United States v. Cox

UNITED STATES OF AMERICA v. BRADLEY M. COX

Cause No. 1:18-CR-83-HAB

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION

October 30, 2020

OPINION AND ORDER

This matter comes before the Court on the Government's Second Motion to Continue Trial. (ECF No. 173) (the "Motion"). In the Motion, the Government asks the Court to continue the trial in this matter, currently set to begin on November 9, 2020, for ninety days. The Government cites the unavailability of an essential witness and the complexity of the case as grounds for the continuance. Defendant objects. Having reviewed the Motion, the Court finds that it states no basis for an excludable continuance under the Speedy Trial Act.

A. Factual and Procedural Background

Defendant was charged by way of a Criminal Complaint (ECF No. 1) on September 7, 2018, with using a computer to "employ, use, persuade, induce, entice, or coerce a minor . . . to engage in sexually explicit conduct for the purposes of producing a visual depiction of such conduct," a violation of 18 U.S.C. § 2251(a). (ECF No. 1 at 1). Attached to the Criminal Complaint was an affidavit executed by FBI Special Agent Jason Stewart.

In the affidavit, Stewart detailed how Defendant had allegedly extorted several individuals via Facebook, including minors, into sending him sexually explicit photos and videos. It appears that the first thing investigators did, after speaking with at least one alleged victim, was to send a search warrant to Facebook for the "Facebook messages and IP address logs from approximately December 1, 2017, to April 12, 2018," of the account Defendant allegedly used to carry out the "sextortion" scheme. In response, investigators received "hundreds of Facebook messages sent and received from" Defendant under Defendant's Facebook pseudonym. Investigators sent subsequent subpoenas to an internet service provider and a text messaging app. From the information collected through the subpoenas, investigators were able to trace the illegal activity to Defendant's employer.

The subsequent events have been cataloged in several orders in this case. Investigators interviewed Defendant, who admitted to using a Facebook account to extort sexual images from his victims, some of whom were minors. Defendant explained to the investigators how he took control of dormant Facebook accounts for use in his scheme. He also showed the investigators a cloud storage account where he maintained the photos and videos he received. Investigators were further able to determine that Defendant kept a file on his work computer containing a list of usernames and passwords, two of which were for the Facebook account he used in the scheme and the account of one of his victims.

Defendant was subsequently charged via indictment (ECF No. 17) and superseding indictment (ECF No. 34). Defendant now faces six counts; all are related to his use of a Facebook account to solicit and extort sexual images from his victims.

B. Legal Analysis

The Speedy Trial Act requires that, "[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1).

If a trial does not commence by the date required by the Speedy Trial Act, the Act demands that "the information or indictment . . . be dismissed on motion of the defendant." Id. § 3162(a)(2); see also Bloate v. United States, 559 U.S. 196, 199 (2010) (stating that the Act "entitles [the defendant] to dismissal of the charges if [its] deadline is not met, § 3162(a)(2)"); Zedner v. United States, 547 U.S. 489, 507-08 (2006) ("The relevant provisions of the Act are unequivocal. . . . When a trial is not commenced within the prescribed period of time, 'the information or indictment shall be dismissed on motion of the defendant.' § 3162(a)(2)."). "The Act, however, excludes from the 70-day period delays due to certain enumerated events. § 3161(h)." Bloate, 559 U.S. at 199.

Here, the Government cites two provisions in support of its request for an excludable continuance: the unavailability of an essential witness under 18 U.S.C. § 3161(h)(3)(A) and the complexity of the case under § 3161(h)(7)(B)(ii). The Court will address each in turn.

1. The Government Cannot Establish the Unavailability of an Essential Witness

From the earliest days of the investigation into Defendant's wrongdoing, it was clear that Facebook would play a central role in this case; it was, after all, the means by which Defendant was able to carry out the alleged scheme. The Motion takes this rather obvious notion and turns it into a basis for a continuance. What the Court sees, however, is a failure on the part of the Government to prepare its case for trial.

According to the Government, the evidence in this case consists of "hundreds of pages" of digital evidence and "several thousand pages" of Facebook account records. (ECF No. 173 at 2). The Government states that:

A review of the Facebook records in this case also makes clear the need for a witness or witnesses from Facebook with the appropriate knowledge, skill, and/or experience to testify regarding, among other things, the information that is or is not needed to create a Facebook account, the process of creating a Facebook account, how certain aspects of Facebook, such as Facebook Messenger, function, the location of Facebook servers, what other digital information, such as IP addresses,is captured by Facebook and when, why, and how that information is captured, how multiple Facebook accounts could be linked, why certain information may or may not be in the records of a particular Facebook account, and why information produced by Facebook is in the format it is.

(Id. at 2-3). The Government further asserts that a witness from Facebook is "necessary to establish that the proposed Facebook records as well as the Facebook returns from the orders issued under 18 U.S.C. § 2703(d) in this case are true and correct business records under F.R.E. 803(6)." (Id. at 2).

Assuming, for a moment, the accuracy of the Government's representations, the need for a Facebook witness should not have been a recent discovery. As reflected in Special Agent Stewart's affidavit, the Government has had "hundreds of Facebook messages" since September 2018. For at least 25 months, then, the Government has been keenly aware of the need to authenticate and explain the Facebook records at trial.

Despite more than two years of lead time, it appears that the Government did not even begin its search for a competent Facebook witness until October 16, 2020. It was then that a subpoena, presumably for trial testimony, was sent to Facebook. According to the Motion, the Government received an automated response from Facebook on October 21, 2020, acknowledging the subpoena and advising the Government to "respond to the message if live testimony was needed." Despite the ever-approaching trial date, the Government waited two days to respond, "with specific information about the necessity of live testimony and requested the name and contact information of the appropriate witness." (Id. at 3). Having received no response, the Government waited an additional five days before following up.

The Government finally received a response on October 28, 2020, via an email from Facebook to the FBI. The email indicated that Facebook had attempted to contact AUSAs Miller Lowery and Nokes but was unsuccessful in reaching either. It appears that the FBI responded,asking Facebook to contact either AUSA at the main number for the United States Attorney's Office. This email was the last communication between the Government and Facebook.

Against that factual background, the Government claims that "a witness or witnesses from Facebook are essential witnesses," and, presumably, are unavailable for trial. Subsection 3161(h)(3)(A) of Title 18 of the United States Code excludes "[a]ny period of delay resulting from the absence or unavailability of a defendant or an essential witness." The statute continues that "a defendant or an essential witness shall be considered absent when his whereabouts are unknown and, in addition, he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence" and "a defendant or an essential witness shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence or he resists appearing at or being returned for trial." 18 U.S.C. § 3161(h)(3)(B).

The statute provides no definition for determining who is an "essential witness." The legislative history on the Speedy Trial Act indicates that an "essential witness" is "a witness so essential to the proceeding that continuation without the witness would either be impossible or would likely result in a miscarriage of justice. For example, a chemist who has identified narcotics in the defendant's possession would be an 'essential witness.'" United States v. Marrero, 705 F.2d 652, 656 (2nd Cir. 1983); quoting S. Rep. No. 1021, 93d Cong., 2d Sess. 37 (1974). In the absence of a statutory definition, the D.C. Circuit has held that an "essential witness" is one "whose testimony would be extremely important to the proceeding, perhaps providing proof that was not otherwise attainable"—in other words, "a witness so essential to the proceeding that continuation without the witness would either be impossible or would likely result in a miscarriage of justice." United States v. McNeil, 911 F.2d 768, 773 (D.C. Cir. 1990) (per curiam) (internal quotation marks omitted); accord United States v. Ortiz, 687 F.3d 660, 663 (5th Cir. 2012); United States v.Hamilton, 46 F.3d 271, 277 (3d...