United States v. Dzionara-Norsen

UNITED STATES OF AMERICA, v. RICHARD DZIONARA-NORSEN, Defendant.

Case # 19-CR-6131-FPG

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

June 18, 2020

DECISION AND ORDER

INTRODUCTION

Defendant Richard Dzionara-Norsen moved to dismiss his indictment and to suppress tangible evidence and statements. ECF Nos. 47, 59, 66. Defendant also seeks in camera review of grand jury materials. ECF No. 59. On April 17, 2020, United States Magistrate Judge Marian W. Payson issued a Report and Recommendation ("R&R") recommending that the Court deny Defendant's motions. ECF No. 68. Currently before the Court are Defendant's objections to the R&R. ECF No. 69. For the following reasons, the Court ADOPTS Judge Payson's R&R in full. Defendant's motions are DENIED.

BACKGROUND

On August 8, 2019, the grand jury returned a three-count indictment charging Defendant with various offenses relating to receiving, possessing, and distributing child pornography. ECF No. 42. Judge Payson held an evidentiary hearing on Defendant's motions to suppress on December 18, 2019. ECF Nos. 56, 57. At the evidentiary hearing, Federal Bureau of Investigation Special Agents Barry Couch and James Markovich testified. ECF No. 57. Defendant did not call any witnesses at the evidentiary hearing. Id.

As part of an online child pornography investigation, an undercover FBI officer allegedly obtained a video depicting child pornography from someone using an IP address associated with Defendant. Id. at 5, 19. On June 13, 2018, Couch and his partner, Task Force Officer Carlton Turner, interviewed Defendant outside his apartment. Id. at 5-6. On that day, Couch and Turner approached Defendant's apartment wearing plain clothes and knocked on his door unannounced. Id. at 6, 11, 34. Defendant answered the door after Couch knocked twice, and Couch introduced himself and Turner. Id. at 6, 9-11, 35. Defendant exited his apartment to speak with them. Id. at 9-11. Couch recorded their conversation using a concealed digital recorder. Id. at 13. The interview lasted less than eighteen minutes. Id. at 12, Ex.¹ 3.

During the course of the interview, Couch showed Defendant a screenshot of a scene from the video allegedly depicting child pornography. Id. at 18. The screenshot allegedly featured a prepubescent girl in a lewd pose. Id. Defendant revealed that he had previously downloaded child pornography using his laptop. Id. at 46, Ex. 3. Couch asked Defendant if he still had his laptop and if he was willing to show them the laptop. Id. at 52-54, Ex. 3. Defendant agreed to show them the laptop and went back into his apartment to retrieve it. Id. at 20, Ex. 3. After Defendant retrieved the laptop, Couch told the Defendant that they intended to take it. Id. at 21-22, 53-54. After taking the laptop, Couch drafted a document stating that Defendant gave "the FBI consent to search [his] Dell laptop computer for evidence of any crime," read the form to Defendant, and had Defendant sign the form. Id. at 22-24, 45-46, Exs. 3, 5.

After Couch and Turner finished the interview they left, and Defendant stayed at his apartment. Id. at 24. Couch called Defendant twice after leaving his apartment: first, to ask Defendant to provide the password for his laptop, which he did; and second, to ask if Defendantwould be willing to sit for a polygraph examination. Id. at 24-26. Defendant agreed to participate in the polygraph examination at the FBI's office on the following day. Id.

The next morning, Couch met Defendant in the lobby of the FBI's office and introduced him to Markovich. Id. at 27-28. Markovich is trained as a polygraph examiner, and he conducted the polygraph examination in a nearby, windowless room connected to the lobby while Couch observed. Id. at 26-29, 31, 62-64. Markovich told the Defendant that he was not under arrest and that he was free to go at any time. Id. at 68-70. Markovich also read Defendant a Miranda warning from a form, which Defendant signed. Id. at 71-72. During the course of the polygraph, Defendant was not restrained in any way. Id. at 68-69. The examination lasted less than three hours. Id. at 70. The interview was conducted in a "cordial," "even keeled tone." Id. at 81. Defendant was not arrested and left on his own. Id. at 28, 69.

Defendant's computer was also searched for evidence of child pornography. Id. at 33. The Government never obtained a warrant for either the seizure or the search of the laptop. Id. at 55-56.

LEGAL STANDARD

A district court reviews those portions of an R&R to which a party has timely objected de novo. Fed. R. Crim. P. 59(b)(3). When a party does not object to a portion of an R&R, a party's objections are conclusory, general, or without legal support, or a party repeats arguments made to the magistrate judge without identifying a specific error in the judge's reasoning, a district court reviews those portions for clear error. See United States v. Preston, 635 F. Supp. 2d 267, 269 (W.D.N.Y. 2009); see also Fed. R. Crim. P. 59(b)(2); Loc. R. Crim. P. 59(c)(2) ("Written objections . . . shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall besupported by legal authority."); Alvarez Sosa v. Barr, 369 F. Supp. 3d 492, 497 (E.D.N.Y. 2019) ("[O]bjections that simply reiterate the original arguments, without identifying a specific error in the report and recommendation, e.g., why a specific finding or conclusion is faulty or the magistrate judge erred in rejecting a specific argument, are reviewed under the clear error standard."). After reviewing the R&R and the objections to it, a district court "may accept, reject, or modify," in whole or in part, the findings or recommendations made by the magistrate judge. Fed. R. Crim. P. 59(b)(3).

DISCUSSION

Defendant argues that Judge Payson erred in finding (1) that in camera review of the grand jury minutes was not warranted; (2) that the indictment should not be dismissed based on either insufficiency of evidence or selective prosecution; and (3) that suppression was not warranted. ECF No. 68 at 9-32; ECF No. 69. With respect to many of his arguments, Defendant has not specifically addressed flaws in Judge Payson's reasoning, but instead has reasserted the same arguments he initially made to Judge Payson or has asserted arguments without legal support. Under such circumstances, Defendant is entitled only to clear error review. Alvarez Sosa, 369 F. Supp. 3d at 497. Even assuming that Defendant were entitled to de novo review on all objections he raised to the R&R, the Court would still adopt Judge Payson's R&R.

I. Grand Jury Materials

Defendant argues that Judge Payson erred in failing to permit in camera review of the grand jury minutes in this matter. ECF No. 69 at 1-2. Defendant argues that this is a case in which "it is particularly important" (1) that the grand jurors were properly instructed and (2) that they actually viewed the video in question. Id.

Grand jury proceedings carry a "presumption of regularity." Hamling v. United States, 418 U.S. 87, 139 n.23 (1974) (internal quotation marks omitted). As such, "a review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct." United States v. Torres, 901 F.2d 205, 233 (2d Cir. 1990), overruled on other grounds as recognized by, United States v. Marcus, 628 F.3d 36, 41 (2d Cir. 2010). This standard is a demanding one, and the "strong presumption of regularity in grand jury proceedings . . . cannot be outweighed by conclusory or speculative allegations of misconduct." United States v. Morgan, 845 F. Supp. 934, 941 (D. Conn. 1994), aff'd, 51 F.3d 1105 (2d Cir. 1995). Even where a Defendant merely requests in camera review of grand jury minutes, courts still require particularized factual allegations of government misconduct. United States v. Smith, 105 F. Supp. 3d 255, 261 (W.D.N.Y. 2015) (collecting cases).

Defendant first argues that, because Couch was unable to testify as to the exact age of the individual depicted in the video in question, it is "possible" the person depicted is not a minor. ECF No. 69 at 1-2. In such a scenario, Defendant argues, it is particularly important that the grand jurors be instructed properly. Id. Beyond speculation, Defendant has provided no basis to question the grand jurors' instructions in this case. "Unspecified allegations of impropriety or mere speculation are not sufficient to satisfy [Defendant's] heavy burden." United States v. Ali, No. 12-CR-45, 2013 WL 707303, at *4 (W.D.N.Y. Feb. 26, 2013) (citing United States v. Calandra, 414 U.S. 338, 345 (1974)).

Defendant next claims that, because it is possible the individual depicted in the video is not a minor, the grand jurors needed to actually view the video. ECF No. 69 at 1-2. Defendant argues it would be improper for the grand jurors to rely on the testimony of Couch regarding his belief that the individual was a minor. Id. at 2. As a threshold matter, the Defendant has failed to produceany evidence of what actually transpired before the grand jury. Even if the Court were to assume that the grand jury did not view the video and that the video could have been viewed as exculpatory, however, Defendant has not established that the grand jury could not rely on the testimony of Couch instead of viewing the video directly.

In fact, the grand jury's reliance on Couch's testimony would be permissible. United States v. Williams, 504 U.S. 36, 52-53 (1992) ("[T]he suspect under investigation by the grand jury [has n]ever been thought to have a right . . . to have exculpatory evidence presented. . . . [T]he 'common law' of the grand jury is not violated if the grand jury itself chooses to hear no more evidence than that which suffices to convince it an indictment is proper."); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400 (1959) (noting grand jury "indictments may be returned on hearsay"). And, even...