The opinion of the court was delivered by: McLAUGHLIN, Sean J.
Presently pending before the Court is a motion to suppress filed by Defendant George L. Eberle, and a motion to for separate trials as between Defendants George L. Eberle and Defendant Alisha M. Eberle on Counts Three and Four of the indictment. Defendant Alisha Eberle has joined in each of the motions. For the reasons discussed below, the motions are denied.
George L. Eberle ("Mr. Eberle") and his wife, Alisha M. Eberle ("Mrs. Eberle") were charged in a four count indictment with conspiring to violate the laws of the United States in violation of 18 U.S.C. § 371 (Count I) and using a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. § 2251(a) (Count II).*fn1 Counts III and IV of the indictment charge Mr. Eberle and Mrs. Eberle with knowingly receiving visual depictions of minors engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2), and possession of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4)(B), respectively. These charges, which form the basis of the motions addressed herein, stem from a search of the Eberle's computer in March of 2005.
A suppression hearing was held on March 7, 2006, and the following constitutes this Court's findings of fact. On August 9, 2004, the legal department for Yahoo!, a major internet content provider, contacted the National Center for Missing and Exploited Children (NCMEC) to report that suspected child pornography had been posted to a yahoo site titled http://photos.yahoo.com/glepa2001. According to the information provided by Yahoo!, a person using the email address "email@example.com" had uploaded photographic images of a child who appeared to be under the age of 18 exposing her genitals while in a sexual act or pose. Pursuant to a court order, Yahoo! revealed that the "glepa2001" account was registered to Mr. george e." with a date of birth of October 5, 1978, and an address in Corry, PA.
Because the address listed for the account was in Corry, the investigation was referred to the Erie County District Attorney's Office, where it was assigned to Erie County Detective Jessica Lynn. Working with postal inspectors, Detective Lynn ascertained that Defendant George Eberle and his wife, Defendant Alisha Eberle, resided at the address in question. Detective Lynn also discovered that the Eberles possessed a home computer, rented from House of Television Rental in Corry, Pennsylvania, as well as a webcam.
On August 20, 2004, as a result of his failure pay the rental fee for the home computer, employees for House of Television recovered the computer from Mr. Eberle, "wiped" the hard drive, and re-rented the computer to another customer. "Wiping" is a method of deleting all files and data associated with a prior user from a hard drive so that a computer may be safely transferred without a subsequent user being able to access the prior user's information. Generally, once a computer has been "wiped," any information contained on that computer is removed to "unallocated space." Data that has been relegated to unallocated space on a drive may only be recovered by a forensic procedure known as "data carving." As described at the suppression hearing by Mark Ganley, an expert witness for the defense:
Typically, on a hard drive all of the files are referenced in a table of contents on the drive, it says here's where the file is. Well, when you delete a file, it removes it from the table of contents. But the file is still on the drive, it doesn't actually go and remove the file. So when you carve data, what you do is look in this unallocated space that's considered to be empty space, and the data carving looks for patterns that indicate a certain type of file. Web pages will have a certain pattern. And it carves the data, basically, from the empty space. (Transcript from Suppression Hearing, March 7, 2006, p. 131).
After discovering that Mr. Eberle's computer had been repossessed for lack of payment, Detective Lynn contacted the House of Television and learned that Mr. Eberle had possessed the computer from January 21, 2004, until repossession on August 20, 2004. On September 3, 2004, Detective Lynn obtained a search warrant for the computer and seized it from the House of Television. Detective Lynn then utilized a computer program known as "Forensic Tool Kit" to attempt to recover any images associated with the Eberles from the unallocated space of the computer. As indicated in this exchange from the suppression hearing, Detective Lynn failed to uncover anything of evidentiary value:
Q: Did you find anything of evidentiary value on the computer?
Q: And let's take that and do a few steps. Do you find child pornography on the computer?
Q: Do you find anything in any way linking that computer to these two defendants?
A: No, I did not. (Transcript, pp. 21-22). Detective Lynn, in fact, was unable to find any evidence whatsoever connecting that computer to the Eberles, despite searching for "Eberle," "George," "Alisha," and the screen name "glepa2001" in the unallocated space.
Detective Lynn then performed a more targeted search known as a "hash value check," whereby she searched for a specific identifier, known as an MD5 hash, that is particular to an internet image, much like a fingerprint. This hash check similarly failed to uncover any of the images that had been uploaded onto the Yahoo! server in 2001.
As a result of finding no evidence connecting that computer to the Eberles, Detective Lynn formed a conclusion that the computer given to her by the House of Television was not the same computer rented by the Eberles in 2004. At that point, Detective Lynn closed her investigation of Mr. Eberle.
On March 23, 2005, the Corry Police Department received a report that T.S., Mrs. Eberle's half-sister, had been sexually assaulted by Mr. and Mrs. Eberle in August/September 2001, when T.S. was twelve years old. A forensic interview of T.S. was conducted on March 24, 2005, during which T.S. described staying with the Eberles for several days in 2001. T.S. asserted that, while staying with the Eberles, she was frequently fondled and groped by both Mr. and Mrs. Eberle. She further claimed that Mr. Eberle forced T.S. to have sexual intercourse with her while Mrs. Eberle videotaped the assault. Additionally, and relevant to this motion, T.S. asserted that the Eberles had forced T.S. to remove her clothing while they took photographs of her in various states of undress, as well as completely nude, using their webcam. She stated that the Eberles' saved these images to their computer's hard drive and showed them to her later.
In January of 2005, T.S. was contacted in an internet chat room by Mrs. Eberle. This encounter revived her memories of the assault, and T.S. disclosed what had happened to her mother. T.S. then phoned Mrs. Eberle while her mother listened on a third line. During the ensuing conversation, Mrs. Eberle discussed the assault with T.S., informed her that the videotape of that event had been destroyed, and indicated that the Eberles would like to make another video with T.S. At some point, Mr. Eberle joined in the conversation and expressed his pleasure that T.S. wanted to make another videotape with them.
Following the forensic interview of T.S., Detective Lynn and another detective spoke with T.S. about the photographs taken with the webcam. Detective Lynn asked T.S. to identify whether she had been wearing any jewelry at the time of the assault, and T.S. disclosed that she often wore a silver ring and a necklace during that time period. After comparing the described jewelry items to those worn by the girl in the images uploaded to the glepa2001 account, Detective Lynn showed those images to T.S. T.S. then ...