. See id. Because Defendant has not argued that he is seeking to qualify his wife and the victim's grandmother to furnish expert testimony at trial, the Court will not permit them to view the images.

         The Court will also deny Defendant's request for the Government to produce redacted versions of the child pornography images to be viewed by his wife and the victim's grandmother. As referenced earlier, Congress has prohibited the Court from allowing duplication or reproduction of material that constitutes child pornography, so long as such material is reasonably available to the defendant. 18 U.S.C. § 3509(m)(2)(A).

         Defendant argues, citing to United States v. Stewart, 729 F.3d 517, 528 (6th Cir. 2013), that since a defendant could transform a non-pornographic image of a child into child pornography by cropping, the Government could redact an image that does constitute child pornography in such a way that it would no longer meet that definition. The Court is unpersuaded. In Stewart, original photos of naked children playing on a beach were cropped and brightened with photo-editing software such that the edited product focused solely on the children's genitalia. 729 F.3d at 522. In the present case, the original photos focused solely on the minor female's genitalia, an adult hand spreading the minor female's labia, and an adult male's penis penetrating the minor female's labia. There is no means of uncropping the images, such that the photographs would no longer qualify as child pornography, like the original images in Stewart.

         Consequently, the Court will not order the Government to transform child pornography into general pornography, focusing solely on the perpetrator's penis or hands spreading a minor's labia, through some exercise in creative redaction. Denying Defendant such a remedy is consistent with 18 U.S.C. § 3509(m), Defendant's constitutional rights, and existing case law. See Doe v. Boland, 630 F.3d 491, 496 (6th Cir. 2011) (“Nor do reasonable limits on defense counsel's access to the child pornography at issue in a criminal case, whether old or new, raise constitutional concerns.”); United States v. Healey, 860 F.Supp.2d 262, 271 (S.D.N.Y. 2012) (noting that “the Government is not required to create a document to respond to a defense request for discovery” in a child pornography case); United States v. Cameron, 672 F.Supp.2d 133, 141 (D. Me. 2009), amended (Nov. 30, 2009) (finding the government did not have an obligation to remove child pornography and produce the non-illicit photos from album). This motion is DENIED.

         B. The Court Will Deny Defendant's Motion for Copies of Care House Videos

         In his second motion, Defendant seeks copies of the videos of the minor victims being interviewed at the Oakland County CARE House for review by himself, his counsel, and experts hired by his counsel. Dkt. No. 60. He argues that it would be very burdensome for his counsel to transport him to a government facility every time he wanted to review the videos. Id. at 4. Additionally, he argues that it would be more costly for his expert to travel to Detroit each time he wanted to review the videos. Id.

         The Government does not dispute that the videos may contain prior statements that will be considered Jencks material, once the minor victims testify on direct examination at trial. Dkt. No. 78, p. 2 (Pg. ID No. 321). See also 18 U.S.C. § 3500(a) (“In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness . . . (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”). Further, the Government states that it has already made those interviews available to defense counsel and will provide transcripts of the interviews to the defense as soon as they are available, no later than two weeks before trial. Id. at 3.

         The Court concludes that the Government's solutions-i.e., allowing defense counsel to view the videos at a government facility and providing transcripts of the interviews at least two weeks prior to trial-satisfies the Government's obligations. Consequently, this motion is DENIED.

         C. The Court Will Grant In Part And Deny In Part Defendant's Motion to Exclude Evidence of Sexual Assaults

         Defendant's third motion seeks to exclude evidence of the prior sexual assaults, specifically those against MV-1 and MV-2 that were unrelated to the production or possession of child pornography, relying on Federal Rules of Evidence 401 and 402. Dkt. No. 61, p. 1 (Pg. ID No. 227). Should the minor victims testify, “Defendant reserves the right to file a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.