United States v. Healey
United States v. Healey
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
On September 22, 2011, a jury found Mark Healey guilty of transporting, distributing, and possessing child pornography in violation of 18 U.S.C. § 2252A. On November 4, 2011 he moved for a new trial pursuant to Federal Rule of Criminal Procedure 33, arguing that “the cumulative impact of the Government’s multiple discovery violations was so serious a detriment to the defense’s preparation for trial and the construction of a defense strategy as to deny Mr. Healey due process and a fundamentally fair trial.”
II. BACKGROUND
A. Defense Counsel’s Access to Computer Evidence
The Government seized three computers that had belonged to Healey. The parties refer to them as “the Dell Laptop;” the “Encrypted Hard Drive,” which had been removed from defendant’s desktop Macintosh computer; and the “Imaged Hard Drive,” which was seized from the apartment of Healey’s boyfriend and was a backup copy of the Dell Laptop.
In late June of 2011, defense counsel asked the Government to provide it “with mirror images of the hard drives from which child pornography would be redacted.”
After entering the FBI’s offices and being relieved of all electronic devices, de
B. Third Parties’ Access to Healey’s Computers in 2010
Because there was no dispute that the computers at issue belonged to Healey and contained child pornography, both parties understood that “the central issue at trial would be whether any child pornography recovered from these devices was placed on them by Mr. Healey or by a third party.”
The Government initially believed that nobody had attempted to access the Encrypted Hard Drive or the Dell Laptop during that time. In the days just before and during the beginning of trial, it learned otherwise and informed defense counsel of this information.
C. Testimony of Cotton
Cotton testified that he had no interest in pornography.
III. APPLICABLE LAW
A. Federal Rule of Criminal Procedure 33
Federal Rule of Criminal Procedure 33 (“Rule 33”) states that “[u]pon the
must establish the following: (i) the witness actually committed perjury; (ii) the alleged perjury was material; (iii) the government knew or should have known of the alleged perjury at time of trial; and (iv) the perjured testimony remained undisclosed during trial. When the perjury was disclosed during the trial, a new trial should not be granted. As long as the jury is alerted to a witness’ lies, the jury — the appropriate arbiter of the truth — can sift falsehood from fact and make its own credibility determinations.20
“A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory.”
Prosecutors may not vouch for their witnesses’ credibility.
In other words, a prosecutor is prohibited from expressing his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.... An improper remark by a prosecutor will justify a reversal by the Court only if it causes the defendant substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process.23
If the defendant does not object at trial to the prosecutor’s remarks, his demand for a new trial must be rejected unless it “ ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ ”
B. Federal Rule of Criminal Procedure 16
Rule 16(a)(1)(B) requires that “[ujpon a defendant’s request, the government must disclose to the defendant, and make available for inspection, copying, or photographing” any relevant written or recorded statement by the defendant if the statement is within the government’s control and the prosecutor knows or should know that it exists. Rule 16(a)(1)(E) requires that “[u]pon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or
If a party fails to comply with Rule 16, the court may order discovery, grant a continuance, preclude the introduction of evidence, or enter any other just order.
C. Jencks Act
The Jencks Act, also known as Section 3500, requires that “[a]fter a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.”
D. Adam Walsh Child Protection and Safety Act (“the Walsh Act”)
The Walsh Act, signed into law in 2006, imposes the following prohibition on the reproduction of child pornography during criminal proceedings:
(m) Prohibition on reproduction of child pornography.
(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) shall remain in the care, custody, and control of either the Government or the court.
(2) (A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, .or otherwise reproduce any property or material that constitutes child pornography (as defined by section 2256 of this title), : so long as the Government makes the property or material reasonably available to the defendant.
(B) For the purposes of subparagraph (A), property or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.28
IV. DISCUSSION
A. Disclosure of Non-Pornographic Data Under Rule 16
Healey argues that the Government failed to comply with its Rule 16 obli
It is common practice for the Government to produce to defendants copies of Rule 16 material, either in digital or paper form. But it is not required by the terms of the rule. Rather, Rule 16 requires that the Government disclose the material and make it available for inspection, copying, or photographing. Therefore, Healey’s repetitious claim that “[pursuant to Rule 16, the Government was required to produce this data to the defense,” is incorrect.
Healey also argues that the Government did not give him a fair opportunity to inspect the relevant non-pornographic materials. The parties agree that performing forensic examinations of computers is a daunting and difficult process that takes a long time and requires real expertise. Healey argues that “[t]here is simply no way this task could have been adequately accomplished [by defense counsel and the defense’s expert] under the highly restrictive conditions imposed by the [Government.”
But Healey does not explain why the conditions imposed by the Government were improper. He does not allege that the Government limited the amount of time that his counsel or expert could spend with the material, made the scheduling of those inspections difficult, refused to permit his expert to copy the material, or in any other way deprived him of his right to inspect and copy as required by Rule 16. The fact that the computers seized from Healey contained a large amount of material does not mean that the Government’s form of disclosure was improper.
Healey has placed emphasis on a November 21, 2009 webcam video (“the November 21 video”) that was particularly helpful to the Government because it showed that the defendant was engaged in chat room conversations regarding pornography. Healey argues that this video was a “recorded statement by the defendant” subject to disclosure (or what he calls “production”) under Rule 16(a)(l)(B)(i). But, as the Government points out, even assuming that a silent video of a defendant can be considered a recorded statement, “the Government is not required to preview its case or identify which pieces of evidence it believes will be most persuasive.”
At that July 6 conference, defense counsel informed the Court that he and his expert needed more time to perform the necessary forensic examination of the computer evidence and prepare an adequate defense.
In order to vindicate both the rights of criminal defendants and the public policy against child pornography, the Walsh Act requires that the Government provide defendants and their attorneys and experts “ample opportunity for inspection, viewing, and examination [of the child pornography] at a Government facility” and simultaneously prohibits the Government from producing copies of the illicit material to defense counsel.
Healey cites United States v. Cameron for the proposition that under Rule 16 and the Walsh Act, the Government must produce to the defense material other than child pornography from a computer that contains child pornography.
Healey’s counsel had access to the computers at issue from March until September of 2011. When defense counsel asked for additional time to prepare for trial, he received a six week adjournment. But he never told the Court that the Government’s terms of access were problematic or that he could not adequately inspect or copy the computer files. Counsel had ample opportunity to examine and analyze the computers at issue and cannot now claim a denial of his right to a fair trial after silently acquiescing to the terms of access for six months.
B. Failure to Produce Trial Exhibit 33 in Advance of Trial
Healey argues that because the Government failed to produce the November 21 video as an exhibit prior to trial, it should not have been admitted and its admission merits a new trial.
C. Late Disclosure of Expert Testimony
Healey argues that the Government’s delay in disclosing expert testimony, with regards to the three different computers, caused him substantial prejudice. It is true that the Government discovered the evidence underlying the testimony rather late in the trial, which caused delay and confusion. But the Government disclosed the information as soon as it was discovered and thus complied with its obligations. Most importantly, there was no prejudice to defendant because of the content of the information.
1. Activity on the Dell Laptop
Between June 2, 2010 and June 8, 2010, 154 crash log files were automatically created on the defendant’s Dell Laptop (which was not in his possession at the time) as a result of a system shutdown. These files were not created by a human being and no other files were added to the Dell Laptop between those dates.
Between June 1, 2010 and June 7, 2010, there were four unsuccessful attempts to log in to the defendant’s Dell Laptop, which was password protected. The Government’s expert, Stephen Flatley, only discovered these attempts after trial began.
2. Access to the Encrypted Hard Drive
On September 14, 2011, after the trial had begun, Flatley informed the prosecutor that while reviewing data in anticipation of his testimony, he had discovered that the defendant’s Encrypted Hard Drive had been plugged in to a computer — presumably in order to view the files on the encrypted' hard drive — between June 2, 2010 and June 8, 2010, when the drive was not in the defendant’s possession.
The Government submits that the Assistant United States Attorney informed defense counsel of this new information by telephone on the evening of September 14 and walked defense counsel through Flatley’s anticipated testimony.
As I explained during trial, once again the problem was not a matter of the Government’s disclosure obligations.
3. Makeup of the Imaged Hard Drive
A third hard drive — called the Imaged Hard Drive — was a backup copy of defendant’s Dell Laptop. During the September 6, 2011 pre-trial conference, the prosecutor said that “[Healey] used this hard drive to back up his computer. As a result, the copy is a mirror image in many ways. It is identical.”
D. Testimony of Neal Cotton
Healey argues that Cotton committed perjury by repeatedly asserting that he has no interest in pornography
When confronted by defense counsel about the sexually explicit photos on his Google profile and his previous statement that he was not interested in pornography, Cotton gave a debatable but plausi
The prosecutor repeatedly argued to the jury that Cotton had told the truth. The American Bar Association’s standard for Criminal Justice, which the Second Circuit has cited approvingly, says that in closing arguments, “[t]he prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.”
V. CONCLUSION
For the reasons stated above, Healey’s motion for a new trial or an evidentiary hearing is denied. Sentencing is scheduled for May 7, 2012 at 4:30 p.m.
SO ORDERED.
. Memorandum of Law in Support of Defendant's Motion for New Trial ("Def. Mem.”) at 1.
. See Reply Memorandum of Law in Support of Defendant’s Motion for a New Trial at 2-9.
. Def. Mem, at 4.
. 3/3/11 Letter, Ex. C to Memorandum of Law of the United States of America in Opposition to the Defendant’s Motion for a New Trial (“Opp. Mem.”) at 4.
. Def. Mem. at 4.
. See id. at 4 n. 1.
. See Opp. Mem. at 11.
. Def. Mem. at 15.
. See id.
. See id. at 18-19 and Opp. Mem. at 29-33.
. See Trial Transcript ("Trial Tr.”) at 596:8-9.
. See id. at 619:23.
. See id. at 337:13-24.
. See id. at 793:9-794:24.
. Id. at 1286:18.
. Id. at 1297-1298.
. Id. at 1327:2.
. Fed.R.Crim.P. 33(a).
. United States v. Zichettello, 208 F.3d 72, 102 (2d Cir. 2000) (quotation and citation omitted).
. United States v. Bourke, No. 05 Cr. 518, 2011 WL 6376711, at *6 (S.D.N.Y. Dec. 15, 2011) (quotations and citations omitted).
. United States v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001) (citing United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)).
. United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991).
. United States v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (quotations and citations omitted).
. Id. (quoting Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
. See Fed.R.Crim.P. 16(d).
. United States v. Thai, 29 F.3d 785, 804 (2d Cir. 1994) (internal citation omitted). Accord United States v. Chavez, 549 F.3d 119, 129 (2d Cir. 2008).
. 18 U.S.C. § 3500(b).
. Id.§ 3509(m).
. Def. Mem. at 10.
. Id. at 12.
. Id. at 11. Defense counsel misrepresents not only Rule 16, but the cases interpreting it. See United States v. Matthews, 20 F.3d 538, 550 (2d Cir. 1994) (holding that a love letter should have been disclosed to the defendant, not produced to him). See Def. Mem. at 13-14.
. Def. Mem. at 13.
. Opp. Mem. at 19.
. United States v. Ohle, No. 08 Cr. 1109, 2011 WL 651849, at *4 (S.D.N.Y. Feb. 7, 2011), aff'd, 441 Fed.Appx. 798 (2d Cir. 2011).
. See July 6 Transcript, Ex. E to Opp. Mem., at 6-11, 54-56.
. See id. at 11:8.
. 18U.S.C. § 3509(m).
. See United States v. Knellinger, 471 F.Supp.2d 640, 650 (E.D.Va. 2007).
. See Def. Mem. at 11 (citing United States v. Cameron, 672 F.Supp.2d 133, 141 (D.Me. 2009)).
. "[E]ven though Mr. Cameron says that the Government should redact the images of child pornography from the photo albums it received from the Internet Service Providers and forward the non-pornographic images, the Court is unaware why the Government’s offer for inspection should not satisfy the Defendant’s need for access. To require the Government to sift through the photo albums, redact non-pornographic images, and prepare a special document runs against the principle that the Government is not required to create a document to respond to a defense request for discovery. In the event Mr. Cameron has difficulties with the access the Government has accorded, he is free to reinitiate his request with a more specific justification.” Cameron, 672 F.Supp.2d at 141.
. Id. at 140.
. See Def. Mem. at 7-9.
. See Opp. Mem. at 20-21.
. See Trial Tr. at 952:22-25.
. See Opp. Mem. at 26.
. See Trial Tr. at 528:11-532:14 and Opp. Mem. at 34.
. See Opp. Mem. at 34.
. See id. at 29.
. Id.
. The defendant did not object to the timing of the disclosure of these unsuccessful log-in attempts or seek a continuance with respect to it. See id. at 35.
. See Trial Tr. 600:9-19.
. See id. Healey argues that Flatley and the prosecutor told conflicting stories about when and why Flatley made these examinations. See Def. Mem. at 21-24. The Government correctly points out that this argument is unavailing: the testimony shows that Flatley independently realized that there had been attempts to access the hard drive and was then instructed to investigate the matter further. See Opp. Mem. at 41.
. See Trial Tr. at 565:1-4; 566:16-567:8.
. See Opp. Mem. at 30.
. See Def. Mem. at 20-21 n. 6.
. See Trial Tr. at 600:21-601:1.
. See id. at 614:22-615:1.
. Opp. Mem. at 44.
. See Trial Tr. at 617:13-16. The 404(b) file at issue — -a folder entitled “14 years [sic] old girl raped by mail man” — had been the subject of the defendant's opposition motion in limine and the Government argued that "it was powerful evidence, demonstrating that on an encrypted hard drive, to which the defendant alone had the password, there is a movie the title of which is consistent with child pornography.” Opp. Mem. at 45.
. Def. Mem. at 18.
. See Opp. Mem. at 38.
. See Def. Mem. at 35.
. See id. at 37.
. See Opp. Mem. at 51-56.
. See id. at 47.
. See Trial Tr. at 795-851.
. See United States v. Canova, 412 F.3d 331, 349 (2d Cir. 2005).
. Zichettello, 208 F.3d at 102.
. ABA Standards for Criminal Justice, Standard 3-5.8(b) (1993). See United States v. Modica, 663 F.2d 1173, 1178 (2d Cir. 1981) (citing an immaterially different previous version of the same standard).
. United States v. Spinelli, 551 F.3d 159, 169 (2d Cir. 2008).
. See Carr, 424 F.3d at 227.
Reference
- Full Case Name
- United States v. Mark HEALEY
- Status
- Published