United States District Court, E.D. Wisconsin
ORDER OVERRULING DEFENDANT'S OBJECTION (DKT. NO.
24) TO MAGISTRATE JUDGE JONES' ORDER (DKT. NO. 22),
DENYING DEFENDANT'S MOTION TO COMPEL (DKT. NO. 17), AND
AFFIRMING THE ORDER
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
jury has charged the defendant with possessing and
distributing child pornography.
August 11, 2017, the defendant filed a motion, asking the
court to compel the government to “divulge who produced
the IP address associated with the ChatStep moniker
‘hornydad' and how that source obtained the IP
address.” Dkt. No. 17 at 7.
motion alleged that the government had monitored on online
chat room, and had observed a user with the screen name
“hornydad” post messages that contained
hyperlinks to folders containing child pornography files.
Id. at 2. The motion indicates that FBI agents
contacted the Department of Homeland Security, and that an
agent of DHS contacted a foreign law enforcement partner and
gave that partner the IP address associated with
“hornydad” on ChatStep. Id. The IP
address was associated with a Time Warner cable user; the FBI
served a subpoena on Time Warner, and found that the screen
name was assigned to the defendant. Id. at 2-3.
defendant alleges in his motion to compel that federal law
enforcement officers used a technique called “parallel
construction” to obtain the search warrant they used to
recover evidence against the defendant. Id. at 1.
The defendant asserts that “parallel
construction” is “a law enforcement technique
where police create an investigative trail to conceal how
they originally discovered criminal activity.”
Id. He asserts that the “new”
investigative trail “is typically free of identifiable
Fourth Amendment infractions, while the original
investigative techniques that may have violated the Fourth
Amendment are never revealed.” Id. He claims
that in “most cases” where law enforcement
officers use parallel constructions, “a defendant will
never know of it.” Id.
case, the defendant argues that the government used, and has
disclosed that it used, parallel construction. He objects,
however, to the fact that the government has refused to tell
him the identity of the “foreign law enforcement
partner, ” or to tell him how that partner obtained the
information it provided to the DHS. Id. The motion
indicates that the defendant has asked for that information,
but that the government has refused to produce it.
Id. at 3. Thus, the defendant asked the court to
compel the government to produce the information.
government responded, arguing that the defendant had not
cited any provision of the Federal Rules of Criminal
Procedure or any other rule or statute that would require the
government to produce the information the defendant sought.
Dkt. No. 20 at 4. Rather, the government pointed out, the
defendant's argument was based on a law review article
criticizing the practice of parallel construction under
certain amendments to the Foreign Intelligence Surveillance
Act (“FISA”). Id. The government went
through an analysis of the rules and case law on discovery in
criminal cases, as well as the law enforcement privilege, and
for a variety of reasons, urged the court to deny the
defendant's motion. Id. at 5-9. The defendant
filed a reply. Dkt. No. 21.
August 31, 2017, Magistrate Judge Jones denied the
defendant's motion to compel. Dkt. No. 22. The defendant
objected to this order, dkt. no. 24, and the government
responded to the objection, dkt. no. 26. This court overrules
the defendant's objection, and affirms Judge Jones'
636(b)(1)(A) of Title 28 authorizes district courts to
designate magistrate judges to “hear and determine any
pretrial matter pending before the court, ” with a
handful of exceptions not relevant here. The district court
in this district has made such a designation. The Local Rules
for the Eastern District of Wisconsin authorize the
magistrate judges to “supervis[e] and determin[e] . . .
without limitation, motions and orders made pursuant to Fed.
R. Crim. P. . . . 16[.]” Gen. L. R. 72(b)(2)(N). Fed.
R. Crim. P. 16 governs discovery in criminal cases. In
denying the motion to compel because he found that
“[the defendant] ha[d] not met his burden of
establishing that the information he [sought] [was] material
to preparing his defense, ” Judge Jones acted squarely
within his authority under Gen. L.R. 72(b)(2)(N). Dkt. No. 22
defendant now asks this court to reconsider that order. Under
28 U.S.C. §636(b)(1)(A), a district judge may reconsider
a magistrate judge's determination on a pretrial matter
only “where it has been shown that the magistrate
judge's order is clearly erroneous or contrary to
law.” This standard is different from the de
novo standard the district court uses to review a
magistrate judge's report and recommendation. The
defendant's objection neither cites this standard nor
argues that Judge Jones' order is clearly erroneous or
contrary to law. Dkt. No. 24. Absent a showing that Judge
Jones' order was clearly erroneous or contrary to law-a
showing the court does not believe the defendant could
make-the court has no basis to revisit Judge Jones'
court OVERRULES the defendant's
objection to Judge Jones' order, dkt. no. 24,
DENIES the defendant's motion to compel,
dkt. no. 17, ...