United States District Court, D. Arizona
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 ...