United States District Court, D. Maryland, Northern Division
William D. Quarles, Jr. United States District Judge
Richard Alan Blank is charged with two counts of production of child pornography and possession of child pornography. ECF No. 4. A motions hearing was held on June 29, 2015. Pending were Blank's motions: (1) to suppress evidence seized at Blank's Maryland residence (ECF No. 32), to suppress evidence seized at Blank's cabin in West Virginia (ECF No. 33), to suppress cell phone evidence (ECF No. 34), to suppress Blank's DNA sample (ECF No. 37), to exclude photos and other evidence obtained from Blank's cell phone (ECF No. 60), to admit evidence under Federal Rule of Evidence 412 (ECF No. 67), to exclude jail recordings (ECF No. 83), to dismiss the indictment for lack of jurisdiction (ECF No. 84), to dismiss the indictment based on lost or destroyed evidence (ECF No. 86), and to exclude pornographic videos and magazines (ECF No. 88) . Also pending were the Government's motions to introduce evidence under Federal Rule of Evidence 404(b) (ECF No. 62) and to preclude cross examination on the victim's sexual and mental health history (ECF No. 65).
For the following reasons, the Court denied the motions to suppress evidence from Blank's Maryland residence, suppress evidence from the West Virginia cabin, suppress Blank's DNA sample, suppress evidence from Blank's cell phone, admit evidence under Rule 412, exclude jail recordings, dismiss for lack of jurisdiction, dismiss based on destroyed evidence, and exclude pornographic videos and magazines. The Court deferred until trial ruling on the motion to exclude photos and other evidence obtained from Blank's cell phone to give the Government an opportunity to lay a proper foundation. The Court granted the motion to preclude cross examination on the victim's sexual and mental health history. Finally, the Court granted in part and denied in part the Government's motion to admit evidence under Rule 404(b).
In April 2014, 15-year-old Jane Doe moved from Iowa to live with her mother and step-father, Richard Alan Blank, in Maryland. See ECF No. 36-2 at 3 (state search warrant affidavit). In May 2014, detectives with the Allegany County Combined Criminal Investigations ("C3I") task force received a report that Jane Doe had texted her friend in Iowa about having sex with Blank. See ECF No. 36-1 at 7 (state search warrant affidavit). On May 7, 2014, Detective Harold Dixon of C3I investigated the report; however, Blank and Jane Doe denied that any sexual contact had occurred. See Id. Jane Doe "said that the reason she sent the false texts was because she felt lonely and was looking for attention from her friends in Iowa." ECF No. 86 at 2. The investigators had Jane Doe prepare a written statement, and, on May 14, 2014, the investigation was closed for lack of substantiation. See id.
On June 2, 2014, Jane Doe's mother and Jane Doe went to the Maryland State Police Barracks in LaVale, Maryland to report that Jane Doe was being sexually abused by Blank. ECF No. 36-1 at 8. Jane Doe's mother asserted that she had become suspicious of Blank following the May 7, 2014 interview. Id. On May 30, 2014, she had placed a hidden camera in Jane Doe's bedroom. Id. When Jane Doe's mother reviewed the video, it showed Jane Doe and Blank having sex, as well as Blank taking nude pictures of Jane Doe with his cell phone. Id.
C3I investigators interviewed Jane Doe "regarding the contents of the tape and Blank's sexual abuse." ECF No. 36-1 at 8. Jane Doe relayed what had happened on the tape and detailed eight prior occurrences of sexual abuse starting on May 5, 2014. Id. at 8-10. On June 2, 2014, "a traffic stop was conducted involving [Blank] just outside his house, " and Blank was arrested. ECF No. 41 at 4. "At that time, . . . Detective Sergeant Cook located and seized [Blank's] cell phone from inside the Defendant's truck on the center console. The Defendant was transported to the Cumberland Police Department. With the Defendant's permission, Detective Sergeant Cook drove the truck from the street and parked it in the Defendant's driveway." Id.
The detectives did not search the phone or its contents at the time of the arrest. See ECF No. 36-2 at 5. Detective Dixon immediately applied for search warrants to search the Blanks' home and the contents of the phone. Id. The warrants were issued on June 2, 2014 by Judge Timothy Finan of the Circuit Court of Maryland for Allegany County. Id. "Investigators did not recover any additional computers or digital storage media, but did seize bedding, a tube of lubricant, a . . . vibrator, and a scarf" after searching the Maryland residence. Td. at 11. The detectives obtained a search warrant to compare Blank's DNA to DNA recovered from the physical evidence. See ECF No. 37. "Blank was charged in Allegany County with over forty counts related to the sex abuse of a minor and related sex offenses . . . . " Id. at 12.
On July 21, 2014, Detective Dixon interviewed Jane Doe's mother again. ECF No. 36-1 at 12. Detective Dixon "learned of computers and additional storage devices possibly located at a cabin in Slanesville, West Virgina." Id. Jane Doe's mother alleged that after the interview by law enforcement on May 7, 2014, her husband "had gathered much of the electronic storage devices from their home in LaVale, Maryland, placed them in his vehicle and delivered them to the Blanks' cabin . . . ." Id. On August 12, 2014, Jane Doe's mother gave detectives written consent to search the cabin for electronic media and storage devices, and accompanied them to the cabin. Id. Detectives seized four desktop computers, two laptop computers, and an external hard drive. Id. at 2.
On August 19, 2014, Special Agent Jeff Stewart of Homeland Security Investigations ("HSI") applied for a federal search warrant to search Blank's cell phone and the electronic devices recovered from the cabin. ECF No. 36-1 at 2. Federal agents recovered two nude photos of Jane Doe from the cell phone. From the devices recovered from the cabin, "forensic analysis showed that two of the computers . . . contained recent file links, internet explorer web browser search and web visit history with names indicative of child pornography." ECF No. 62 at 3. The hard drive "was determined to contain four audio files: one of those audio files is a recording of the May 30, 2014 incident of sexual abuse, and two additional recordings appear to have been created during the same time frame." Id.
On September 25, 2 014, a grand jury indicted Blank on two counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). ECF No. 4. Trial was scheduled for June 29, 2015. ECF No. 19.
A. Blank's Motions to Dismiss the Indictment
On June 19, 2015, Blank filed two motions to dismiss the indictment. ECF Nos. 84, 86. The motions contain information that was available to counsel long before the motions deadline; however, counsel provided no explanation why the motions were filed only a week before trial. Out of an abundance of caution for Blank's rights, the Court considered these motions and all subsequent motions filed by counsel on their merits; however, in the future, counsel should endeavor to conform to the deadlines ordered by the Court or provide an explanation for the motion's lateness.
1. Motion to Dismiss for Lack of Jurisdiction
The photos at issue in the indictment were taken by Blank on his cell phone, "which was not manufactured in Maryland." ECF No. 4 at 2. "The photos were never uploaded to the internet, transmitted through cellular technology, or otherwise shown to others. The photos never left the state of Maryland." ECF No. 84 at 3. Thus, because "[a]11 the conduct of the alleged relationship took place in the state of Maryland, " Blank argues that "the government is using § 2252 to unconstitutionally prosecute the state law crime of statutory rape. Yet none of  Blank's conduct is sufficient to invoke federal jurisdiction under the Commerce Clause." Id.
In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court examined a similar challenge to the Controlled Substances Act ("CSA"). Users and growers of medical marijuana argued that the CSA was unconstitutional as applied to them because their actions were purely local and had a de minimus effect on interstate commerce. Id. at 5-10. The Supreme Court rejected this argument, finding that Congress "devised a closed regulatory system" in order to "conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances." Id. at 13.
The Raich Court emphasized that "Congress [has] power to regulate purely local activities that are part of an economicvclass of activities' that have a substantial effect on interstate commerce." Id. at 17. "In assessing the scope of Congress' authority under the Commerce Clause, [the Court] stress[ed] that the task . . . is a modest one. [A court] need not determine whether [a defendant's] activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a 'rational basis' exists for [Congress] so concluding." Id. at 22. Thus, the CSA was constitutional as applied to the purely local sale of marijuana. Id.
In the United States v. Forrest, 429 F.3d 73 (4th Cir. 2005), the Fourth Circuit applied Raich to the child pornography statutes at issue in this case. Like Blank, Forrest took sexual photos of a minor in Maryland, and the photos never left Maryland. Id. at 76. At trial, the Government presented evidence that the cameras used to take the photos were manufactured outside Maryland, and the jury returned guilty verdicts on all counts. Id. On appeal, Forrest argued that 18 U.S.C. §§ 2251(a) and 2252A(a)(5)(B) were unconstitutional as applied to him "because his private production and possession of child pornography did not substantially affect interstate commerce." Id. at 77.
The Fourth Circuit reasoned that in passing §§ 2251(a) and 2252A(a)(5)(B), Congress exercised its Commerce Clause authority to regulate "'quintessentially economic' activities, i.e., those involving the 'production, distribution, and consumption of commodities.'" Id. at 78 (quoting Raich, 545 U.S. at 17).
Just as Congress rationally concluded that demand might draw homegrown marijuana into interstate markets, thereby "frustrat[ing] the federal interest in eliminating commercial transactions in the interstate market in their entirety, " id. at 2207, so too might Congress rationally fear that homemade child pornography would find its way into interstate commerce. Cf. Id. at 2212 ("The congressional judgment that an exemption for such a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity."). Indeed, this concern is especially salient in the context of child pornography, because much of the material traded on that interstate market is homemade.
Id. Accordingly, the Fourth Circuit found that "the de minimis character of individual instances arising under the statute[s] is of no consequence, " and the statutes were constitutional as applied to Forrest's conduct. Id. at 79.
The allegations against Blank are indistinguishable from the facts in Forrest. Thus, Blank's motion to dismiss the indictment because §§ 2251(a) and 2252A(a)(5)(B) are unconstitutional as applied to his conduct were denied.
2. Motion to Dismiss Based on Lost or Destroyed Evidence
Blank also argues that the indictment should be dismissed because the Government lost or destroyed "exculpatory evidence that was essential to [Blank's] defense." ECF No. 86.
"Pursuant to the discovery agreement, [Blank] demanded that the [G]overnment produce the 3-page written statement" that Jane Doe wrote on May 7, 2014. Id. at 3. The Government was unable to located the document because it was "probably purged [from the Department of Social Services file] pursuant to regulation within 120 days following the finding that the original complaint was unsubstantiated." Id. "When the Government was informed that this had happened, [it] pursued all options to obtain the information." ECF No. 90 at 3. The Government provided the Defendant with "the personal notes  by a child protective services investigator" which "provide a very detailed account regarding the initial report and Jane Doe's recanting." Id. Further, Blank has access to the report by Detective Dixon, which also details Jane Doe's statement.
The Government has a duty to preserve evidence "that might be expected to play a significant role in the suspect's defense" under the Due Process Clause of the Fourteenth Amendment. See California v. Trowbetta, 467 U.S. 479, 485 (1984). Such evidence must (1) "possess an exculpatory value that was apparent [to the government] before the evidence was destroyed, " and (2) "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489. "The mere possibility that lost or destroyed evidence could have exculpated a defendant is not sufficient to satisfy Trombetta's requirement that the exculpatory value be * apparent' to the [Government] before destruction." United States v. Matthews, 373 Fed.App'x 386, 390 (4th Cir. 2010).
Although the Court accepts the Government's explanation that Jane Doe's statement was not destroyed in bad faith, but rather as a routine purge of DSS systems, the Government should have been aware of the exculpatory nature of the statement prior to its destruction. The DSS system destroys files within 120 days following the finding that the original complaint was unsubstantiated; however, in this case, a new file was opened within 30 days, and charges were filed against Blank within 60 days. Although, the Government argues that "the written statement would not contradict any of the underlying facts of this case, " the fact that the Government's central witness had changed her story in the past goes directly to her credibility.
Blank has established the first prong of the Trombetta test, but he has failed to satisfy the second prong. The defense has "obtain[ed] comparable evidence by other reasonably available means." Trombetta, 467 U.S. at 489. Blank has access to multiple summaries of Jane Doe's statement. The Government has never denied that Jane Doe made the statement or its contents. Moreover, it is unlikely that the statement as a whole could have been entered into evidence as it contained information that the Court has ruled inadmissible.
Blank's only argument about the necessity of Jane Doe's statement that cannot be fulfilled by the summaries is that it serves as "a prior inconsistent statement that [c]ould impeach Doe's trial testimony." ECF No. 86 at 5. However, Jane Doe has not testified at this time, and it is not apparent that she will deny the statement and need be impeached. In such an event, the defense can raise the issue then, and another solution can be fashioned; for example, the parties may stipulate to the existence of the prior statement and its contents in so far as the contents are necessary to the impeachment.
Because Blank has obtained "comparable evidence by other reasonably available means, " his Due Process rights were not violated by the destruction of Jane Doe's three-page statement. Accordingly, the Court denied the motion to dismiss the indictment.
B. Blank's Motions to Exclude the Cell Phone Evidence
Blank moved to exclude his cell phone, the photographs taken from his cell phone, and all evidence derived from his phone on multiple grounds, including that its seizure violated state and federal laws and the photos cannot be authenticated. ECF Nos. 34, 60.
1. Fourth Amendment
The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, " U.S. Const, amend IV, a right necessary to the functioning of a free and open society, see Florida v. Riley, 488 U.S. 445, 457 (1989) (Brennan, J. dissenting). Thus, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few . . . exceptions." Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). Blank argues that his cell phone was illegally seized because the C3I officers searched Blank's car without a warrant. ECF No. 34 at 3. The Government argues that the cell phone was properly seized as part of a search incident to arrest. ECF No. 41 at 6.
In Chimel v. California, 395 U.S. 752, 757-58 (1969), the Supreme Court recognized an exception to the warrant requirement for searches of an arrestee's person and immediate wingspan. Such searches assure the dual purposes of officer safety and the need to preserve evidence. Id. at 781. The Court expanded the search incident to arrest paradigm to automobiles in New York v. Belton, 453 U.S. 454, 460 (1981). The Court reasoned that any item or container within the passenger compartment of the vehicle was within the arrestee's immediate control and therefore subject to Chimel. Id.
In Arizona v. Gant, 556 U.S. 332 (2009), the Court limited its Belton decision. Gant was handcuffed and locked in the back of a patrol car when the police searched his vehicle. 556 U.S. at 335. Because "[t]he safety and evidentiary justifications underlying Chimel's reaching-distance rule determine Bel ton's scope, " the Court held "that Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle." Id. However, the Court also recognized "that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." Id. Thus, there is a two prong analysis to determine if a search incident to arrest in an ...