United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE
Franklin Eller is charged with sixteen counts relating to the
production and receipt of child pornography. Defendant has
filed seven pretrial motions to which the government has
responded. The Court has scheduled a hearing for December 20,
2019, but concludes that several of the motions can be
resolved without a hearing.
case arises from an investigation that started at FBI
Headquarters. Doc. 145 at 2. Federal law requires electronic
communication and remote computing service providers to
report potential violations of law regarding child
pornography. 18 U.S.C. § 2258A. If providers obtain
actual knowledge of any facts indicating violations, they
must file a report to the CyberTipline of the National Center
for Missing and Exploited Children (“NCMEC”).
Id. § 2258A(a).
September 17, 2014, money transfer service Xoom.com filed a
report regarding Yahoo! account
“email@example.com.” Doc. 117 at 4.
Yahoo! filed a report in October 2014, and reported that
“firstname.lastname@example.org” - an account located
in the Philippines - appeared to be a producer and vendor of
child pornography which recruited and worked with various
other Yahoo! account holders to do the same. Id. at
5. Yahoo! submitted an additional report to NCMEC indicating
that its staff had observed the negotiation and transfer of
suspect child pornography to various other Yahoo! accounts,
including “baronww1.” Id. This account
belongs to Defendant.
on this information, District of Columbia Magistrate Judge
Alan Kay issued a warrant on November 14, 2014 for the search
and seizure of Defendant's Yahoo! account. Id.
at 8. The search found a vast number of instant message
conversations between Defendant and other Yahoo! users.
Id. Among other things, these conversations
indicated that Defendant attempted to set up sexually
explicit shows involving minors in the Philippines, for which
he paid through Western Union money transfers. Doc. 149 at 2.
Using the information obtained from the Yahoo! search, an
affidavit in support of an application for a federal warrant
to search Defendant's residence was filed on February 18,
2015, in Flagstaff, Arizona. Doc. 119 at 2. Magistrate Judge
Mark Aspey issued the warrant the same day. Id.
little after 6:30 a.m. on February 27, 2015, a team of
seventeen federal and local law enforcement agents executed
the search warrant at Defendant's apartment in Flagstaff.
Doc. 124 at 2. Defendant was awakened and handcuffed until
the residence was cleared. Doc. 145 at 2. He was advised that
he was not under arrest, but was briefly detained while
agents secured his apartment. Id. Defendant
thereafter agreed to speak to Special Agents Kraus and Martin
in a law enforcement vehicle while other agents searched his
apartment. Id. Defendant was seated in the front
seat of the vehicle - which was unlocked - throughout the
85-minute interview. Id. at 12.
beginning the interview, Special Agent Martin advised
Defendant of his Miranda rights. Doc. 124 at 4.
Immediately after reciting the Miranda rights,
Special Agent Kraus said the following: “And so,
basically, what . . . this says is, obviously, if you need -
if you want or need a lawyer after we kind of talk,
it's totally up to you.” Doc. 124 at 4 (emphasis
added). Defendant responded that he just wanted “to
know what's going on” before the Special Agents
proceeded with the interview. Id. It is not clear
whether Defendant expressly waived his Miranda
rights before continuing to answer questions throughout
interview. Doc. 126-1 at 112. Defendant was not arrested that
day. Doc. 146 at 4.
conducted a second interview and polygraph examination of
Defendant on March 2, 2015. The polygraph examination was
conducted by Special Agent Fuller. Doc. 126 at 4. Special
Agent Martin joined Special Agent Fuller before and after the
polygraph examination for a pre-examination advice of rights
and a post-examination interview about the allegations.
Id. Defendant contends that his mental state was
highly unstable during the post-test interview, as he
repeatedly made “inappropriate or odd references”
and discussed his suicidal thoughts. Doc. 126 at 6. Defendant
was not arrested that day. Doc. 146 at 5.
now faces sixteen counts of coercion and enticement of a
child, and various other charges related to the production
and attempted production of child pornography. Doc. 44.
Multiplicitous Counts (Doc. 116).
argues that eight counts in the superseding indictment are
multiplicitous. He alleges that Counts 5-8 arise out of the
same facts as Counts 9-12, respectively, that Counts 5-8
charge violations of 18 U.S.C. § 2251(c)(1) while Counts
9-12 charge violations of 18 U.S.C. § 2251(a), and that
the elements of these statutory provisions are the same.
Defendant asks the Court to either dismiss the multiplicitous
counts or require the government to make an election. See
United States v. Aguilar, 756 F.2d 1418, 1423 (9th Cir.
1985) (“Election is explicitly approved as a remedy for
multiplicity.”). He asserts that proceeding to trial on
multiplicitous counts will prejudice him and waste time.
government agrees that the counts are multiplicitous:
“defense counsel is correct in her analysis of §
2251(a) and § 2251(c) that the counts are
multiplicitous.” Doc. 144 at 1. The government
nonetheless asks that all counts proceed to trial, asserting
that the Court can dismiss multiplicitous counts before
sentencing if Defendant is convicted on all of them. The
government contends that Defendants will not be prejudiced if
the jury is properly instructed, and that there will be no
waste of time because “[v]irtually identical evidence
will be introduced during the trial one time in support of
Counts 5-8 and Counts 9-12[.]” Doc. 144 at 5.
government generally has broad discretion to bring charges
against a defendant, including multiplicitous charges,
Ball v. United States, 470 U.S. 856, 860 n.8 (1985),
but the Court concludes that the trial in this case should
not include multiplicitous counts. Given the sensitive and
difficult nature of this child pornography case, the Court
concludes that trying overlapping counts could prejudice
Defendant, confuse the jury, and prolong the trial. The Court
will grant Defendant's motion and require the government
to elect which counts it will pursue at trial - Counts 5-8 or
9-12 - at the hearing on December 20, 2019.
Administrative Subpoenas (Doc. 118).
moves to suppress information obtained by an administrative
subpoena relating to subscriber information associated with
his internet protocol (“IP”) address. The first
three pages of Defendant's brief recite the holdings of
Carpenter v. United States, 138 S.Ct. 2206 (2018),
where the Supreme Court held that the government's
acquisition of cell-site location records “was a search
within the meaning of the Fourth Amendment.”
Id. at 2220. The Supreme Court declined to apply the
third-party doctrine, under which the Court had previously
held that individuals possess no reasonable expectation of
privacy in information voluntarily turned over to a third
party. Id. at 2216-17 (citing Smith v.
Maryland, 442 U.S. 735, 743-44 (1979)). While Defendant
is correct that the Court in Carpenter recognized an
evolved view of the reasonable expectation of privacy one has
in the digital age, he is incorrect that this privacy
interest applies to basic subscriber records and IP address
information. See Doc. 118 at 4 (“In Light of
Carpenter, The Fourth Amendment requires a warrant
supported by probable cause to obtain the subscriber
information associated with an IP address.”).
to Carpenter, numerous courts held that the
government could collect IP address and subscriber
information without a warrant. See United States v.
Forrester, 512 F.3d 500, 510 (9th Cir. 2008); United
States v. Ulbricht, 858 F.3d 71, 97 (2d Cir. 2017);
United States v. Caira, 833 F.3d 803, 806-08 (7th
Cir. 2016); United States v. Wheelock, 772 F.3d 825,
828-29 (8th Cir. 2014); United States v. Christie,
624 F.3d 558, 574 (3d Cir. 2010); United States v.
Bynum, 604 F.3d 161, 164 (4th Cir. 2010); United
States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008).
In Forrester, this Circuit expressly held that
individuals possess no reasonable expectation of privacy in -
and thus no warrant was required for - the IP addresses of
websites visited, the to/from addresses of e-mail messages,
and the total amount of data transmitted to or from an
account. 512 F.3d at 510. Recent cases have not interpreted
Carpenter to indicate otherwise. See United
States v. VanDyck, 776 Fed. App'x 495, 496 (9th Cir.
2019) (rejecting a Carpenter-based challenge to IP
addresses and noting that the court is “bound by our
decision in Forrester, as it is not clearly
irreconcilable with Carpenter”); United
States v. Contreras, 905 F.3d 853, 857 (5th Cir. 2018)
(same); United States v. McCutchin, No.
CR-17-01517-001-TUC-JAS (BPV), 2019 WL 1075544, at *2-3 (D.
Ariz. March 7, 2019) (same). Because Defendant has provided
no authority indicating that Forrester has been
overruled, the Court will deny the motion to suppress.
Motion in Limine (Doc. 134).
moves to exclude “out-of-court statements made by
declarants via Yahoo! Instant Messenger, for which the
government has not or cannot provide the proper evidentiary
foundation.” Doc. 134. This motion focuses on printouts
of Yahoo! Messenger chats that allegedly occurred between
Defendant and other individuals, and in which Defendant
allegedly attempted to arrange live video viewing of children
engaged in sexual activity, in exchange for a payment by
Defendant. Defendant objects that his right to confrontation
will be violated if the individuals from the other end of
these chats are not called to testify at trial, that
admission of the chats would violate the hearsay rule, and
that the chats are unfairly prejudicial and inadmissible
under Rule 403.
an example of a chat printout from the charge in Count 1:
Eller: Is [there] another relative who would
join if I can send ...