United States District Court, E.D. Michigan, Northern Division
ORDER DENYING MOTION TO DISMISS
THOMAS
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
On
February 27, 2019, an indictment was returned against
Defendant Polk for one count of possession of child
pornography involving a prepubescent minor or a minor who had
not attained 12 years of age. ECF No. 1. The jury trial
commenced on September 10, 2019.
Prior
to the trial, the Government and the Defendant submitted
trial briefs at the request of the Court. The Government
outlined its theory of the case, identified each witness that
would be called, summarized the witnesses’ testimony
(including the testimony of R.P. pursuant to FRE 414), and
summarized the Defendant’s criminal history that the
Government anticipated utilizing for impeachment pursuant to
FRE 609 if the Defendant elected to testify. ECF No. 47. The
Defendant also filed a trial brief outlining his defense
which was that other family members living in his house were
responsible for the child pornography searches
(“…the members of the family living with Mr.
Polk all shareded (sic) computers and his children knew his
passwords and user names. Everyone in the house had access to
all of Mr. Polk’s internet accounts because they knew
his passwords.”). ECF No. 48 at PageID.155.
Michigan
State Police Computer Analyst Brian Pitt testified during the
government’s case about the computer devices seized
from the Defendant’s residence and the preliminary
triage of the devices for forensic review. He testified that
he found over 4, 000 images of suspected child pornography on
two of the three devices. Officer Pitt was cross examined by
defense counsel who elicited testimony from Pitt that he
identified a malicious virus on one laptop identified as
Government’s Exhibit 1 and a Windows Loader identified
as a tool that could facilitate unwanted behavior located on
Government Exhibit 2, a hard drive located on the
Defendant’s premises.
Government
counsel was apparently surprised to learn during Officer
Pitt’s cross-examination about the virus and the
Windows Loader, as she did not recall that information in
Officer Pitt’s report. At the end of the first day of
the government’s case, government’s counsel
reviewed the reports and did not locate any reference to the
viruses. Government counsel then inquired of Officer Pitt who
explained that he had run a virus scan after he completed his
initial forensic report. He then prepared a one-page
supplemental summary of his findings, dated December 17,
2018, which was never furnished to the government counsel.
Government counsel obtained a copy of that supplemental
report the afternoon of the second day of the
government’s case, on September 12, 2019, and furnished
it to defense counsel. Pitt’s report stated in two,
four, and six lines paragraphs, respectively, that he had
conducted a virus scan using Microsoft Windows Defender on
the Government’s Exhibit 1 and had located two Trojan
viruses on the device that were both located in a single zip
(compressed) file. The virus was a program that could be
dangerous and execute commands from an attacker. He also ran
a virus scan on the Government’s Exhibit 2 and located
a virus called Windows Loader.exe, which he classified as a
tool that had potentially unwanted behavior. At the time the
supplemental report was provided to the defense, Special
Agent Douglas Smith was testifying in the government’s
case.
On the
third day of the government’s case, September 13, 2019,
Defendant moved to dismiss, alleging that the disclosure of
Pitt’s report during trial was prejudicial.
See ECF No. 51 at PageID.165-170. The motion was
filed by defense counsel late on September 12, 2019. The
Court did not dismiss the indictment. It did direct the
government to make Officer Pitt available to defense counsel
for consultation about the content of his supplemental
report. Defense counsel also telephoned Mr. Kelly, his
retained forensic expert. The defense did not intend to call
Mr. Kelly as an opinion witness. The government then
completed its direct examination of FBI Special Agent Smith,
addressing in great detail the Trojan viruses found on
Exhibit 1 in the zip file. Special Agent Smith explained the
viruses were present on the computer in the zip file, but
that it had not been installed or deployed on the computer,
and that accordingly it was of no consequence. He also
testified about the malware and adware he had found on other
devices and the potential consequences of those programs.
During the cross examination of Special Agent Smith, defense
counsel extensively inquired about Pitt’s findings in
his supplemental report. The presence of Trojan viruses,
malware, and adware did not affect the special agent’s
opinion that the Defendant was the computer operator who
searched for and observed the child pornography.
Defendant
then called Officer Pitt during his case in chief and
reviewed his supplemental report findings, including the
potential consequences of these viruses on his conclusions.
Pitt testified that the Trojan viruses had no effect on the
computer, as they were contained in the zip file and not
installed. He also testified that the Windows Loader.exe
could potentially result in unwanted popups, which could
redirect the computer operator to unwanted websites, but that
more than half of the searches were conclusively initiated by
the computer operator. He also testified that the time of the
searches for pornographic material and the searches for
non-pornographic material suggested that the searches were
initiated by the computer operator.
I.
The
Brady rule imposes “a general obligation upon
the government to disclose evidence that is favorable to the
accused and material to guilt or punishment.”
United States v. Presser, 844 F.2d 1275, 1281 (6th
Cir. 1988). The obligation “encompasses both
exculpatory and impeachment evidence when such evidence is
material.” Jells v. Mitchell, 538 F.3d 478,
501 (6th Cir. 2008) (citing United States v. Bagley,
472 U.S. 667, 676 (1985)). “[T]he government typically
is the sole judge of what evidence in its possession is
subject to disclosure.” Presser, 844 F.2d at
1281. When the government fails to furnish such evidence,
suppression of the evidence is a potential remedy, but should
only be done with great caution. As provided by the Sixth
Circuit,
The goal of discovery in criminal trials is to insure a fair
and thorough determination of defendant’s guilt or
innocence. In order to reach this goal, suppression of
evidence must be viewed as an undesirable remedy reserved for
cases of incurable prejudice or bad faith conduct demanding
punishment by the court.
United States v. Maples, 60 F.3d 244, 247 (6th Cir.
1995).
This is
not such a case for a number of reasons. First, Rule 16
primarily governs information in the government
prosecutor’s possession. Officer Pitt’s
supplemental report was not in the government’s
possession here. Upon learning of the existence of
Pitt’s report, Pitt’s report was made available
for discussion during a recess. Further, defense counsel had
the opportunity to consult with his retained expert and
access the information he learned before his
cross-examination of Smith. Additionally, defense counsel
recalled Pitt during his case in chief and reviewed the
information with him carefully. There was no articulable
prejudice identified by the Defendant and any possibility of
an adverse inference was thoroughly addressed by the
defense’s cross-examination.
Moreover,
the evidence established that the computer operator, who the
jury concluded was the Defendant, had been using virus
detection software himself. Because the defense never
intended to call an opinion witness specialized in the field
of digital technology, the government did not know whether
the opinion witness or the computer operator also ...