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United States v. Schimley

December 21, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
MARK SCHIMLEY, DEFENDANT.



The opinion of the court was delivered by: Lesley Wells United States District Judge

MEMORANDUM OF OPINION AND ORDER DENYING DEFENDANT'S MOTION TO RECONSIDER

UNITED STATES DISTRICT JUDGE LESLEY WELLS

Before the Court is defendant Mark Schimley's motion to reconsider the Court's 25 September 2009 order denying his motion to suppress and his request for a Franks hearing. (Docket No. 30). Mr. Schimley asks the Court to reconsider its ruling because the government's brief in opposition raised issues of fact that were unknown to him at the time he filed his original motion. (Docket No. 30). The defendant, who is charged with possession and distribution of child pornography, specifically requests an evidentiary hearing wherein he might cross-examine the investigator in this case regarding the computer software used to collect evidence for a search warrant. (Docket No. 30). The government argues that the motion should be denied, because any new issue of fact that may have been raised by its original opposition fails to meet the standard set out in Franks v. Delaware. (Docket No. 31). For the reasons that follow, the Court will deny Mr. Schimley's motion.

I. Background

Mr. Schimley's two count indictment for violations of 18 U.S.C. § 2252 arose from Pennsylvania State Trooper Robert Erdely's investigation of the distribution of child pornographic images and movies through peer-to-peer file sharing networks. (Docket 24 at 1-3). The warrant executed on Mr. Schimley's home on 6 March 2007 was supported by the affidavit of Special Agent Joseph M. Russ, which was based almost entirely on the investigations of Trooper Erdely. (Docket 24 at 1).

The Warrant Affidavit

The warrant affidavit indicates that on 13 February 2007 through the use of an internet connected computer and software called Phex, Trooper Erdely conducted a search for child pornography using the keyword phrase "[Loli Child Porn] (Loli Y) Babj00(New) by Kidzilla.avi," on a peer-to-peer file sharing network. (Docket No. 23-2, ¶24). According to the affidavit, this search revealed 3929 files for download originating from a network user associated with the IP address 24.166.103.205 ("IP address 205"). (Docket No 23-2, ¶23). Among these files, Trooper Erdely was allegedly able to identify sixty movie and image files that contained names relating to child pornography, based on his previous experience in other investigations. (Docket No. 23-2, ¶23). Trooper Erdely downloaded one file from IP address 205, which depicted child pornographic images. (Docket No. 23-2, ¶23). The affidavit described the video as follows:

[Loli Child Porn] (Loli Y) Babj 00(New) by Kidzilla.avi (video file of nude prepubescent female, with no pubic hair, stripping. An adult male is then seen penetrating the vagina of the prepubescent on multiple occasion [sic] during the twenty one minute (21 min) video clip. The prepubescent female is also seen using an oversized sharpie marker to penetrate her vagina). (Docket No. 23-2, ¶23(a)).

According to the affidavit, because Phex captures and logs incoming data, Trooper Erdely was able to verify that the downloaded file was transferred directly from the IP address 205. (Docket No. 23-2, ¶24). The trooper matched the SHA-1 hash value*fn1 to confirm that the downloaded file and the shared file were one and the same. (Docket No. 23-2, ¶24). The affidavit states that Trooper Erdely also matched the SHA-1 hash values of fifty-nine other files being shared at IP address 205 with video and image files previously identified as child pornography. (Docket No. 23-2, ¶25). Based on these findings, an administrative subpoena was issued to the internet service provider, which revealed that at the date and time Trooper Erdely took the above actions, IP address 205 was assigned to an account registered to Mark Schimley, 1225 North Road, Apt. 110, Niles, Ohio 44446. (Docket No. 23-2, ¶26).

Based on this affidavit and an application submitted by Agent Russ, Magistrate Judge Limbert granted the search warrant. (Docket No. 23 at 3). Agents searched Mr. Schimley's residence and seized his computer, which allegedly contained child pornographic images and movies. (Docket No. 23 at 3). Mr. Schimley was subsequently indicted under two counts: (1) knowingly receiving and distributing files containing visual depictions of real minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2), and (2) knowingly possessing a computer and CDROM/DVD that contained child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). (Docket No. 1).

On 29 July 2009, Mr. Schimley filed a motion to suppress and requested a Franks hearing. (Docket No. 23). In that motion, Mr. Schimley argued that because the warrant affidavit contained material false statements, made knowingly and deliberately, or with reckless disregard for the truth, he was entitled to evidentiary hearing pursuant to Franks v. Delaware. (Docket No. 23 at 8-11). It was in fact revealed, and the government conceded, that the warrant affidavit included two false statements,*fn2 as Mr. Schimley's hard drive did not contain a file by the name of "[Loli Child Porn] (Loli Y) Babj 00(New) by Kidzilla.avi," as the affidavit had specified.*fn3 (Docket No. 23 at 3-4).

The government explained this discrepancy as a consequence of the Phex program's functionality. According to the government,

[Trooper Erdely] maintains a text file which contains the names and hash values of known child pornography images recovered from other investigations. When the trooper enters a search term into Phex, the search results will typically reveal tens or hundreds of Phex users sharing a file containing the search term. The list would include multiple users sharing the same file, although the file may be saved under a different file name. If the search results include a file with the same name or hash value as a file stored in the text file, then the name from the trooper's text file will be assigned to the image he selects for download. (Docket No. 24 at 4-5). Thus, according to the government, when the trooper downloaded the suspect file from Mr. Schimley's IP address, that file was cross-referenced against his text file, either by file name or hash value, and assigned a name as specified in the text file. (Docket No. 24 at 4-5).

In his motion to suppress, Mr. Schimley argued that he was entitled to a Franks hearing because the file referenced in the affidavit was not found on his hard drive. (Docket No. 23 at 8). Mr. Schimley contended that pursuant to Franks, once every reference to the erroneously named file was excised from the affidavit, the warrant was rendered without probable cause. (Docket No. 23 at 9-11).

The Court's 25 September 2009 Denial of Mr. Schimley's Motion to Suppress In considering Mr. Schimley's arguments the Court used the following two-part test: (1) the defendant must make a substantial preliminary showing that the warrant affidavit contained false statements that were made "knowingly and intentionally, or with reckless disregard for the truth," and (2) the challenged statements must be necessary to a finding of probable cause. Franks v. Delaware, 438 U.S. 154, 155-56 (1978). Because the government had conceded that the affidavit contained a false statement, the Court was left to decide whether the false statement was made knowingly and intentionally, or with reckless disregard for the truth, and whether the false statement was necessary to the finding of probable cause. (Docket No. 29 at 5-6).

The Court held that Mr. Schimley had not made a substantial showing that inclusion of false statement in the affidavit was intentional or reckless. (Docket No. 29 at 9). Mr. Schimley essentially contended that simply because the affidavit contained a false statement, Agent Russ' actions were necessarily intentional or reckless. (Docket No. 29 at 9). Unpersuaded, the Court held that Mr. Schimley did not meet his burden, because he presented no evidence, other than the existence of the falsehood, that Agent Russ or Trooper Erdely acted with knowledge, intent, or reckless disregard for the truth. (Docket No. 29 at 9). The Court further reasoned that inclusion of the wrong file name was not material to the finding of probable cause, as it is simply a label which did not bear on Magistrate Judge Limbert's probable cause determination. (Docket No. 29 at 10).

Mr. Schimley's Motion for Reconsideration

Mr. Schimley now asks the Court to reconsider this ruling on the grounds that new issues of fact had come to light with the filing of the government's opposition to Mr. Schimley's original motion. (Docket No. 30 at 1). First, Mr. Schimley argues that the Court should vacate its previous ruling and order a Franks hearing because, in coming to its conclusion that a hearing was unwarranted, the Court improperly relied on the government's unsubstantiated claim that the SHA-1 hash value of the downloaded file matched that of the file being shared at Mr. Schimley's IP address. (Docket No. 30 at 7). He maintains that review of the sufficiency of evidence supporting probable cause is limited to information presented within the four corners of the affidavit, pursuant to Whiteley v. Warden, Wyoming State Penitentiary, 401 ...


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