United States District Court, D. Nevada
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Defendant's Motion for Discovery (#19), filed on February 11, 2014. The Government filed its Opposition to Defendant's Motion for Discovery (#21) on February 25, 2014. Defendant filed his Reply to the Government's Response (#22) on March 3, 2014. The Court conducted a hearing in this matter on March 19, 2014.
The indictment in this case charges Defendant Enrique Rocha with using a facility of interstate commerce to knowingly persuade, induce, and entice, and to attempt to knowingly persuade, induce and entice an individual who has not attained the age of 18 years to engage in any sexual activity for which any person can be charged with a criminal offense under federal, state or local law, in violation of 18 U.S.C. § 2422(b). The indictment is based on the allegations set forth in the Application and Affidavit for Search Warrant prepared by Detective Wayne Nichols of the Henderson, Nevada Police Department on June 4, 2013. Defendant's Motion (#19), Exhibit A.
As part of his duties, Detective Nichols is assigned to investigate computer crimes, including crimes involving child sexual abuse, child pornography, and internet crimes against children. On May 22, 2013, Detective Nichols, posing as a fourteen year-old female, initiated email contact with Defendant Rocha who had allegedly posted a "casual encounter" advertisement on Craigslist.com stating that he was looking to meet a female for sexual contact. The advertisement was titled "Looking for any type girl ASAP." The advertisement included the Defendant's telephone number and stated "that he was open to anyone." Exhibit A, pg. 00122. Detective Nichols responded to the Craigslist advertisement from an email account that was created specifically for undercover operations. In the first email he sent to Defendant, Detective Nichols asked Defendant if he was interested in someone a lot younger. Defendant responded by asking how much younger and if the person had a picture. Detective Nichols stated that he was a 14 year old female. The Defendant responded to this information with "his concern of me being illegal' and his concern of being involved with a law enforcement operation." Id.
Defendant requested the female's phone number, and he and Detective Nichols thereafter exchanged text messages by phone. Defendant also asked to speak with the female on the phone so that he could hear her voice. After additional text messages, Detective Nichols arranged to speak with the Defendant by telephone on May 22, 2013 using a voice modification device to make his voice sound like a juvenile female. Detective Nichols was unable to activate his external recording device, so there is no recording of the telephone conversation. Id., pg. 00123. Detective Nichols described this telephone conversation in his affidavit as follows:
The male subject answered and we communicated for approximately 7 minutes. During the phone call, the subject asked numerous times if I was really 14, to which I stated yes. He also stated his concern that he could be involved in a law enforcement operation. When asked of my name, I advised him my name was Samantha. He claimed his name was "Vans". The subject also asked if I would be able to text him, to which I expressed that was my preferred method of communication, citing my aunt and my fear that she would hear me communicating on the phone. Before hanging up, the subject made clear that he was interested and was going to text me.
Exhibit A, pg. 00123.
All subsequent communications between Detective Nichols and Defendant occurred by text message. Defendant requested a photograph of the female and Detective Nichols, in return, requested a photograph of the Defendant. Defendant sent photographs of himself to Detective Nichols by text message. Detective Nichols sent Defendant forensically regressed images of a female police officer to make her appear to be a fourteen year old female. Id.
Detective Nichols subsequently agreed to meet Defendant in the parking lot of a Subway Sandwich shop which "she" stated was near "her" residence. After Defendant did not appear at the initial rendevous on May 24, 2013, the two agreed to meet on the evening of May 25, 2013. Defendant sent a text message to Detective Nichols at 9:52 p.m. stating that he had arrived at the meeting location. Detective Nichols asked Defendant to send him a photograph to prove he was at the location. The Defendant did so. Through examination of the photograph and the digital data associated with the photograph, the police were able to determine that Defendant was at the intended meeting location. The Defendant also called Detective Nichols's undercover phone number several times during the time he stated he was at the meeting location. Detective Nichols responded to Defendant's text message by advising that he was unable to sneak out of his house. Id., pg. 00126. The police subsequently obtained a search warrant for Defendant's residence. Defendant arrived home during the execution of the warrant. He was read his Miranda rights and agreed to speak to the police. Defendant allegedly admitted his participation in the foregoing conduct. Id.
Defendant has raised entrapment as a defense. Defendant argues that the initial Craigslist advertisement stated only that he was "[l]ooking for any type girl" and that it was Detective Nichols who implanted the idea of Defendant seeking sexual relations with a fourteen year-old female by posing as such in his undercover response to the advertisement. Defendant argues that Detective Nichols made statements and engaged in techniques that sought to overcome Defendant's concerns about engaging in the proposed contact. The Government argues, however, that Defendant was made aware at the outset that the female he believed he was communicating with was fourteen years old, and that Defendant made clear during the text message exchanges that he desired to engage in sexual activity with the female, and pursued that activity by going to the proposed meeting location.
Defendant moves the Court pursuant to Rule 16(a)(1)(E)(i) of the Federal Rules of Criminal Procedure for an order requiring the Government to produce copies of recorded communications and messages (i.e., emails, text messages, sms messages, etc.) between Defendant Wayne Nichols and other subjects in his undercover operations regarding coercion and enticement of minors for sexual activity, and other similar state, local and/or federal crimes, that have occurred in the last three years. Alternatively, if the Government contends that the requested records are not in its possession, custody or control, Defendant requests leave to serve a subpoena duces tecum on the Custodian of Records of the Henderson Police Department to obtain the records.
Rule 16(a)(1)(E)(i) of the Federal Rules of Criminal Procedure states that upon request by a defendant, the government must permit the defendant to inspect and to copy documents or other items, if the item is within the government's possession, custody or control, and the item is material to preparing the defense. To obtain discovery under Rule 16, the Defendant must make a prima facie showing of materiality. United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990), citing United States v. Little, 753 F.2d 1420, 1445 (9th Cir. 1984) and United States v. Cadet, 727 F.2d 1453, 1468 (9th Cir. 1984). "Neither a general description of the information sought nor conclusory allegations of materiality suffice; a defendant must present facts which would tend to show that the Government is ...