The opinion of the court was delivered by: A. Richard Caputo United States District Judge
Presently before the Court is Defendant Lewis John Davies' Supplemental Pre-Trial Motions (Doc. 94.) Defendant's motion seeks to 1) suppress a CD that allegedly contains child pornography that was seized from Defendant's home pursuant to a search warrant, 2) sever Counts I and II of the superseding indictment, 3) dismiss Count III of the superseding indictment because it is multiplicitous of Count I, and 4) have the government return property seized from Defendant. (Doc. 94.) Also before the Court is Defendant's Motion to Dismiss Count I of the superseding indictment. (Doc. 100.)
In 2008, Defendant was under investigation by the Federal Bureau of Investigation ("FBI") for potential violations of internet solicitation of a minor to engage in sexual activity pursuant to 18 U.S.C. § 2422(b). On June 12, 2008, a search warrant was issued for Defendant's home; the warrant authorized law enforcement officials to seize certain property as evidence of criminal activity in violation of 18 U.S.C. § 2422(b) and 18 U.S.C. §§ 2252, 2252A, which make it illegal to knowingly receive, possess, or attempt to possess child pornography. An attachment to the warrant listed the items to be seized and searched as all visual depictions of child pornography as defined by 18 U.S.C. § 2256, including all computers, disks, cables and other items, all computer passwords, all documents, records, emails, internet history pertaining to violations of 18 U.S.C. § 2256, and any records, documents, invoices, notes and materials that pertain to accounts with an internet service provider.
The affidavit for probable cause claims to set forth facts relevant to establish probable cause of violation of 18 U.S.C. § 2422(b) and 18 U.S.C. §§ 2252, 2252A. According to the affiant Jennifer Welsh, who was also the FBI agent who conducted the investigation, Defendant engaged in several internet chats and messages with the agent, who posed as a fourteen-year-old girl. Defendant also allegedly sent pictures of his genitalia to the agent, indicated that he would like to take pictures of the agent on his pool table, commented that he would like to see nude photographs of the agent, and described his house and told the agent the block on which he lived.
The affidavit went on to explain that the agent traveled to the block described by Defendant, and found a house matching the description that Defendant had given to the agent. It also noted that a 2006 study by the National Center for Missing and Exploited Children, the Crimes Against Children Research Center, and the Office of Juvenile Justice and Delinquency Prevention found that 43% of the offenders who solicited undercover investigators posing online as minors also possessed child pornography. Magistrate Judge Malachy E. Mannion issued the warrant on June 12, 2008.
On June 13, 2008, agents executed the warrant on Defendant's residence and recovered over thirty (30) pieces of property, including laptops, desktops, thumb drives, CD's, floppy disks, a video camera, and cables. Among the items seized was a CD that allegedly contains a ten second video clip of a minor engaging in sexual activity.
On June 17, 2008, a grand jury issued a one-count indictment, charging Defendant with knowingly attempting to persuade, entice, or induce a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b) (Count I). Defendant filed a motion to dismiss, which was subsequently denied as moot when the government filed a superseding indictment that added charges for possession of child pornography pursuant to 18 U.S.C. § 2252(a)(4)(B) (Count II) and knowingly attempting to transfer obscene material to an individual under the age of sixteen (16) pursuant to 18 U.S.C. § 1470 (Count III).
On January 28, 2010, Defendant filed the instant motion seeking to 1) suppress a CD that allegedly contains child pornography that was seized from Defendant's home pursuant to a search warrant, 2) sever Counts I and II of the superseding indictment, 3) dismiss Count III of the superseding indictment because it is multiplicitous of Count I, and 4) have the government return property seized from Defendant. On April 12, 2010, Defendant re-filed his Motion to Dismiss Count I of the superseding indictmnet. These motions are fully briefed and are currently ripe for disposition.
Defendant argues that the CD allegedly containing child pornography should be suppressed because the warrant authorizing seizure of the CD was issued ...