United States District Court, D. Nevada
RICHARD F. BOULWARE, II., UNITED STATES DISTRICT COURT JUDGE.
the Court is the government's Motion for Reconsideration
[Dkt. 88, 94] of this Court's order regarding exclusion
of evidence. Before the Court, additionally, is
Defendant's Motion in Limine to Exclude Exhibits [Dkt.
90]. The Court had previously orally ruled on these motions
and indicated that a further written ruling would follow. For
the reasons stated below, the Motion in Limine [Dkt. 90] is
GRANTED and the Motion for Reconsideration [Dkt. 88, 94] is
Court makes the following findings of fact and holdings.
February 25, 2015, Mr. Inclan was charged in an indictment
with Receipt of Child Pornography under 18 U.S.C.
2252A(a)(2), Possession of Child Pornography under 18 U.S.C.
2252A(a)(5)(B), and Advertising Child Pornography under 18
indictment does not list the number of images of child
pornography the government intends to use to prove its case,
nor does it provide a description of the images related to
any of the counts. After executing a search warrant at Mr.
Inclan's residence on April 12, 2012, the Las Vegas
Metropolitan Police Department (“LVMPD”) seized
eleven computers and 27 hard drives. The LVMPD also seized
184 CDs and DVDs. The LVMPD completed a forensic review of
some of the seized devices, and reported that it had found
child pornography on three computers, three hard drives, and
thirteen discs. The government alleges these devices contain
thousands of images and videos of child pornography.
Pretrial Exhibit Disclosure Order
light of the number of images and videos located on numerous
devices, Mr. Inclan filed a Motion for Bill of Particulars,
arguing he could not adequately prepare a trial defense
without knowing which images and videos from which devices
the government intended to introduce. [Dkt. 26].
February 23, 2017, the Court held a hearing regarding
pre-trial case management, and addressed the Motion for Bill
of Particulars. [Dkt 66, Transcript of Hearing]. At this
hearing, the Court discussed with the government the nature
of the case and the images involved. The Court found based
upon the record that the Defendant would need to know which
digital files the government intended to use at trial to be
able to adequately prepare possible defenses. The government
indicated that it did not intend to use all of the thousands
of images but instead would only be using a select number of
digital files. The Court denied the Motion for Bill of
Particulars, because it was requested outside of the time
limits prescribed by Fed. R. Crim. P. 7(f), but the Court
nevertheless entered a Pretrial Case Management Order
(“February 23 Order”), requiring disclosure of
the exhibits the government intended to introduce at trial.
[Dkt 66, p 5].
evident from the record, the Court entered its February 23
Order pursuant to its authority under Fed. R. Cr. P. 2 and
16, and its more general inherent authority to manage its
docket. See U.S. v. W.R. Grace, 526 F.3d 499, 509
(9th Cir. 2008) (explaining that a Court may require a
finalized list of witnesses and trial exhibits in advance of
trial pursuant to its authority under Fed. R. Cr. P. 2 and
16, and its managerial authority). The Court issued the Order
in the interest of effective case management. The Court found
that it would have been highly inefficient and unfair to
require Inclan to have to prepare for the possibility of
defending against the unique forensic characteristics of each
of the thousands of images or files. Relatedly, the Court
also issued the Order based upon its finding that there are
thousands of digital images and that the Defendant would need
to know which digital files the government might offer into
evidence as the defenses could vary based upon each
individual digital file. Given the Court's findings, the
government's identification of the range of potential
digital files to be used was necessary “to inform the
defendant of the nature of the charges against him with
sufficient precision to enable him to prepare for trial, to
avoid or minimize the danger of surprise at the time of
trial, and to enable him to plead his acquittal or conviction
in bar of another prosecution for the same offense when the
indictment is too vague and indefinite for such
purposes.” United States v. Ayers, 924 F.2d
1468, 1438 (9th Cir. 1991) (internal quotations omitted).
Court ordered the government to identify a set of 50 digital
images from which it would offer evidence at trial. The Court
accommodated the schedule of counsel for the government, and
set a deadline for April 7, 2017 for the required disclosure
to Inclan. [Dkt 66, pp 6-7]. The Court also informed the
government that it was permitted to provide up to 50 images
or files on the exhibit list, and would subsequently be
permitted to seek leave of Court to substitute any of the
images or files on that list with forensically
similar images before the commencement of trial. [Dkt
66, pp 9, 11]. The government did not file any objections to
the Court's authority to issue the February 23
April 6, 2017, the government produced to the defense an
April 3, 2017 Examiner Report, authored by Detective Ramirez,
a government witness. The government represented to the
defense that the list contained within the Examiner Report
was the list of ...