United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
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.
Factual and Procedural Background
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.
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
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.
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.
reviewing the affidavit and the application for warrant, the
U.S. Magistrate Judge approved and issued the search warrant
on September 22, 2014.
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.
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.
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.
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.
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.
Motion to Dismiss Indictment (Doc. 27)
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 and Arizona v.
Youngblood. 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.
Additional Factual and Procedural Background
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.
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.
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.
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. 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.
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
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.
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.
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
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.
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.
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 ...