United States District Court, D. Nevada
C. JONES United States District Judge.
jury has indicted Defendant James Scott Alva
("Defendant") on four criminal counts, for the
possession, receipt, transportation, and advertisement of
child pornography. (Indictment, ECF No. 1.) A jury trial is
presently set for January 16, 2018.
November 28, 2017, Defendant filed a motion seeking to compel
the Government to produce a copy of the source code behind
certain law-enforcement-modified software known as
"Ares-Frostwire RoundUp, " which Detective Lora
Cody used to download images of child pornography from an IP
address associated with Defendant's home address. (Mot.
Compel, ECF No. 268.) The motion appears to have been based
on speculation that RoundUp might be susceptible to
"manipulation" by a user, allowing the user to
access not only folders that were designated as shared, but
to "reach beyond" those shared folders and search
through private files stored on an individual's personal
computer. (Id. at 4.) On December 15, 2017,
Magistrate Judge Nancy J. Koppe denied Defendant's
motion, finding that Defendant had failed to make a threshold
of showing of materiality as required by Fed. R. Crim. P.
16(a)(1)(E)(i). (Order 5-7, ECF No.277.)
now objects to Judge Koppe's findings under 28 U.S.C.
§ 636(b)(1)(A) and District of Nevada Local Rule
("LR") IB 3-1, and asks this Court to reconsider
and reverse her order. (Mot. Recon., ECF No. 281.) For the
reasons given herein, the Court overrules Defendant's
objection and affirms the order of the magistrate judge.
judges are authorized to resolve most pretrial matters,
including motions to compel discovery, subject to district
court review under a "clearly erroneous or contrary to
law" standard. See 28 U.S.C. §
636(b)(1)(A); LR IB 3-1. "A finding is 'clearly
erroneous' when although there is evidence to support it,
the reviewing body on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed." Concrete Pipe & Prod. of Cal, Inc.
v. Constr. Laborers Pension Tr. For S. Cat., 508 U.S.
602, 622 (1993). "A decision is 'contrary to
law' if it applies an incorrect legal standard or fails
to consider an element of the applicable standard."
Conant v. McCoffey, No. C 97-0139 FMS, 1998 WL
164946, at *2 (N.D. Cal. Mar. 16, 1998) (citing Hunt v.
National Broadcasting Co., 872 F.2d 289, 292 (9th Cir.
1989)). A magistrate's pretrial order issued under 28
U.S.C. § 636(b)(1)(A) is not subject to de novo
review, and the reviewing court "may not simply
substitute its judgment for that of the deciding court."
Grimes v. City & County of San Francisco, 951
F.2d 236, 241 (9th Cir. 1991).
magistrate judge's order is not clearly erroneous or
contrary to law. In the order, Judge Koppe correctly
determined that Defendant bears the burden of making a
"threshold showing of materiality" before becoming
entitled to the requested discovery, which requires Defendant
to "present facts tending to show that the government is
in possession of information helpful to the defense."
(Order 5, ECF No. 277 (citing Fed. R. Crim. P. 16 and
multiple Ninth Circuit cases).) This Court agrees that
Defendant did not make the requisite showing. By way of facts
to establish materiality, Defendant presented only the expert
declaration of Larry Smith. The declaration reveals, however,
that Mr. Smith has no facts to suggest that the RoundUp
software allows law enforcement to search private
directories, and has no particular reason to believe that
such is the case. Rather, Mr. Smith states only that if
RoundUp provides access to private directories, it would be
helpful to the defense. However, the materiality showing
requires something more than a shot in the dark.
relies on United States v. Budziak, 697 F.3d 1105
(9th Cir. 2012), to support his request for the RoundUp
source code. But Budziak is not difficult to
distinguish from this case. Crucially, the Ninth Circuit
concluded that Mr. Budziak had made an adequate showing of
materiality, and on that basis held the district court abused
its discretion in denying discovery of the FBI's
"EP2P" software. Id. at 1112-13. In so
holding, the Court of Appeals stated: "/«
cases where the defendant has demonstrated
materiality, the district court should not merely defer
to government assertions that discovery would be
fruitless." Id. (emphasis added). To
demonstrate materiality, Budziak had submitted actual
evidence in support of three separate motions to compel. For
example, Budziak submitted a declaration, stating that he was
familiar with the Lime Wire file-sharing software at issue in
his case, and that he had disabled the software's default
sharing function at all times while using it. United
States v. Budziak, No. CR-08-00284 RMW (N.D. Cal. Dec.
13, 2010) (ECF No. 115-1). Budziak also submitted an expert
declaration providing details about a preexisting
"backdoor" in some versions of the LimeWire
software which permitted the remote manipulation of user
settings. United States v. Budziak, No. CR-08- 00284
RMW (N.D. Cal. Dec. 13, 2010) (ECF No. 117). In addition,
Budziak "presented evidence suggesting that the FBI may
have only downloaded fragments of child pornography files
from his 'incomplete' folder, making it 'more
likely' that he did not knowingly distribute any complete
child pornography files to Agents Lane or Whisman."
Budziak, 697 F.3d at 1112.
short, the evidence submitted by Budziak tended to suggest
that if the FBI obtained complete child pornography images
from Budziak's computer, it did so by accessing unshared,
private directories through the remote manipulation of
Budziak's LimeWire sharing settings. Here, no comparable
showing has been made. Neither Defendant nor his expert have
asserted that Defendant did not store child pornography in
shared directories, nor have they given any indication that
the theory behind requesting the RoundUp source code amounts
to anything more than an abstract possibility.
Defendant has not provided a reason for disturbing the
magistrate's order denying the motion to compel.
HEREBY ORDERED that Defendant's objection (ECF No. 281)
is OVERRULED, and the magistrate ...