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United States v. Peterson

United States District Court, W.D. Missouri, Southwestern Division

August 8, 2017

UNITED STATES, Plaintiff,
v.
MICHAEL DOUGLAS PETERSON, Defendant.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          DAVID P. RUSH UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(b), and Rule 72.1 of the Local Rules for the United States District Court for the Western District of Missouri, the above-styled criminal action was referred to the undersigned for preliminary review. (Doc. 5). The Grand Jury returned indictments of: (1) attempting to employ, use, persuade, induce, entice, and coerce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, in violation of 18 U.S.C. § 2251(a) and (e); and (2) using the internet and cellular telephone network to knowingly persuade, induce, and entice an individual whom he believed to be less than eighteen years of age, to engage in sexual activity, in violation of 18 U.S.C. § 2422(b). (Doc. 4). Defendant Michael Douglas Peterson (“Peterson”) then filed two motions. (Docs. 48 and 49). In his Motion for Disclosure of Grand Jury Transcripts, Peterson requested disclosure of the grand jury transcripts pursuant to Fed. R. Crim. P. 6 and 16. (Doc. 49). Peterson also filed a Motion to Dismiss the Indictment due to the spoliation of evidence by the Government. (Doc. 48). On May 25, 2017, this Court held a hearing on these matters. (Doc. 68). Defendant was present at the hearing with his attorney, David Mercer. (Id.) Ami Miller, Assistant United States Attorney, represented the United States. (Id.) During the hearing, the Court received evidence and heard testimony from: James Smith, an officer with the Cassville, Missouri, Police Department assigned full time to the Southwest Missouri Cyber Crimes Task Force; and Troy Schnack, the Computer System Administrator for the Federal Public Defender's Office. For the reasons set forth below, it is hereby RECOMMENDED that Defendant's Motions, (Docs. 48 and 49), be DENIED.

         Background

         On March 20, 2014, officers of the Cassville, Missouri, Police Department received a report regarding Autumn Hawkins (“Hawkins”), then 15 years old, having sexual contact with Defendant Peterson, then 31 years old.[1] (Doc. 68). As part of an investigation of Peterson, Cassville officers seized Hawkins's cell phone that same day. (Id.) Officer James Smith of the Cassville Police Department then took the phone to the Joplin, Missouri, Police Department Cyber Crimes Lab, where he examined it using Cellebrite.[2] (Id.)

         Officer Smith found 26 images of Peterson contained on Hawkins's cell phone. (Id.) These images include headshots of Peterson, as well as close-ups of a nude penis, presumably that of Peterson. (Exs. 1-26).[3] Many of these images feature sexual text banners overlaying Peterson's face or penis. (Id.) Officer Smith also found a text-message correspondence between Hawkins (or at least a user of Hawkins's cell phone) and a contact labelled “Dylannnnn♥♥.” (Doc. 68; Ex. 27). This correspondence included approximately ten text messages in which the sender, from Hawkins's phone, mentioned Peterson by name. (Doc. 68; Ex. 27). Messages such as “Michael Douglas, please answer, ” suggested to law enforcement that the contact “Dylannnnn♥♥” was actually Defendant Peterson. (Ex. 27). The correspondence also included sexually explicit messages, e.g., “I want you back inside me back on top of me, me back on top of u [sic].” (Id.) Although Officer Smith limited his search to Peterson connections, he stated that he did not find anything on the phone that he believed to be exculpatory in nature. (Doc. 68).

         Officer Smith and other investigating officers then created a physical image of the phone, which they stored on a network storage device located in the Joplin Police Department Cyber Crimes Lab.[4] (Id.) When Hawkins's father asked to get the phone back, Lt. Boyd of the Cassville Police Department wiped the phone's contents and returned the device to him. (Id.) According to Officer Smith, Lt. Boyd wiped the phone in accordance with the Southwest Missouri Cyber Crimes Task Force's standard procedure. (Id.)

         In July 2014, Officer Smith received notice that the network storage device had crashed. (Id.) As a result of the crash, police lost the image of Hawkins's cell phone, along with mirror images of other phones. (Id.) Officer Smith testified that no one in law enforcement purposefully destroyed or crashed the network storage device. (Id.) Moreover, per standard protocol of the Joplin Police Department at the time, law enforcement had no back up of the hard drive when it crashed. (Id.) Resultantly, all that remains from Hawkins's cell phone is data that the investigating officers hand-picked, which includes thumbnails of certain images and copies of the text conversation between Hawkins's phone and the contact “Dylannnnn♥♥.” (Id.) Troy Schnack, Defendant's witness at the hearing, testified that without the phone, he could not say exactly what, if anything, on the device might be exculpatory. (Id.)

         After the network storage device crash, officers located Peterson residing in Tennessee with the victim and her mother. (Id.) On August 15, 2014, Hawkins admitted to sending the text messages to the contact “Dylannnnn♥♥, ” but denied any sexual contact with Peterson. (Id.) The police then found and arrested Peterson in January 2015. (Id.) In a post-Miranda statement, Peterson admitted to having had sexual contact with Hawkins while in Tennessee. (Id.) Peterson further stated that he had communicated with Hawkins via a cell phone. (Id.)

         Unable to locate Peterson's cell phone, Officer Smith turned to Peterson's Snapchat account because he believed that the images of Peterson he had found on Hawkins's phone were screenshots from her Snapchat application.[5] (Id.) Officer Smith provided Snapchat with the phone number for the contact “Dylannnnn♥♥, ” as well as the email address that the sheriff's office had provided for Peterson. (Id.) Based on this information, Snapchat returned the username “Therooster1970.” (Id.) Snapchat's records indicated that “Therooster1970” had communicated with the user “Auttyboo1998”-a username similar to an email address Hawkins had used on her cell phone, Auttyboo98@gmail.com. (Id.)

         Discussion

         I. Defendant has failed to show a particularized need or a Sixth Amendment violation, so the Court should deny his Motion for Disclosure of Grand Jury Transcripts.

Motion for Disclosure of Grand Jury Transcripts

         A. Defendant has failed to allege a particularized need for the transcripts that outweighs the policy of secrecy in grand jury proceedings, so the Court should not compel release of grand jury materials.

         In his Motion for Disclosure of Grand Jury Transcripts, Defendant Peterson argues that he has a particularized need for the transcripts. (Docs. 49 & 61). Specifically, Defendant claims that because the server crashed prior to the grand jury proceedings, any law enforcement officers or cyber experts who testified before the grand jury would have based their testimony on hearsay summaries alone. (Doc. 49). Further, Defendant asserts that the unilateral discretion of the investigating officers limited these summaries, and that the summaries were based on incomplete and non-intact evidence. (Id.) Defendant also speculated as to whether the Government represented to the Grand Jury that it still had possession of the device or its contents, and whether the Government disclosed that officers had wiped the device and subsequently lost its contents. (Id.) Finally, Defendant argues that the Confrontation Clause of the Sixth Amendment of the United States Constitution requires disclosure of the grand jury transcripts. (Doc. 61). Here, Defendant asserts that he needs the transcripts to properly cross-examine the law enforcement officers involved in investigating Hawkins's cell phone. (Id.)

         The Government responds that Defendant has failed to show a particularized need for the grand jury transcripts because he “has made no showing of any misconduct by the Government in the presentation of evidence to the grand jury.” (Doc. 55). Accordingly, the Government contends that the ...


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