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United States v. Hernandez-Cuellar

United States District Court, E.D. Texas, Sherman Division

May 26, 2017

UNITED STATES OF AMERICA
v.
JOSE VICTOR HERNANDEZ-CUELLAR

          NOWAK, JUDGE

          MEMORANDUM ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.

         On May 1, 2017, the report of the Magistrate Judge (Dkt. #47) was entered containing proposed findings of fact and recommendations that Defendant Jose Victor Hernandez-Cuellar's Motion to Suppress Evidence (Dkt. #25), Motion for Continuance of Suppression Hearing (Dkt. #40), and Opposed Motion Requesting Evidentiary Hearing (Dkt. #41) each be denied. Having received the report of the Magistrate Judge (Dkt. #47), and having considered Defendant's timely filed objections (Dkt. #49), and the Government's Response thereto (Dkt. #50), the Court is of the opinion that the recommendation of the Magistrate Judge is correct and the Motion to Suppress, Motion for Continuance, and Motion for Evidentiary Hearing each should be DENIED.

         RELEVANT BACKGROUND

         The Government's search and seizure of information from Defendant's computer and the subsequent search of his home form the basis of the present evidentiary dispute (see generally Dkt. #25; Dkt. #38; Dkts. #40-41; Dkt. #47). The Magistrate Judge sets out the facts of this case in further detail, and the Court need not repeat them here in their entirety (see Dkt. #47 at 1-5). Accordingly, the Court sets forth herein only those facts pertinent to Defendant's objections.

         Defendant was indicted on September 7, 2016, for violation of 18 U.S.C. § 2251(a), (e) (Production of Child Pornography) (Dkt. #11). The Government's charges against Defendant arose following search of his home and seizure of evidence pursuant to a warrant issued by a United States Magistrate Judge in the Eastern District of Texas (“Residential Warrant”) (see Dkt. #25, Exhibit 1). The Residential Warrant authorized search of Defendant's home (2201 Rockbrook Dr., Apartment 1131, Lewisville, Texas, 75067) based upon an affidavit provided by FBI Special Agent Christopher W. Thompson (Dkt. #25, Exhibit 1, Affidavit) (“Thompson Affidavit”). The Thompson Affidavit provides Thompson's credentials, explains Thompson's bases for probable cause to search Defendant's home and seize evidence therein, and describes the FBI's background investigation of a website (and its users) called “Playpen” or “Website A” (Thompson Affidavit at 11-20). Specifically, the Thompson Affidavit details the investigation of user “zapatero5” and the FBI's discovery of Defendant's access of Website A under such username (Thompson Affidavit at 20-23).

         According to the Thompson Affidavit, “law enforcement agents acting pursuant to an order of the United States District Court for the Eastern District of Virginia” conducted an investigation of user zapatero5 (Thompson Affidavit at 14). More specifically, a United States Magistrate Judge in the Eastern District of Virginia (“Eastern District of Virginia Magistrate”) issued the order (warrant) referenced in the Thompson Affidavit. This warrant authorized the search of computers, including Defendant's, accessing Website A's server (at a time when the server was located in the Eastern District of Virginia) through a set of computer instructions the FBI installed on the server called a “Network Investigative Technique” or “NIT” (Dkt. 25, Exhibit 2) (“NIT Warrant”).

         Defendant challenges the Residential Warrant only to the extent it relies upon the NIT Warrant as a basis for probable cause; Defendant concedes that, if the Court finds the NIT Warrant valid and legal, then the Residential Warrant would be facially valid, as well (Dkt. #46 at 3).

         The NIT Warrant includes two attachments specifying the “[p]lace to be searched” (Attachment A) and the “[i]nformation to be seized” (Attachment B). Attachment A provides in whole as follows:

This warrant authorizes the use of a network investigative technique (“NIT”) to be deployed on the computer server described below, obtaining information described in Attachment B from the activating computers described below.
The computer server is the server operating the Tor network child pornography website referred to herein as the TARGET WEBSITE, as identified by its URL - upf45jv3bziuctml.onion - which will be located at a government facility in the Eastern District of Virginia.
The activating computers are those of any user or administrator who logs into the TARGET WEBSITE by entering a username and password. The government will not employ this network investigative technique after 30 days after this warrant is authorized, without further authorization.

(NIT Warrant, Attachment A). Attachment B describes the information to be seized as evidence of violations of various criminal statutes proscribing the use, distribution, or access of child pornography, namely the following:

From any “activating” computer described in Attachment A:
l . the “activating” computer's actual IP address, and the date and time that the NIT determines ...

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