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United States v. Rogers

United States District Court, D. Kansas

January 28, 2019




         This matter comes before the Court on three different motions by Defendant Timmie Joe Rogers: a Motion to Dismiss Indictment (Doc. 27), Motion to Suppress Illegally Seized Evidence (Doc. 28), and Motion to Suppress Facebook Warrant (Doc. 29). For the reasons described in more detail below, the Court finds that Defendant's motions to suppress evidence are without merit and denies them. The Court also declines to dismiss the indictment against Defendant, but the Court will partially limit witness testimony.

         I. Factual and Procedural Background

         In September 2014, FBI Agent Kuhn submitted an affidavit and application for a search warrant of Defendant's Facebook account. In this affidavit, she stated that she learned from Defendant's ex-wife about sexual conversations on Facebook between Defendant and young females. Screenshots of these messages were provided to Agent Kuhn.

         After reviewing those messages, the agent identified at least two minor victims and stated that Defendant knew that at least one of the females was a minor. In addition, Agent Kuhn set forth the content of the Facebook conversations in the affidavit. Agent Kuhn stated that the content suggested an on-going relationship with the minors that pre-dated the screenshots.

         Agent Kuhn sought nine categories of information to be disclosed from Facebook. This included (1) all contact information; (2) all photoprints; (3) all neoprints; (4) all communications and messages made or received by Defendant, including private messages; (5) all IP logs; (6) all information about Defendant's access and use of Facebook marketplace; (7) the length of service, types of service, and source of payments associated with the service; (8) all privacy settings and other account settings; and (9) all records pertaining to communications between Facebook regarding Defendant or Defendant's user account.

         She also stated what information would be seized by the government. This included such information as (1) records relating to who created, used, communicated, or controlled Defendant's account; (2) communications between Defendant and one minor (J.J.); (3) communications between Defendant and a second minor (D.W.); (4) communications between Defendant and any person or entity which demonstrates sexual interest in or sexual exploitation of minors; and (5) date or content that relates to enticing a child, production of child pornography, distribution/receipt/possession of child pornography, or which otherwise demonstrates a sexual interest in or sexual exploitation of minors.

         After reviewing the affidavit and the application for warrant, the U.S. Magistrate Judge approved and issued the search warrant on September 22, 2014.

         The case was reassigned from Agent Kuhn to Agent Jason Velazco in October 2017. Agent Velazco interviewed D.W., at her place of work, on October 19, 2017. In this interview, D.W. remembered meeting Defendant several years prior. She did not recall if Defendant knew her age. D.W. also remembered having sexual conversations with Defendant and meeting him in person. D.W. stated that they did not have sex. In addition, D.W. could not recall whether she sent any nude images to Defendant but thought that it was possible that she did. She stated that some of the photographs D.W. sent were images downloaded from the internet that she stated were not really of her.

         Agent Velazco scheduled an additional follow-up interview with D.W. for November 1, 2017. This interview occurred at the Salina Child Advocacy Center (“CAC”). An FBI Child/Adult Forensic Interviewer conducted this interview. Agent Velazco and an FBI Victim Specialist observed the interview from a different room. The interview was video recorded at the facility with the Salina CAC equipment.

         An issue occurred with the recording equipment. Only the first five minutes and the last three minutes of the interview were recorded both visually and audibly. There is a forty-nine minute time-gap that failed to record. As will be discussed in more depth below, the missing 49 minutes of audio and video from the recording, and the failure to notice the missing minutes until May 2018, impacted this case and led to one of the motions at issue.[1]

         In February 2018, the government charged Defendant Rogers with two counts of sex trafficking a minor pursuant to 18 U.S.C. § 1591(b)(2). The first count allegedly happened on March 30, 2014, and the second count allegedly happened on July 7, 2014.[2]

         Defendant has filed three motions: a Motion to Dismiss Indictment (Doc. 27), Motion to Suppress Illegally Seized Evidence (Doc. 28), and a Motion to Suppress Facebook Warrant (Doc. 29). The Court held a hearing on these motions on November 26, 2018. The Court will address each motion in turn.

         II. Analysis

         A. Motion to Dismiss Indictment (Doc. 27)

         Defendant requests that the Court dismiss the indictment against him because he asserts that the government violated his due process rights and its own discovery obligations. He contends that he has a due process claim under the standards set forth in California v. Trombetta[3] and Arizona v. Youngblood.[4] Defendant asserts that the appropriate remedy is dismissal of the charges against him. In the alternative, Defendant requests that the Court exclude the witness from testifying or limit the witness' testimony.

         1. Additional Factual and Procedural Background

         As noted above, an interview with D.W. occurred on November 1, 2017, at the CAC. Agent Velazco did not conduct the interview, but he was present and observed the interview from another room. The interview was also recorded.

         In February 2018, during discovery of this case, the government provided a written report by Agent Velazco summarizing his initial October 19, 2017, interview and the in-depth interview on November 1, 2017. In addition, the government provided a video recording of the November 1 interview.

         When Defendant's counsel played the video, it was not complete. It played approximately the first five minutes and then the video and audio cut out, and a blank screen showed for about 49 minutes. The recording restarted and contained approximately three minutes of recorded material. During the recorded times, Defendant is not mentioned.

         On March 30, 2018, Defendant's counsel contacted the government and stated that the video was not playing and that the media data folders were empty. Several days later, the government provided Defendant a new copy of the interview and indicated that the video had been checked and it played. The government did not watch the entirety of the video but instead only checked the beginning of the video to see if it played.[5] Several weeks later, on April 27, 2018, Defendant contacted the government again and stated that this video was also defective. In this email, Defendant indicated that the video skipped from about 9:39 to 10:39.

         The government then contacted the agent to determine if his video copy skipped. In this email, the government first incorrectly told the agent that the video skipped for approximately one minute. The government also sent a second email to the agent that day indicating that the video skipped from 9:39 to 10:39.

         On the same day, the agent responded by email to government's counsel and stated that he had reviewed his copy and there did not appear to be an issue with skipping. During the hearing, the agent stated that he played the video, but he did not pay close attention to it. He did not look at the specific time that he was informed that the video skipped, and he was multi-tasking while watching it, so he did not notice the missing 49 minutes. The agent made a copy of the video and provided it to the government on a flash drive who then provided it to defense counsel.

         The government stated in its April 30 email to defense counsel that the agent checked the original and that it did not skip. Later that day, the government emailed defense counsel (and carbon copied the agent on the email) stating that the government was going to pick up the flash drive with the copied interview. The government also stated in this email that the agent had verified that the whole interview was on the flash drive. Furthermore, the government stated that the agent was willing to watch the video with defense counsel should there be any additional problems.

         On May 14, 2018, several weeks after being provided the video, defense counsel contacted the government for a third time stating that 49 minutes of audio and video was missing in the middle of the recording. On this date, the government noticed that the “skip gaps during playback” function had been activated. Once Agent Velazaco was made aware of this function, he reviewed his disk and found that his copy also did not contain the 49 minutes of audio and video and only contained eight minutes of the approximate hour-long interview.

         On May 17, 2018, Agent Velazco contacted the government and defense noting that his video had the same time gap on it. He also stated that he had contacted the CAC but did not believe that there would be a complete copy of the video available. After Agent Velazco verified that the CAC did not retain any additional data, Agent Velazco prepared an additional report based on his recollection of the November 1, 2017, interview.

         On June 14, 2018, defense counsel contacted the government to request a third continuance. The government objected to this request. Defendant requested a continuance but did not state that there were any discovery problems.

         On July 13, 2018, the Court held a hearing on Defendant's request for continuance. During this hearing, the parties brought up the issue with the video. The Court ...

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