United States District Court, E.D. Michigan, Southern Division
States Magistrate Judge David R. Grand
and Order Denying Defendant's Motion For Order For
Select Family Members To View Images For
Purposes Of Identity Investigation ,
Denying Defendant's Motion For Order For Copies
Of Care House Videos , Granting In Part and
Denying In Part Defendant's Motion For
Order To Exclude Evidence Of Sexual Assaults
, Denying Defendant's Motion For Order For Fed. R.
Crim. P. 17(C) Subpoenas , Granting Defendant's
Motion For Order For Witness List , and
Grants Defendant's Motion For Order For
Government Agents To Retain Rough Notes 
Gershwin A. Drain United States District Court Judge
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).
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 , Motion
for Order for Copies of Care House Videos , Motion for
Order to Exclude Evidence of Sexual Assaults , Motion for
Order for Fed. R. Crim. P. 17(C) Subpoenas , Motion for
Order for Witness List , and Motion for Order For
Government Agents To Retain Rough Notes .
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
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”).
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
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.
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.
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.
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.
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
examination of one of Defendant's computers resulted in
the discovery of one image and two videos containing
suspected child pornography. Id. at 6.
The Court Will Deny Defendant's Motion to Allow
Defendant's Family Members to View Images
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.
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.
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)).
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.
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).
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
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.
The Court Will Deny Defendant's Motion for Copies of Care
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.
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.
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.
The Court Will Grant In Part And Deny In Part Defendant's
Motion to Exclude Evidence of Sexual Assaults
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