United States v. VanDyck

          ORDER

          Cindy K. Jorgenson United States District Judge

         Pending before the Court are the Motion for New Trial (Doc. 216) and the Motion for Discovery (Doc. 217) filed by Defendant Ryan Galal VanDyck (“VanDyck”). The government has filed responses (Docs. 221 and 222) and VanDyck has filed a reply (Doc. 228). VanDyck has requested an evidentiary hearing as to the Motion for New Trial.

         Fed.R.Crim.P. 33 allows the Court to order a new trial "if the interest of justice so requires." Although a court's power to grant a motion for a new trial is "much broader than its power to grant a motion for judgment of acquittal," it may not grant the motion unless it finds that "despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict" such that "a serious miscarriage of justice may have occurred." United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (citation omitted); United States v. Alston, 974 F.2d 1206, 1211-12 (9th Cir. 1992). However, the "burden of justifying a new trial rests with the defendant." United States v. Saya, 101 F.Supp.2d 1304, 1307 (D.Hawai'i 1999) (citing United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986)). “[T]he government bears the burden of proving beyond a reasonable doubt that an error was harmless.” United States v. Benamor, 925 F.3d 1159, 1166 (9th Cir. 2019) (citation omitted).

         The applicable rule also states:

(b) Time to File.

(1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

(2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

Fed.R.Crim.P. 33. The Ninth Circuit has stated:

To prevail on a Rule 33 motion for a new trial based on newly discovered evidence, a defendant must satisfy a five-part test: “(1) the evidence must be newly discovered; (2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant's part; (3) the evidence must be material to the issues at trial; (4) the evidence must be neither cumulative nor merely impeaching; and (5) the evidence must indicate that a new trial would probably result in acquittal.”

United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (citing United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991); see also United States v. Brugnara, 856 F.3d 1198, 1206 (9th Cir. 2017).

         In this case, VanDyck presents information that the detective who obtained the search warrant may have had reason to know of information which contradicted statements included in the affidavit in support of the application for the search warrant. Specifically, Detective Daniel Barry averred in the September 2014 search warrant affidavit that child pornography collectors typically retain the child pornography, prefer not to be without their child pornography for any prolonged period of time, and may store digital media in online locations. However, FBI special agent Eric Campbell testified in an unrelated matter in October 2016 that he had seen a recent change in how child pornography defendants maintain their collections. VanDyck summarizes:

Agent Campbell explained that “typically older individuals who live by themselves . . . maintain those very large collections over years and years.” [United States v. Rusnak, No. 4:15-CR-00894-JCZ (D. Ariz.), CR 130 (RT 10/27/16) at 48]. But in recent years, agents had seen “a lot more” of what he termed “download and deleters.” Id. According to Agent Campbell, “[e]specially as Internet speeds get faster, as our defendants or the subjects of our investigations get younger and more familiar with technology, they are less likely to hold on to large collections.” Id. He said “younger people using these more high-speed technologies, they don't do that. They delete their stuff. They clean up after themselves, and they know they can go back and get it again.” Id. Agent Campbell also said that law enforcement “can't recover things that have been cleaned up, typically.” Id. at 47.

         Motion for New Trial (Doc. 216, p. 7). VanDyck argues that, if Detective Barry knew, or should have known, of the recent trend in 2014, there would not have been a substantial basis to believe that the image would still be present at the VanDyck residence at the time of the search warrant application and the warrant would probably not have been issued. In support of his argument, VanDyck also points out that Agent Campbell worked with Detective Barry on this case and Detective Barry has received extensive training in this area.^[1] VanDyck argues neither the state judge nor this Court would probably have issued the warrants in this case if this information had been presented. Further, VanDyck argues that, if this Court had known of this information at the time of the suppression hearing, it probably would have granted the motion to suppress for lack of probable cause to support the search warrant.

         The government argues, however, the information is not newly discovered evidence. The government points out that Agent Campbell did not testify that younger child pornography consumers using the internet did not maintain collections of child pornography, nor did he participate in obtaining a search warrant in this case. Agent Campbell's testimony was approximately two years after the warrant was obtained in this case and Detective Barry even testified in this case that the internet is always changing. The government asserts, “the affidavit was based on the information [that] was known to Detective Barry on ...