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United States v. Eller

United States District Court, D. Arizona

December 19, 2019

United States of America, Plaintiff,
v.
Franklin Paul Eller, Jr., Defendant.

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE

         Defendant 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.

         I. Background.

         This 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).

         On September 17, 2014, money transfer service Xoom.com filed a report regarding Yahoo! account “hannahsweetycole@yahoo.com.” Doc. 117 at 4. Yahoo! filed a report in October 2014, and reported that “hannahsweetycole@yahoo.com” - 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.

         Based 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.

         A 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.

         Before 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.

         Agents conducted a second interview and polygraph examination of Defendant on March 2, 2015.[1] 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.

         Defendant 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.

         II. Multiplicitous Counts (Doc. 116).

         Defendant 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.

         The 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.

         The 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.

         III. Administrative Subpoenas (Doc. 118).

         Defendant 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.”).

         Prior 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.

         IV. Motion in Limine (Doc. 134).

         Defendant 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.[2] 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.

         Here is an example of a chat printout from the charge in Count 1:

Eller: Is [there] another relative who would join if I can send ...

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