CINDY K. JORGENSON, Senior District Judge.
Pending before the Court are the Motion for New Trial (Doc. 216) and the Motion for Discovery (Doc. 217) filed by Defendant Ryan Galal VanDyck ("VanDyck"). The government has filed responses (Docs. 221 and 222) and VanDyck has filed a reply (Doc. 228). VanDyck has requested an evidentiary hearing as to the Motion for New Trial.
Fed.R.Crim.P. 33 allows the Court to order a new trial "if the interest of justice so requires." Although a court's power to grant a motion for a new trial is "much broader than its power to grant a motion for judgment of acquittal," it may not grant the motion unless it finds that "despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict" such that "a serious miscarriage of justice may have occurred." United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000) (citation omitted); United States v. Alston, 974 F.2d 1206, 1211-12 (9th Cir. 1992). However, the "burden of justifying a new trial rests with the defendant." United States v. Saya, 101 F.Supp.2d 1304, 1307 (D.Hawai'i 1999) (citing United States v. Shaffer, 789 F.2d 682, 687 (9th Cir. 1986)). "[T]he government bears the burden of proving beyond a reasonable doubt that an error was harmless." United States v. Benamor, 925 F.3d 1159, 1166 (9th Cir. 2019) (citation omitted).
The applicable rule also states:
Fed.R.Crim.P. 33. The Ninth Circuit has stated:
United States v. Harrington, 410 F.3d 598, 601 (9th Cir. 2005) (citing United States v. Kulczyk, 931 F.2d 542, 548 (9th Cir.1991); see also United States v. Brugnara, 856 F.3d 1198, 1206 (9th Cir. 2017).
In this case, VanDyck presents information that the detective who obtained the search warrant may have had reason to know of information which contradicted statements included in the affidavit in support of the application for the search warrant. Specifically, Detective Daniel Barry averred in the September 2014 search warrant affidavit that child pornography collectors typically retain the child pornography, prefer not to be without their child pornography for any prolonged period of time, and may store digital media in online locations. However, FBI special agent Eric Campbell testified in an unrelated matter in October 2016 that he had seen a recent change in how child pornography defendants maintain their collections. VanDyck summarizes:
Motion for New Trial (Doc. 216, p. 7). VanDyck argues that, if Detective Barry knew, or should have known, of the recent trend in 2014, there would not have been a substantial basis to believe that the image would still be present at the VanDyck residence at the time of the search warrant application and the warrant would probably not have been issued. In support of his argument, VanDyck also points out that Agent Campbell worked with Detective Barry on this case and Detective Barry has received extensive training in this area.
The government argues, however, the information is not newly discovered evidence. The government points out that Agent Campbell did not testify that younger child pornography consumers using the internet did not maintain collections of child pornography, nor did he participate in obtaining a search warrant in this case. Agent Campbell's testimony was approximately two years after the warrant was obtained in this case and Detective Barry even testified in this case that the internet is always changing. The government asserts, "the affidavit was based on the information [that] was known to Detective Barry on September 3, 2014; not the information learned by a different agent working in a different agency two years later. This is not new evidence." Response (Doc. 222, p. 9).
At a defendant's request, the government is to disclose documents within the government's possession, custody, or control and which are material to preparing the defense. Fed.R.Crim.P. 16(a)(1)(E). Rule 16 grants defendants "a broad right of discovery," which includes both exculpatory and inculpatory evidence that is relevant to the defense. United States v. Muniz-Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013); United States v. Doe, 705 F.3d 1134, 1150 (9th Cir. 2013). Unlike material required to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963), a "defendant must make a threshold showing of materiality" to compel discovery under Rule 16. Muniz-Jaquez, 718 F.3d at 1183. This requires a defendant to "make a threshold showing of materiality, which requires a presentation of facts which would tend to show that the Government is in possession of information helpful to the defense." Doe, 705 F.3d at 1150 (quoting United States v. Stever, 603 F.3d 747, 752 (9th Cir.2010)). General descriptions and conclusory allegations are insufficient to compel discovery under Rule 16. United States v. Santiago, 46 F.3d 885, 894 (9th Cir.1995) (quoting United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990)).
For example, in Stever, the defense articulated specific reasons why it requested documents, including officer training materials, regarding Mexican drug trafficking organizations ("DTOs").
603 F.3d at 754 (citations omitted).
Here, VanDyck requests disclosure of any and all information relating to "Detective Barry's training in [the use of the internet in child pornography crimes, including whether younger individuals retain images of child pornography] and if or when he learned, from any source, of the information to which Agent Campbell testified in the Rusnak case." Motion for New Trial (Doc. 216, p. 16); see also Motion for Discovery (Doc. 217, p. 1). The Court finds VanDyck has established the potential evidence is material, has set forth a good faith basis warranting an opportunity to develop/locate such evidence, and is entitled to discovery relating to his Motion for New Trial.
The Court finds training documents and other materials may provide information as to if and when Detective Barry may have learned of the recent trend discussed by Agent Campbell. Further, the Court finds VanDyck has established that exceptional circumstances exist and in the interest of justice a deposition of Detective Barry is warranted. See Fed.R.Crim.P. 15(a). The Court, therefore, will grant the Motion for Discovery and defer ruling on the Motion for New Trial. However, the Court will limit the time period for the training documents and other materials.
Accordingly, IT IS ORDERED:
1. The Motion for Discovery (Doc. 217) is GRANTED.
2. The government shall disclose documents regarding Detective Barry's training regarding child pornography crimes as to whether younger individuals retain images of child pornography and if or when he learned, from any source, of the information to which Agent Campbell testified in the Rusnak case. The training documents for Detective Barry from September 2013 through October 2016, and any other materials from which Detective Barry may have learned of the information shall be provided to VanDyck on or before December 6, 2019.
3. VanDyck may depose Detective Barry as to if and when he learned, from any source, of the information to which Agent Campbell testified in the Rusnak case. The deposition shall take place at a location and on a date that is mutually agreeable to the parties and the witness.
4. VanDyck may file any supplement to his Motion for New Trial on or before December 23, 2019; the government may file any supplement to its response to the Motion for New Trial on or before January 10, 2020.