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United States v. Young

United States District Court, M.D. Louisiana

February 6, 2017

UNITED STATES OF AMERICA
v.
CHRISTOPHER G. YOUNG

          RULING AND ORDER

          JUDGE JOHN W. deGRAVELLES

         This matter comes before the Court on the Motion to Dismiss for Selective and Vindictive Prosecution (Doc. 11) by Defendant Christopher G. Young. The motion is opposed. (Doc. 12.) Evidentiary hearings were held on September 15, 2016, and October 5, 2016. (Docs. 24 & 37.) Both parties have provided extensive post-hearing briefing. (Docs. 39, 40, 45 & 47.) Oral argument was also heard on January 6, 2017. (Doc. 48.) The Court has carefully considered the law, evidence in the record, and the arguments of the parties. For the following reasons, the Defendant's motion is denied.

         TABLE OF CONTENTS

         I. Introduction and Summary of Ruling ....................................................................... 5

         II. Procedural History ..................................................................................................... 11

         III. Evidence in the Record .............................................................................................. 17

         A. Individuals Relevant to this Motion ................................................................... 17

         B. July 31, 2015-Initial Complaint ....................................................................... 19

         C. August 3, 2015-Arranging the Meeting with Ms. Wempren ......................... 20

         D. August 4, 2015-The Government Meets With Ms. Wempren for the First Time ................................................................................................. 21

         E. August 5, 2015-Galatoire's and the FBI Office .............................................. 23

         1. Defendant's Lunch with Wempren ...................................................... 23

         2. Defendant's Initial Encounter and Interview with the FBI Agents .......................................................................................... 24

         3. Defendant's Trip to the FBI Office and Agent Hattier's Alleged Inappropriate Comments .......................................................... 29

         4. Defendant's Trip Back to Galatoire's ................................................... 35

         F. August 6, 2015 ...................................................................................................... 36

         1. Downie's Work on Defendant's iPhone-Extracting the Files and Removing the Videos ........................................................ 36

         2. Defendant Gets His Phone Back, and Agent Soli Tells the Defendant That Defendant Is Not a Child Pornographer ............ 44

         G. August 7, 2015-Limited Extraction of Shantel Wempren's Phone ..................................................................................................................... 48

         H. Between August 7, 2015 and October 28, 2015 ................................................. 49

         1. Videos Still on the Phone ....................................................................... 49

         2. The Case Agent in this Investigation ..................................................... 52

         I. October 7, 2015-Agent Hattier's Review of the Cell Phone .......................... 53

         J. October 28, 2015-The Target Letter and Hattier's Second Alleged Set of Inappropriate Comments to the Defendant .............................. 56

         K. Beyond October 28, 2015 ..................................................................................... 63

         1. Defendant's Interaction with the FBI since the Target Letter ......................................................................................................... 63

         2. November 5, 2015-The Meeting Between the Government and the Defendant's Attorneys ......................................... 64

         3. January 5, 2016-Plea Negotiations ...................................................... 68

         4. January 26, 2016-Plea Negotiations .................................................... 68

         5. February 3, 2016 - The Government's Interview with Jessica Starns ............................................................................................ 69

         6. February 4-12, 2016-Plea Negotiations .............................................. 69

         7. Meeting Between Defense Counsel, the U.S. Attorney, the First Assistant U.S. Attorney, and the Prosecutor .......................... 71

         8. May 12, 2016-Indictment ..................................................................... 71

         L. Other Aspects of the Investigation .................................................................... 71

         1. Why Not Search Other Devices? ........................................................... 71

         2. Why Not Follow Up with Other Recipients? (And Other Inaction) ............................................................................... 74

         3. The National Center for Missing and Exploited Children Request ..................................................................................... 79

         4. The Young Girl in Costa Rica and the Legat Request ...................................................................................................... 80

         5. Did the FBI Know That Zeid Ammari Sent One of the Videos? And More on Why the Videos Were Not Removed ...... 83

         6. DOJ Guidelines and the Policy of the U.S. Attorney's Office for the Middle District of Louisiana ........................................... 87

         7. The Agent's Role ..................................................................................... 91

         8. Similarities (or Dissimilarities) To Other Cases .................................. 92

         9. Location of the Copy of the Phone ........................................................ 94

         IV. Discussion .................................................................................................................... 94

          A. Selective Prosecution .......................................................................................... 94

         1.Parties' Arguments .................................................................................. 94

         a. Defendant's Original Memorandum in Support (Doc. 11-1) .................................................................. 94

         b. Government's Original Opposition (Doc. 12) .......................... 96

         c. Defendant's Post-Hearing Memorandum (Doc. 40) .............................................................. 98

         d. Government's Post-Hearing Brief (Doc. 39) ........................... 100

         e. Defendant's Response to the Government's Post-Hearing Memorandum (Doc. 45) ..................................... 102

          f. Government's Reply to the Defendant's Post-Hearing Memorandum (Doc. 47) ..................................... 104

         2. Analysis .................................................................................................. 107

         a. Discriminatory Effect ................................................................ 110

         b. Discriminatory Purpose ............................................................. 118

         i. Guidelines for the DOJ And This U.S. Attorney Office ...................................................... 120

          ii. The Government's Initial Investigation Into the Defendant ......................................................... 122

         iii. Explanations for the Irregularities in the Investigation ................................................................... 124

          iv. Imputing Hattier's Statements to the U.S. Attorneys ................................................................. 127

         v. AUSA Cam Le's Meeting with Defense Counsel ............................................................................ 128

         vi. Evidence of Plea Negotiations ....................................... 129

         vii. Plain Language of the Statute ....................................... 130

         viii. Failure to Cooperate Is Not a Protected Right ................................................................................ 132

         ix. Summary ......................................................................... 133

         3. Legitimate Basis for Prosecuting ......................................................... 133

         B. Vindictive Prosecution ....................................................................................... 134

         1. Parties' Arguments ............................................................................... 134

         a. Defendant's Original Memorandum in Support (Doc. 11-1) ................................................................ 134

          b. Government's Original Opposition (Doc. 12) ......................... 134

          c. Defendant's Post-Hearing Memorandum (Doc. 40) ...................................................................................... 135

          d. Government's Post-Hearing Brief (Doc. 39) ........................... 137

          e. Defendant's Response to the Government's Post-Hearing Memorandum (Doc. 45) ..................................... 138

         f. Government's Reply to the Defendant's Post-Hearing Memorandum (Doc. 47) ..................................... 139

         2. Analysis ................................................................................................. 141

          a. Standard and Summary of Ruling on This Issue .................................................................................... 141

         b. Presumption of Vindictiveness .................................................. 142

         c. Actual Vindictiveness ................................................................. 144

         i. Agent Hattier's Statements Do Not Prove Vindictiveness ...................................................... 145

          ii. Insufficient Evidence of Misconduct by the United States Attorney's Office .............................. 147

          iii. Overwhelming Case Law Demonstrates that the Defendant's Motion Should Be Denied. . ...................................................................... 148

         V. Conclusion ................................................................................................................ 158

         RULING

         I. Introduction and Summary of Ruling

         Defendant Christopher G. Young is a local attorney and former lobbyist. Once in 2013 and again in 2015, he received two separate videos, each showing a prepubescent male engaged in a sexual act with a donkey. He forwarded these videos in text messages to about thirty-eight people on thirty-three separate occasions over a two-year period. Now, Young is charged with one count of distributing child pornography and one count of possessing child pornography.

         In the instant motion, Defendant argues that he was unlawfully targeted for prosecution because he refused to cooperate in a public corruption investigation and because he is a lobbyist. The Defendant claims selective and vindictive prosecution.

         Preliminarily, the Court is very sympathetic to the “common sense” argument made by defense counsel at oral argument. Agent Stephen Soli, who was the lead child pornography investigator for the FBI in this district for several years and the agent who first investigated this case, candidly testified that he told the Defendant that Defendant was not a child pornographer. This statement is entirely understandable considering the sense in which the Court believes Soli intended it and the sense in which most lay persons understand the term. Defendant received and passed on to friends a video of a minor male child having sex with a donkey, a video he did not create, search for, solicit, pay for, or share with others for purposes of his or anyone else's sexual gratification. The Government does not argue otherwise. Rather he sent the video to friends, family, and clients as a crude joke.

         The Defendant testified he never thought he was distributing child pornography, and this contention seems supported by the fact that he sent the videos openly to family, friends and clients. This conduct doesn't square with the conduct of others before me charged with the same offenses, defendants allegedly surreptitiously prowling the internet and receiving hundreds or thousands of child pornographic images which are viewed and shared with other child pornographers for sexual gratification.

         Defendant admits sending these two videos was a mistake. It certainly was. What he did was, by his own account, the kind of gross, juvenile, and unthinking act the Court suspects has probably been engaged in by millions (if not more) high schoolers and college fraternity boys. But the language of the criminal statutes under which he is charged contains no exemptions from criminal culpability because his purpose was not sexual gratification but, rather, to engage in locker room humor. One of these statutes carries with it a mandatory minimum of five years imprisonment if convicted. Given the seriousness of these charges and the social stigma associated with them, merely being charged can carry a heavy burden. Indeed, in this case, the Defendant testified he terminated his lobbying business and registration because he was “concerned about [his] clients” and because he didn't want to put them in an “uncomfortable situation.” If he pleads or is found guilty, he may well lose his license to practice law in addition to any prison sentence he is given.

         Whether to charge one with a crime and choosing the specific crime with which to charge a given defendant are decisions belonging to the prosecutor. It is an awesome power and grave responsibility, but it is one in which the Government is given very broad discretion. No matter how emphatically this Court may disagree with how the Government exercised its discretion in this case, it is powerless to affect that decision unless the Defendant is able to prove that the Government's decision was unlawful. He has not.

         Critically, in United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), the Supreme Court identified the core principles relevant to this issue and resolving this motion:

The Attorney General and United States Attorneys retain “ ‘broad discretion' ” to enforce the Nation's criminal laws. Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530-1531, 84 L.Ed.2d 547 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380, n. 11, 102 S.Ct. 2485, 2492, n. 11, 73 L .Ed. 2d 74 (1982)). They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to “take Care that the Laws be faithfully executed.” U.S. Const., Art. II, § 3; see 28 U.S.C. §§ 516, 547. As a result, “[t]he presumption of regularity supports” their prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926). In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978).

Id., 517 U.S. at 464, 116 S.Ct. at 1486. Although the Government's discretion is subject to constitutional limitations (including the ones implicated by this motion), the Supreme Court has recognized “why courts are properly hesitant to examine the decision whether to prosecute.” Id., 517 U.S. at 464-65, 16 S.Ct. at 1486 (citation and quotations omitted). The high court has specifically stated:

Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy.

Id., 517 U.S. at 465, 116 S.Ct. at 1486 (citations and quotations omitted).

         In short, “[t]he decision as to which crimes and criminals to prosecute is entrusted by the Constitution not to the judiciary, but to the executive who is charged with seeing that laws are enforced.” United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000) (citing U.S. Const. Art. II, § 3). “The judiciary cannot interfere with a prosecutor's exercise of charging discretion, except in narrow circumstances where it is necessary to do so in order to discharge the judicial function of interpreting and applying the Constitution.” Id.

         Having carefully reviewed the evidence, the arguments of the parties, and, most importantly, the law that this Court must follow, the Court finds that the Defendant has failed to satisfy his burden of proving that he was selectively and vindictively prosecuted. The Court bases this decision on the following reasons.

         First, the Court finds that the Defendant has not satisfied the very heavy burden required to demonstrate selective prosecution and to rebut the presumption of prosecutorial good faith. For this claim, the Defendant must prove discriminatory effect and discriminatory purpose of the prosecutor.

         Even assuming that the Defendant had proven discriminatory effect (i.e., that he was singled out for prosecution while others similarly situated and committing the same acts have not, a burden which strikes the Court as virtually insurmountable given the unique facts of this case), the Defendant has failed to prove a discriminatory purpose. The key question here is whether the Defendant was prosecuted “because of” his First Amendment rights to lobby and associate. In the Fifth Circuit, this requires that the government's discriminatory selection of him for prosecution be invidious or in bad faith in that it rests upon impermissible considerations such as the desire to prevent his exercise of constitutional rights.

         The Court has thoroughly reviewed the record and finds that the Defendant has not proven that the U.S. Attorney's Office for the Middle District of Louisiana acted with a desire to prevent the Defendant from exercising his constitutional rights, be it his right to lobby or his right to associate. Regardless of the irregularities in the investigation by Agent Hattier, the evidence shows that the U.S. Attorney's Office prosecuted the Defendant because its attorneys believed they had probable cause to suspect that the Defendant committed the crimes charged in the Indictment. The Court bases this decision on the following:

(1) The Defendant's prosecution is consistent with DOJ Guidelines generally and with the policy of the U.S. Attorney's Office in this district specifically, as confirmed by the Middle District of Louisiana Prosecution Guidelines for the United States Attorney's Office (July 2014) and the declaration of First Assistant United States Attorney and Criminal Division Chief Corey Amundson;
(2) The U.S. Attorney's Office's initial response and investigation of the complaint against the Defendant indicates an absence of bad faith by the Government;
(3) Several of the irregularities in the FBI's investigation have credible explanations;
(4) Even assuming that Agent Hattier made the improper statements attributed to him by the Defendant, the Court finds that there is insufficient evidence to impute these statements to the U.S. Attorneys who made the decision to prosecute;
(5) The record of the interview between the defense counsel and Assistant U.S. Attorney (“AUSA”) Cam Le shows that the Defendant was given an opportunity to cooperate like other defendants in other cases, not that the Government was seeking to inhibit the Defendant's ability to lobby or associate politically;
(6) Emails submitted by the Government reflect good faith plea negotiations by the Government, support its contention that it sought a felony conviction for this Defendant, and demonstrate that months of plea negotiations took place after the encounters with Hattier without any requirement that the Defendant cooperate in a public corruption investigation;
(7) The prosecution's actions are consistent with the plain language of the criminal statute at issue as well as some of the legislative history of that statute; and
(8) Defendant's claim is, in essence, more a claim that he was prosecuted for not cooperating rather than for lobbying or associating under the First Amendment. But case law establishes that refusing to cooperate is not a protected constitutional right, so there can be no selective prosecution claim.

         Lastly, with respect to the selective prosecution claim, even if the burden had shifted back to the Government to prove a legitimate basis for selecting the Defendant for prosecution, the Government's guidelines, Amundson's declaration, and the weight of the evidence against the Defendant support this basis. For this additional reason, the first part of the Defendant's motion is denied.

         Additionally, the Court finds that the Defendant has also failed to satisfy the very heavy burden of proving vindictive prosecution. Because this issue arose in the pretrial context, the Defendant is not entitled to a presumption of vindictiveness. He must instead prove, by a preponderance of the evidence, actual vindictiveness by presenting objective evidence that the prosecutor's actions were designed to punish him for asserting his legal rights.

         The Defendant has not done so. First, the main evidence Defendant relies upon to show punishment is Agent Hattier's alleged statements. Even assuming he said these things, case law establishes that these statements are not legally imputed to the prosecutors under the facts of this case. Second, the Court has thoroughly reviewed the record and finds, for the same reasons articulated above, that the prosecutors pursued charges against the Defendant because they thought they had probable cause that the Defendant committed the crimes in question; the AUSAs did not act to punish the Defendant for the exercise of any right. And third, even if the Defendant had shown that the U.S. Attorney's Office prosecuted the Defendant for not cooperating, case law demonstrates that there is no vindictive prosecution for such conduct under the facts of this case. For all of these reasons, the Defendant's motion is denied.

         II. Procedural History

         On May 12, 2016, the Defendant was indicted by the Grand Jury. (Doc. 1.) The Indictment alleges that Young was a part-owner of a hotel in Costa Rica, to which he frequently traveled for business and leisure. (Doc. 1 at 1.) According to the Indictment, on September 4, 2013, Defendant “obtained a video . . . from an associate in Costa Rica that depicted a prepubescent boy . . . engaging in bestiality.” (Doc. 1 at 1.) Defendant allegedly saved the video to his smart phone and, thereafter, from September 4, 2013, through August 29, 2014, distributed this video “on approximately [nineteen] separate occasions to [twenty-five] different people through the use of his smart phone.” (Doc. 1 at 1.) In the summer of 2015, Defendant replaced his old smart phone with an Apple iPhone 6 and allegedly transferred the video from his old phone to his new phone. (Doc. 1 at 1-2.)

         The Indictment further claims that, on or before July 23, 2015, Defendant “obtained a [second] video . . . from an associate in Costa Rica that depicted [another] prepubescent boy . . . engaging in bestiality.” (Doc. 1 at 2.) According to the Indictment, Young distributed this second video “on approximately [fourteen] separate occasions to [thirteen] different people through the use of his smart phone.” (Doc. 1 at 2.) The Indictment alleges that the Defendant possessed both of these child pornography videos “until his phone was taken by law enforcement on or about August 5, 2015.” (Doc. 1 at 2.)

         The Defendant is charged by the Grand Jury with two counts. (Doc. 1 at 2-3.) Count One alleges that, from on or about September 4, 2013, until on or about July 23, 2015, the Defendant knowingly distributed child pornography using any means and facility on interstate and foreign commerce, including an internet-enabled smart phone, in violation of 18 U.S.C. § 2252A(a)(2). (Doc. 1 at 2.) Count Two alleges that, during the same time, Defendant knowingly possessed images of child pornography of prepubescent minors and minors under the age of twelve that had been transported using any means and facility of interstate and foreign commerce, including a computer and an internet-enabled smart phone, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Doc. 1 at 2-3.)

         On May 26, 2016, the Defendant had his initial appearance and arraignment. (Doc. 8.) The Defendant pled not guilty to both counts of the Indictment, and the Defendant was released on his own recognizance with special conditions. (Doc. 8 at 1-2.) Trial was set for August 3, 2016. (Doc. 8 at 1-2.)

         On May 26, 2016, the Magistrate Judge issued a scheduling order. (Doc. 9.) The deadline for filing substantive motions was set for June 20, 2016. (Doc. 9.)

         On June 21, 2016, the Defendant filed the instant Motion to Dismiss for Selective and Vindictive Prosecution. (Doc. 11.) On June 24, 2016, the Government filed an opposition to the Defendant's motion. (Doc. 12.)

         On June 24, 2016, the Court set an evidentiary hearing for September 15, 2016. (Doc. 14.) On the same day, the Court continued the previously scheduled pretrial conference and jury trial, both to be reset at a later time. (Doc. 15.)

         On August 5, 2016, the Defendant filed a Motion and Incorporated Memorandum for Leave to File Reply Memorandum in Excess of Five Pages. (Doc. 16.) That motion was granted on August 8, 2016, (Doc. 17), and the reply was filed into the record on the same day. (Doc. 19.)

         On August 9, 2016, the Court ordered the Government to file into the record under seal the two pornographic videos identified in the Indictment. (Doc. 18.) The following day, the Court vacated that order and further ordered the FBI to provide the necessary equipment and videos for the Court to view the videos. (Doc. 20.) The Court specifically noted that “[t]here will be no substantive communications with FBI representatives regarding the video.” (Doc. 20.) The Court also gave the parties five days to lodge an objection. (Doc. 20.) Neither side did, and Court reviewed the two videos prior to the September 15, 2016, hearing.

         On September 15, 2016, the evidentiary hearing on the instant motion was held. (Doc. 24.) Witnesses were sequestered. (Mot. Hr'g Tr., 4-5, Sept. 15, 2016, Doc. 49.) The Defendant Christopher Young, Agent Maurice Hattier, and Agent Stephen Soli testified, and exhibits were received into evidence. (Doc. 24 at 1.) The substance of this testimony and evidence will be discussed in detail in the next section. The hearing was continued to October 5, 2016. (Doc. 24 at 1.) The Government was given ten days before the continuation of the hearing to advise the Defendant of any additional witnesses it intended to call other than Forensic Examiner Scott Downie. (Doc. 24 at 2.) Both parties agreed that additional briefing was necessary and that a transcript would be helpful for preparing the briefs. (Mot. Hr'g Tr., 247-48, Sept. 15, 2016, Doc. 49.) The Court ordered that, thirty days after the transcript was filed into the record, each party would submit simultaneously additional briefing on the issues, and then each party would have seven days thereafter to respond to the other's main submission. (Id.) Additionally, the Government proffered Exhibits 8-A and 10. (Doc. 24 at 2.) The Court allowed the Government seven days to file a motion to admit this evidence for the next hearing. (Doc. 24 at 2.) The Government also allowed the Defendant an opportunity to oppose the motion. (Doc. 24 at 2.)

         On September 22, 2016, the Government filed a Motion in Limine to Admit Certain Evidence in Opposition to Defendant's Motion to Dismiss for Selective and Vindictive Prosecution. (Doc. 26.) The Government sought to introduce written communications between defense counsel and government counsel, voicemail messages of defense counsel to government counsel, and an affidavit from Corey R. Amundson. (Doc. 26 at 1.) Additionally, in conjunction with this motion, on the following day, the Government filed a Motion for Leave of Court to File Compact Disc Containing Audio Recordings Into the Record. (Doc. 27 at 1-2.) On September 26, 2016, the Court granted the Government's motion for leave. (Doc. 28.) Also on September 26, 2016, the Defendant filed an opposition to the Government's motion in limine. (Doc. 29.)

         On October 5, 2016, the second evidentiary hearing was held. (Doc. 37.) The Government's motion in limine was granted, and certain exhibits submitted by the Government were admitted. (Doc. 37 at 1.) Forensic Examiner Scott Downie also testified. (Doc. 37.) The Court gave the parties thirty days to file simultaneous briefs from the filing of the transcripts and then fourteen days thereafter to respond to one another. (Mot. Hr'g Tr., 98-99, Oct. 5, 2016, Doc. 36.) Lastly, the Court encouraged the parties to address certain cases-specifically United States v. Kent, 649 F.3d 906 (9th Cir. 2011); United States v. Williams, 47 F.3d 658 (4th Cir. 1995); United States v. Oliver, 787 F.2d 124 (3d Cir. 1986); and United States v. Long, 823 F.2d 1209 (7th Cir. 1987)-involving “the relationship between vindictiveness and a Defendant's refusal to cooperate.” (Doc. 37 at 1-2.)

         On October 17, 2016, the transcript from the October 5, 2016, hearing was filed into the record. (Doc. 36.) The transcript from the September 15, 2016, hearing had been previously filed into the record.

         On November 10, 2016, the Government filed its Post-Hearing Brief. (Doc. 39.) On November 16, 2016, the Defendant filed his Post-Hearing Memorandum. (Doc. 40.) On November 17, 2016, the Government filed a motion to strike the Defendant's Post-Hearing Memorandum (Doc. 41) as being in excess of the page limit allowed by the local rule, which this Court denied on the same day. (Doc. 42.)

         To resolve a question submitted by one of the parties and to eliminate any further issues surrounding the page limit, on November 18, 2016, the Court then issued a notice to counsel allowing both parties until November 21, 2016, to amend and/or supplement their Post-Hearing Briefs, with such amendment and/or supplement not to exceed twenty pages. (Doc. 43.) Replies were limited to ten pages and were due on or before December 5, 2016. (Doc. 43.) Oral argument was set for January 6, 2017. (Doc. 43.)

         On December 5, 2016, Defendant submitted his reply brief. (Doc. 45.) On that day, the Government submitted a motion for leave to exceed the page limit with its reply (Doc. 44), which this Court granted. (Doc 46.) The Government's reply was filed into the record the next day. (Doc. 47.)

         Oral argument was heard on January 6, 2016. (Doc. 48.) At oral argument, both parties reiterated points made in their briefing.

         In addition and most significantly, counsel for the Defendant argued that, on a “common sense level, ” the Defendant should not have been prosecuted for these crimes. The Defendant asserted that, on this level, it is clear that others having engaged in similar conduct would never have been charged and that he was only prosecuted because he refused to cooperate in a public corruption investigation.

         Counsel for the Government responded that, when Congress enacted the criminal statutes at issue, it did not require that the Defendant be a pedophile or have a prurient interest while distributing the video; Congress could have put a scienter requirement in the law, but it did not. AUSA Cam Le also argued that it is the U.S. Attorney's Office and the Department of Justice that enforces the law, and it is part of its discretion to decide whom to prosecute and under what circumstances it would be warranted. The Government said that it does not matter if there are 1, 000 videos or images of child pornography or two or three; if the facts warrant it, the Government can, in its discretion, pursue those charges, and that is what it did.

         The Court advised the parties that it would take the matter under further advisement. The Court further stated that a ruling would be issued within thirty days.

         III. Evidence in the Record

         A. Individuals Relevant to this Motion

          Defendant Christopher Young is a lawyer practicing in the area of alcoholic beverage control law. (Mot. Hr'g Tr., 5-6, Sept. 15, 2016, Doc. 49.) Defendant has been an attorney for about twenty years, though he has no criminal justice experience. (Id. at 44.)

         Defendant testified that, until May of 2016, he was a lobbyist, but, when he got indicted, he “terminated [his] lobbying business and registration because [he] was concerned about [his] clients. And [he] wanted to make sure [he] didn't put them in an uncomfortable situation.” (Id. at 6.) Shantel Wempren is a lawyer with whom Young had a business relationship. (Id.) They shared clients and office space before terminating their business relationship due to a disagreement, as discussed below. (Id.)

         Agent Mo Hattier testified that he has been an FBI agent for close to twenty years and that, for his whole career, he has handled white collar matters including “financial, fraud, bankruptcy fraud, ” and “[fifteen], [twenty] plus” public corruption cases. (Id. at 56.) However, Agent Hatter is not a child pornography investigator; this is the only child pornography case in which he has been involved. (Id. at 56-57.) He has not received specialized training in child pornography cases. (Id. at 58.)

         Agent Stephen Soli has been with the FBI for twelve years. (Id. at 124.) He has worked all kinds of criminal and national security cases in that time. (Id. at 124-25.) He has handled child pornography cases for seven or eight years. (Id. at 125.) He underwent formalized, specialized training in the form of an annual safeguard certification done once a year, which is more or less a psychological assessment. (Id.) He also did an online covert employee certification. (Id.) Agent Soli works in “a division that's a program managed out of headquarters under the criminal division . . . the Crimes Against Children Section, ” and he serves that program for the Baton Rouge area. (Id. at 125-126.) He is the only agent right now who serves that program in this area. (Id. at 126.)

         Agent Soli has worked “maybe” fifteen cases during the past seven or eight years, and he's been the case agent in those cases. (Id.) Soli explained that being a case agent means that “the case is assigned to [him], so [he is] responsible for the management of the file and the administrative responsibilities that come with it and to interact with the United States Attorney's office or the local law enforcement authorities on it.” (Id.) Being a case agent also means being tasked with investigating, which includes interviews, evidence collection, and research. (Id. at 127.)

         Agent Soli testified that Agent Hattier has not participated in any of Soli's child pornography cases in which Soli was the lead agent, but Hattier did participate in the investigation of the Defendant. (Id.) Soli has worked public corruption cases and has worked them with Agent Hattier. (Id. at 129.)

         Scott Downie is a Computer Forensic Examiner for the FBI. (Mot. Hr'g Tr., 20, Oct. 5, 2016, Doc. 36.) He has been with the FBI for fourteen years. (Id.) His office is located in New Orleans, and he is “charged with preserving, collecting and analyzing digital evidence.” (Id.) He holds a degree in computer engineering from LSU. (Id. at 20-21.) When he joined the FBI in 2002, he was originally a “help desk person, ” or “I.T. Specialist” which “was just a general catchall for if it had to do with a computer we would go help them out.” (Id. at 21, 23-24.) After about six months, he joined the group that does computer forensics within the FBI, which is called CART-Computer Analysis Response Team. (Id. at 24.) This required specialized training, including 240 hours of classroom training in which he was taught to identify digital evidence, how to handle digital evidence, how to extract and collect it, how to give expert testimony, and how to draw conclusions from evidence. (Id. at 24-25.) It also required a mentorship under a certified examiner for about a year and a certification process that included an exam and a mock court case. (Id. at 25-26.) Downie has “touched about all the types of cases the FBI handles, ” including child pornography, which he spent about 40% of his time doing while in the New Orleans FBI Office and about 60% in the Florida FBI office. (Id. at 26-27.)

         Colonel Walt Green is the U.S. Attorney for the U.S. Attorney's Office for the Middle District of Louisiana.

         Corey R. Amundson is the First Assistant U.S. Attorney and Chief of the Criminal Division for the U.S. Attorney's Office for the Middle District of Louisiana. (Gov't Ex. 10.) From 2003 to 2008, he served as the primary child pornography prosecutor in his office and served as a faculty member in the “Advanced Child Exploitation” course for federal prosecutors at the DOJ's National Advocacy Center and at the DOJ's Project Safe Childhood National Conference for federal, state, and local prosecutors and investigators. (Id.)

         Cam Le and Rene Salomon are the AUSAs in this case. The Defendant's attorneys are William Gibbens, Kyle Schonekas, Marci Blaize, and Thomas Taylor Townsend.

         B. July 31, 2015-Initial Complaint

         On July 31, 2015, at 10:48 a.m., Col. Walt Green emailed Corey Amundson and Greg Fee of the FBI. (Mot. Hr'g Tr., 225-27, Sept. 15, 2016, Doc. 49; Gov't Ex. 8D.) In the email, Col. Green said that Jill Craft (a local attorney) had called to report that a female attorney she spoke with wanted to report an incident. (Mot. Hr'g Tr., 225-27, Sept. 15, 2016, Doc. 49; Gov't Ex. 8D.) The email stated:

Basically, a local lobbyist sent this [attorney] a bestiality video that appears to have a juvenile in the video as well. He has been sexually harassing her and this was part of the harassment. Please let us know who could join us at our office next week to debrief her and view her evidence. She would like to come to my office and I said it was okay. The [attorney's] name is Shantel Wempren.

(Mot. Hr'g Tr., 227, Sept. 15, 2016, Doc. 49; Gov't Ex. 8D at 2.)

         Greg Fee responded on the same day at 11:05 a.m. that he had “referred this to Steve Soli and Charlie. Steve is our resident child porn expert.” (Gov't Ex. 8D at 2.)

         At 11:09 a.m., the U.S. Attorney responded, “Perfect. We will reach out to Steve.” (Id.)

         C. August 3, 2015-Arranging the Meeting with Ms. Wempren

         In the same email chain, on August 3, 2015, at 1:21 p.m., Mr. Amundson emailed Steve Soli and AUSA Cam Le stating in part:

Steven and Cam,
Please see the below. We would like to set up a meeting with Ms. Wempren at the USAO so that you two could interview her. Walt and I would like to meet with her briefly before your interview. Steve, would you please reach out to Ms. Wempren to arrange this?
Corey

(Gov't Ex. 8D at 1.) Steve responded to both Mr. Amundson and AUSA Cam Le, “All, I have arranged to meet Wempren at your office at 10am tomorrow.” (Id.)

         These emails are mostly consistent with Agent Soli's testimony. Soli testified that he began his investigation into the Defendant in August of 2015. (Mot. Hr'g Tr., 127, Sept. 15, 2016, Doc. 49.) He was contacted by the U.S. Attorney's Office, which asked him to come to their office and document a complaint from an individual. (Id. at 127-29.)

         Specifically, Soli testified that he was contacted by Cam Le and advised that this was a case regarding a child pornography complaint. (Id. at 129.) Le contacted Soli because it involved child pornography. (Id. at 128.)

         D. August 4, 2015-The Government Meets With Ms. Wempren for the First Time

         Agent Soli first spoke to Ms. Wempren, on August 4, 2015, at the U.S. Attorney's Office in Baton Rouge. (Id. at 128-30.) Soli stated that he was not sure if he knew the Defendant's name until he got to the meeting; he did not recall if AUSA Cam Le put that in an e-mail to him. (Id. at 130.) To his recollection, he had no idea what the subject of his conversation with Ms Wempren would be until he sat down with her. (Id.)

         Agent Soli, AUSA Cam Le, and Ms. Wempren were the only three at the August 4, 2015, meeting. (Id. at 131.) Agent Hattier was not present. (Id.) Soli was included in the meeting because it was a child pornography investigation. (Id.) He was taking the initial complaint. (Id.)

         Agent Soli testified that Wempren reported the following to him:

That she was either an associate or partner . . . working with or for Mr. Young and that he had sent her this video, which she considered child pornography. She was concerned about having it, not reporting it. She described it, then she showed it to me. I agreed that it . . . in all likelihood, was child pornography and would warrant more investigation.

(Id. at 131-32.) As Soli recalled, Wempren described how she had worked for the Defendant when she was younger, how he had offered her “another employment opportunity recently, ” which she accepted, and how they had “some history going back to like 2008 or something like that.” (Id. at 132.) She made no complaints or accusations about the Defendant being involved in public corruption. (Id. at 132-33.) Soli did not know if Wempren mentioned that the Defendant was involved in politics or being a lobbyist. (Id. at 132.)

         Agent Soli also stated that he would have had a conversation with superiors to get the authorization for Wempren to consensually record a conversation with the Defendant. (Id. at 137.) Thereafter, Soli told Wempren that, if she was comfortable, she should reach out to the Defendant, arrange a meeting, and “discuss the receipt of this child pornography video with him.” (Id. at 138-39.) Soli also explained to her how to use the recording equipment and their protocol for doing it, and she agreed to do so. (Id.)

         Based on his interview with Wempren at the U.S. Attorney's Office, Soli said he requested an investigative file be opened and assigned to him. (Id. at 127-28.) Thereafter, Soli's supervisor approved the request. (Id.)

         Soli also prepared a memorandum dated August 6, 2015, describing his and Cam Le's interview with Ms. Wempren on August 4, 2015. (Def. Ex. 9.) That document provided in relevant part:

On July 23, 2015 at 11:33 pm, Wempren was on the couch with her girlfriend, Khristina Gant, when Wempren's phone indicated a message had been received. Wempren reviewed the message and determined a video had been sent to her and a text message containing the words, "Costa Rica". Wempren recognized the message to be from Chris Young's telephone ([phone number redacted]). Wempren knew Young to frequent Costa Rica as he is one third owner of a hotel there. Wempren played the video and observed it was footage of a young male performing a sexual act on a donkey. Wempren responded, "WTF", to which Young (or the user of his phone) responded, "Just some video from my last trip to CR."
Gant observed the contents of the video as well. Wempren was concerned about the video and responded with disapproval in a text message.
On July 31, 2015 Wempren notified Young she was resigning. Wempren did not discuss the video with Young or give him indication it was the reason for her resignation. . .
Note: SA Stephen J. Soli, Jr[.] and AUSA Cam Le reviewed the described video on Wempren's phone and agreed it was child pornography.

(Def. Ex. 9 at 1-2.)

         Agent Soli also testified that, on August 4, 2015, Agent Hattier ran a rap sheet of the Defendant. (Mot. Hr'g Tr., 133-34, Sept. 15, 2016, Doc. 49; Def. Ex. 8.) Soli did not believe he asked Agent Hattier to run the rap sheet, and Soli did not know why Hattier ran the rap sheet. ((Mot. Hr'g Tr., 134-35, Sept. 15, 2016, Doc. 49.)

         Agent Hattier testified that Agent Soli told him that Ms. Wempren had come in and made a complaint about the Defendant. (Id. at 62.) Agent Hattier said Soli was informed by AUSA Cam Le that the Defendant had been somebody that had been on Hattier's radar. (Id.)

         Agent Hattier testified that the Defendant was “definitely of interest to” Hattier given his prior case, even though Ms. Wempren had not said anything about public corruption. (Id. at 64.)

         When asked why it was of interest to Hattier, he stated:

Well, to the extent that there was allegations that Mr. Young had committed criminal activity and, you know, at some point -- you've been a criminal defense attorney for many years -- you know at some point, an individual in that position may want to attempt to help themselves out by coming forward and providing information. That was my area of interest.

(Id.)

         Forensic Examiner Downie testified that, on August 4, he was contacted by his supervisor and told that he would go to Baton Rouge the next day to help with the collection of Defendant's cell phone. (Mot. Hr'g Tr., 27-28, Oct. 5, 2016, Doc. 36.) He was brought in because there was potentially privileged information on the device, and it is customary to bring in someone from New Orleans in that situation so that there is not someone on the prosecution team handling the evidence. (Id. at 28.)

         E. August 5, 2015-Galatoire's and the FBI Office

         1. Defendant's Lunch with Wempren

         Defendant testified that, on August 5, 2015, he set up a lunch with Wempren. (Mot. Hr'g Tr., 6, Sept. 15, 2016, Doc. 49.) They “had had a disagreement” and had “decided to terminate [their] business relationship.” (Id.) Defendant realized that they “had a bunch of outstanding client matters, ” so he “reached out to her” and asked if they could get together to discuss the issues. (Id.) Wempren suggested they meet at Galatoire's Restaurant in Baton Rouge, and they did so. (Id. at 7.)

         At the meeting, they discussed business, but she also raised the subject of the video Defendant had sent her. (Id.) Wempren characterized the video as child pornography, and Defendant responded, “That's not child pornography. . . . You're crazy. You know me better than that.” (Id. at 7, 35.) Defendant acknowledged at the hearing that the video was of a young man and a donkey. (Id. at 7, 35.) They discussed the video for about ten minutes and then moved on to pending business for thirty-five to forty minutes. (Id. at 7-8.)

         2. Defendant's Initial Encounter and Interview with the FBI Agents

         Defendant testified that, when he was finished, he put down his credit card and went outside to smoke a cigarette. (Id. at 8.) He sat down on a bench near the entrance, and he began reviewing text messages and e-mails. (Id.) According to the Defendant, as he was doing this with his head down, FBI Agent David Clarke reached down and took his phone. (Id.) Clarke then introduced himself. (Id.) Defendant stood up and asked to see some identification, and, as he did so, he saw Agent Soli approaching. (Id. at 8-9.)

         The agents told Defendant that he was being investigated for the possession, distribution, and production of child pornography. (Id. at 9.) Defendant testified that it was about the video he had sent to Wempren. (Id.)

         The agents asked that they walk back to Defendant's car and then if they could sit in it. (Id.) Defendant agreed. (Id.) Agent Clark asked to search his car for guns or weapons, and Defendant said, “No problem.” (Mot. Hr'g Tr., 9-10, Sept. 15, 2016, Doc. 49.)

         After getting in the car, the agents asked Defendant about the video. (Id. at 10.) Defendant described the video to them as a “crude joke.” (Id.) Defendant testified that he did not believe it was child pornography, and “to this day, I do not.” (Id.) The agents asked if he sent the video to anyone; at the time, he recalled about eight to ten people, but the Defendant said at the hearing he thought it was “a little more than that, maybe [nineteen] people.” (Id. at 10.) Defendant also admitted at the hearing that he had seen the Indictment in this case and had received discovery, and he did not disagree with the Government's assessment of how many times he had sent the videos and to whom they had been sent. (Id. at 37.)

         Defendant also told the agents that he had another video someone had sent him a couple of years before which was similar to the donkey video sent to Ms. Wempren. (Id. at 10-11.) The first video was from 2013, and the second (sent to Ms. Wempren) was received in July 2015. (Id. at 11.) The agents had not known about the 2013 video before Defendant volunteered the information to them. (Id.)

         Defendant told the agents he believed he received the 2015 video from a friend in Costa Rica named Eduardo Gomez. (Id. at 11-12.) Defendant gave the agents Gomez's name and telephone number. (Id. at 12.) Defendant also told the agents he was not sure about the second (2013) video but that he believed he also received it from Gomez. (Id. at 12, 37-38.)[1]

         When he met with the agents, Defendant told them that he had no videos similar to the two donkey videos on his phone; “I did not, nor have I ever.” (Id. at 15.) Defendant testified that he was asked if he had additional similar videos or photographs on his other devices, and he told them no. (Id. at 38.) Defendant further testified that he offered to give his other devices to the agents to search, but he made no attempt to hand over those additional devices because “[t]hey didn't ask for them.” (Id. at 38-39.)

         Defendant was given a receipt for his phone in the parking lot at Galatoire's. (Id. at 15- 16.) Agent Soli filled out the form (which was like a carbon copy) and ripped off a copy for the Defendant. (Id. at 16; Def. Ex. 1.) Defendant indicated to Agent Soli that “that is my business phone, that I have no other phone, no other cellular phone, and I'm very mobile” and that Defendant would get a new phone and have the old phone disconnected. (Mot. Hr'g Tr., 16-17, Sept. 15, 2016, Doc. 49.) Defendant told the agents that the phone was his livelihood and that he needed the phone for work. (Id. at 39.) Defendant testified, “I thought I was very cooperative because I had nothing to hide.” (Id.)

         Defendant acknowledged on cross-examination that he was never placed in handcuffs, that he was free to go after his short conversation with the agents, that the agents were professional toward him, that they never yelled at or threatened him in any way, and that they never pointed a weapon at him. (Id. at 35-36.) Defendant also stated that the conversation with Agents Soli and Clarke inside his car at the Galatoire's parking lot lasted “maybe [ten], [fifteen] minutes.” (Id. at 39.)

         Agent Soli also testified about the meeting at Galatoire's. Agent Soli decided to use a recorded lunch as “investigative strategy” because he thought it was “more likely to be kind of an honest conversation about what happened and who had access to the phone and who might have done it with this type of conversation as opposed to a law enforcement interview.” (Id. at 140.) Soli had previously determined that the material came from the Defendant's phone, but he could not be certain who hit send. (Id. at 141.)

         Soli stated that, at Galatoire's, he, Special Agent Clarke, Special Agent Robert King, and Scott Downing provided surveillance, which was required in these sorts of operations. (Id. at 139.) Agent Soli said that Agent Hattier was not at Galatoire's and that Soli did not remember where Hattier was at that time. (Id. at 141-42.)

         Agent Soli testified that he instructed Wempren to determine if the Defendant “was in possession of the phone she knew to be his that may have sent . . . the child pornography material.” (Id. at 140.) Soli wanted her “to discuss her receipt of it and record his comments, reactions.” (Id.) Agent Soli could not listen to Wempren's conversation with the Defendant while it was taking place; it was recorded. (Id. at 139.) Soli later stated that Ms. Wempren either called or texted him as an indication that Defendant was there with the subject phone. (Id. at 217-18.)

         Agent Soli denied seizing the phone from the Defendant. (Id. at 142.) But Soli did identify the receipt of property that was issued to the Defendant on August 5 that noted Soli seized the phone, and Soli stated that he filled this receipt out during the interview with the Defendant in the Galatoire's parking lot. (Mot. Hr'g Tr., 143, Sept. 15, 2016, Doc. 49; Def. Ex. 1.) The form was completed in triplicate, with one copy for the Defendant and the original for the file. (Mot. Hr'g Tr., 143-44, Sept. 15, 2016, Doc. 49.)

         Agent Soli stated that, during the interview, the Defendant “recognized [Soli's] description of the video and said that [Defendant] had received it at some point. [Soli] believe[d] [Defendant] had said he received another similar video and had then sent those out to other individuals.” (Id. at 144.) The Defendant was “pretty cooperative with [Soli] during this time.” (Id. at 144-45.) Soli described the interview as lasting fifteen or twenty minutes; he did not “recall it to be a very long interview.” (Id. at 145.)

         Agent Soli testified that the Defendant told him who he got the video from (a cabdriver in Costa Rica), the cabdriver's name, and his telephone number. (Id. at 164-65.) Agent Soli stated that he did not recall specifically sending anyone to the Defendant's office during the Galatoire's lunch, but that is something that they may have done; were they to obtain a warrant, that is what they'd want to know. (Id. at 182-83.)

         Scott Downie testified that, when he met Agents Soli, Clarke, and King, they explained to Downie that they wanted an examiner to handle the phone because it was likely an iPhone, and iPhones pose certain problems in collecting evidence. (Mot. Hr'g Tr., 28-29, Oct. 5, 2016, Doc. 36.) They did not have a warrant, and they could not do an actual exam or analysis of the phone on site. (Id. at 29.) Downie's role was to keep the phone from being locked and keep it in the unencrypted state so that, if they obtained legal authority, they could look at it and then return it. (Id. at 29-30.)

         According to Downie, they arrived at Galatoire's and parked about sixty or seventy-five feet away from the entrance to the restaurant. (Id. at 30-31.) They waited for some time, and, at some point, the Defendant arrived. (Id. at 31.) Agents King and Clarke then went inside the restaurant. (Id.) Downie stayed in the car. (Id. at 30.) “After a little while, ” the Defendant came out, Agent Soli identified him, and then Agent Soli exited the vehicle and approached him. (Id. at 31.) Special Agent Clarke stuck out his hand to shake, and, when the Defendant went to shake it, Clarke took the phone and turned to walk away. (Id.) King took the phone straight to Downie. (Id.)

         Downie put the phone in airplane mode, which “seals it off from other communication . . . [and] basically seals that evidence off so that it's not changed in any way.” (Id. at 32.) After the phone was in airplane mode, Downie waited about thirty seconds and then swiped left and right to prevent the phone from locking. (Id. at 32-33.) He did this for about an hour and a half. (Id. at 33.) He did this because, at that point, they did not have the legal authority to go on Defendant's phone and look, but, if it locked, they would lose the evidence; this “preserve[d] the evidence in its current state.” (Id.)

         At some point during the trip from Galatoire's back to the FBI office, Downie was told the Defendant gave consent to search the phone and was given its passcode. (Id. at 33-34.) Downie then turned off the auto lock so that it would not lock and encrypt the contents of the phone. (Id. at 34.) He also pulled out relevant information from the phone, such as the make, model, and iCloud accounts to verify it was the Defendant's phone. (Id. at 34-35.) When he arrived at the FBI office in Baton Rouge, he took the phone to the CART lab and connected it to the device that would keep it powered on throughout the night. (Id. at 35.) He then left. (Id.) He did not look at the contents of the phone, either on the trip to the FBI office or when he arrived at the CART lab. (Id.)

         Agent Hattier testified that he was not at the Galatoire's lunch and was not involved in setting it up. (Mot. Hr'g Tr., 64, Sept. 15, 2016, Doc. 49.) He was surveilling the Defendant's “office location in the off chance that a search warrant was conducted there for the computers and such.” [sic] (Id. at 64-65.) Agent Hattier first said that Agent Soli or one of his team members asked him to go, but he then said “it was just understood that [he] would be involved” given his prior investigation in which the Defendant was prominent. (Id.)

         3. Defendant's Trip to the FBI Office and Agent Hattier's Alleged Inappropriate Comments

         According to the Defendant, as he was leaving Galatoire's, Agent Soli asked, “Do you have time to follow us back to our office, we have another agent from another division of our office that would like to speak with you.” (Mot. Hr'g Tr., 17, Sept. 15, 2016, Doc. 49.) Agent Soli did not identify who the agent was, what division he worked with, or why the agent wanted to talk to him. (Id.) Defendant, however, agreed to go. (Id.)

         Defendant stated that he followed the agents from Galatoire's to the FBI office. (Id. at 18.) Agents Soli and Clarke arrived at about the same time, and, after they punched in a code to unlock the door, they all walked into the foyer area of the office. (Id.) Defendant, Soli, and Clark did not go into the main office area though. (Id. at 18-19.)

         Defendant testified that, “After we entered that foyer area, about one, two, maybe three minutes later, another agent walked in from the outside.” (Id. at 19.) That agent was Mo Hattier, who was coming in from the parking lot into the foyer. (Id.)

         Defendant testified that Hattier introduced himself and said, “Hi, I'm Agent Mo Hattier. . . . I'm the head of the public corruption division for the FBI.” (Id. at 19.) Agents Soli and Clarke were around when this happened. (Id.) Defendant's brother John Young was running for Lieutenant Governor at the time, and, according to the Defendant, Hattier asked how Defendant's brother's campaign was going. (Id. at 19-20.)

         Defendant testified: “I know Agent Soli was holding my phone at the time, and [Hattier] said -- he gestured toward Agent Soli and said, ‘Whatever is on that phone doesn't have to become public if you cooperate with us in a public corruption investigation.' ” (Id. at 20.) Defendant said he replied, “I don't know anything about public corruption. There's nothing on my phone except the two videos I've already told these agents about.” (Id.) According to the Defendant, Agent Soli commented that, “ ‘This is your last chance. Tell us what's on this phone or you're going to be in big trouble.' ” (Id. at 20-21.) Defendant responded, “ ‘Like I told you before, there's nothing else on my phone.' ” (Id. at 21.) Defendant stated that the meeting in the foyer area of the FBI office lasted “five minutes, at the most.” (Id. at 40.)

         On the other hand, Agent Hattier testified that, at some point, he was informed that the search of the Defendant's office would not occur (Hattier thought this occurred while the other agents were still at the restaurant), and Hattier was “cut loose” and came back to the office. (Id. at 68.) Hattier did not know why a search of the office was not conducted. (Id. at 68-69.)

         Agent Hattier testified that he was not involved in the setup of the meeting at the FBI office. Hattier stated, “I think he was talking to Agent Soli, and Mr. Young had come in to, I don't know, sign a receipt or do something. And I was informed by Agent Soli that Mr. Young was coming in to the office. And when he arrived, I came out and introduced myself.” (Id. at 66.) Hattier thinks he had been told by Agent Soli that the Defendant was there. (Id.) Hattier said, “I think it was, you know, when I was informed that he was coming in, ‘Hey, if you're around, you want to come out and say hi, then I'll let you know when he gets here' sort of thing.” (Id.)

         Hattier did not remember why the Defendant went to the FBI office and said maybe it was to sign off a receipt form or something for his phone. (Id.) Agent Hattier said that seizure receipts are “sometimes, not always” done on site, but he would typically bring the seizure receipts with him. (Id. at 66-67.) Agent Hattier “really” did not know Defendant's purpose for coming into the office. (Id. at 67.) When asked if the purpose of the trip was to meet with Hattier, Agent Hattier stated, “I mean, I hadn't had any contact with him, so I certainly didn't tell him come in so we could meet in person.” (Id.) Agent Soli did not tell Hattier he was bringing Defendant to the office so Defendant could meet with Hattier; “Agent Soli just told me, ‘Hey, Mr. Young is coming in' -- for whatever reason, I can't remember -- ‘You know, if you're around when he gets here, I'll let you know and you can come out and introduce yourself.' ” (Id. at 68.)

         On cross examination by the Defendant, Hattier testified that he was trying to make small talk with the Defendant, so, in that context, he brought up the Defendant's brother's run for Lieutenant Governor. (Id. at 69.) When asked what he talked about, Hattier testified:

         “Introduced myself. Told him I was on the white collar squad. I may have even said that I worked public corruption and that at some point, if he was interested, I would be happy to sit down and talk to him.” (Id. at 69-70.) Though Agent Hattier did not remember the Defendant's exact words, he was left with the impression that the Defendant “was open to sitting down with us.” (Id. at 70.) Hattier described the interaction as “very short” and said it never progressed to the point of Defendant saying “yes or no, I have information that would be of interest to you.”

         (Id.) Hattier stated that Agent Soli was also present at the meeting. (Id. at 70-71.) Hattier specifically denied saying that “whatever is on that phone doesn't have to become public if you cooperate with us in a public corruption investigation.” (Id. at 71.)

         On direct examination by the Government, Hattier described the meeting as “very brief. Less than a couple of minutes, in [his] estimation.” (Id. at 103.) Hattier was shown the Defendant's affidavit, including his own alleged words, and Hattier said it was “absolutely not” a verbatim quote from him:

I didn't say it and, secondly, you know, I've been an agent for [twenty] years. I'm -- if I don't know anything, one thing I do know is that we're -- as agents, we're not in a position to make any kind of -- you know, this type of representation to a potential defendant. I had not had any discussions with you [AUSA Cam Le] relating to this case at this point. I simply was not in a position to make any kind of representation like this to [the Defendant].

(Id. at 103.) Hattier stated that the purpose of the meeting was to introduce himself and let the Defendant “know that we had an interest in sitting down and talking to him further.” (Id. at 104.) Hattier said that he was left with the impression that the Defendant was amendable to possibly talking to the FBI in the future because he said something to the effect of “I've been cooperative up to this point.” (Id. at 104.)

         On re-cross by the Defendant, Agent Hattier again emphatically denied telling the Defendant that what was on his phone did not have to become public if he cooperated:

Absolutely. I had zero conversation with him about what was on the phone, what could happen to him, what couldn't happen to him. I introduced myself. I told him I worked white collar matters, including public corruption, and that I had an interest in sitting down and talking to him at a future point. That was the extent of the conversation.

(Id. at 120.)

         After the meeting, Hattier was “most certain” that he would have told Agent Soli that, if the Defendant was amendable to sitting down and talking with the FBI, then he might be in a position to have information that would be of interest to us. (Id. at 71.) According to Hattier, Soli replied, “I'll let you know if it develops to that point or something like that.” (Id. at 72.)

         Agent Soli testified that he did not remember when he asked the Defendant to talk to Agent Hattier. (Id. at 146.) At the hearing, Soli said:

I just -- I might have asked him, you know, after the first interaction or I might have asked him when we went back and had the consent form signed or I might have asked him to talk to Mo Hattier when he collected his phone the next day. I can't remember when.

(Id.) Agent Soli said it was not his idea for the Defendant to talk to Agent Hattier at the field office; “I think just someone said I'd like to talk to him or Mo would like to talk to him or Mo asked.” (Id. at 147.) Agent Soli did not remember who told him that. (Id.) Soli later testified:

This is what I'm saying is I know that I invited him to come back to the field office and get his phone, okay? And I don't know if at the Galatoire's interactions, either one of them, I mentioned Mo Hattier or if I didn't mention it until he came and got his phone. But at one point over the afternoon of the 5th, say, and the 6th when he got his phone, I facilitated that introduction and I had known -- I had come to know Mo and I wanted to talk to him at some point in time.

(Id. at 149.) Soli could not remember when he mentioned that he would like the Defendant to come back to the field office to meet with Agent Hattier. (Id.) Soli may have said “ ‘It would be a good idea for you to talk to Mo, ' . . . but nothing more specific than that.” (Id. at 153-54.)

         Agent Soli testified as to the following about the meeting at the FBI office:

Well, what I recall about a meeting with Mo Hattier and [Defendant] is that they talked in the lobby or right there in the front of our office and, you know, introduced each other, talked for a little bit and basically agreed to, you know, get together and meet at some other time. That was all I knew of that . . . meeting or them meeting together.

(Id. at 147-48.) Soli thought Agent King was standing there at the meeting and that “it was a brief interaction.” (Id. at 148.) Soli thought that Agent Hattier and the Defendant “might have walked back to the conference room, ” but he did not know. (Id.) Agent Soli did not know if the words “public corruption” were said; he thought “it was more vague. You know, hey, I'd like to talk to you about some things I think would be of interest or you could help with or something, that type of language is what I recall.” (Id. at 149.) Agent Soli did not know the purpose of the meeting. (Id.) Agent Soli later stated that the conversation “had something to do with [child pornography] in that this was all part of this investigation and the phone and everything, but my understanding was Mo Hattier wanted to talk to him about public corruption investigations.” (Id. at 152.) Agent Soli didn't know if Agent Hattier “used that phrase at that meeting.” (Id.) Agent Soli did not recall Hattier saying he would like Defendant to cooperate in an investigation. (Id. at 153.) Specifically Agent Soli did not recall Agent Hattier saying, “Whatever is on that phone doesn't have to become public if you cooperate with us in a public corruption investigation.” (Id.) Agent Soli only remembered “this vague language, like, ‘Hey, man, you know, I'd like to get together with you and talk. I think there's things we need to talk about.' ” (Id.) Soli did not remember “it being that specific.” (Id.) Agent Soli also thought that the meeting between Hattier and the Defendant occurred the next day when the Defendant was at the FBI office to retrieve his phone.

         Agent Soli testified that he never heard Agent Hattier make the statements that were attributed to Hattier in the Defendant's affidavit (specifically, that “whatever is on that phone does not have to become public if you cooperate with us in a public corruption investigation”; that “we can make this go away if you cooperate”; and that “we can wire you up just like you see in the movies”). (Id. at 230-31.) Moreover, Agent Soli said he has never heard Agent Hattier say anything like this in any case he has worked with him over the last eight years. (Id. at 231.) Agent Soli said it is not something Soli would say either, “just knowing that I'm not authorized to say that.” (Id.)

         4. Defendant's Trip Back to Galatoire's

         Defendant testified that, around 3:30 or 4:00 p.m. on the day he went to the FBI office, he received a phone call from Agent Soli. (Id. at 21.) Soli said he had forgotten to give Defendant the consent to search form, [2] so the Defendant had to meet to execute it and receive a copy. (Id. at 21-22.) Defendant met Agent Soli at the Galatoire's parking lot and signed the consent to search form. (Id. at 22.) Defendant told Agent Soli that he was concerned about confidential client information, and Agent Soli told Defendant that he could write an exception on the form, which Defendant did. (Id.) Agent Soli took a picture of the form and emailed it to the Defendant. (Mot. Hr'g Tr., 22-23, Sept. 15, 2016, Doc. 49; Def. Ex. 2; Gov't Ex. 5.)

         Defendant considered this meeting a formality. (Mot. Hr'g Tr., 41, Sept. 15, 2016, Doc. 49.) He had already given the agents verbal consent to search his phone and had even given them his password to get into the phone. (Id.) This meeting lasted maybe five minutes. (Id.)

         Agent Soli provided similar testimony. Soli said that he had verbal consent from the Defendant to search the phone, and he took the phone back to the FBI office. (Id. at 145.) However, he realized that he had not gotten the Defendant to sign a consent to search form or perhaps did not have one with him; in any event, he had to go back and meet the Defendant again at Galatoire's and have him sign a consent form allowing for search of the phone. (Id.) Defendant signed the consent form at the second meeting in the Galatoire's parking lot. (Mot. Hr'g Tr., 146, Sept. 15, 2016, Doc. 49; Def. Ex. 2.)

         Agent Soli testified that he told the Defendant, “regarding extraction from his phone, only in the most general terms . . . I believe I explained to him . . . we'll just be collecting or looking at information that is related to child pornography investigation, not reviewing any type of communication documents with your clients.” (Mot. Hr'g Tr., 154-55, Sept. 15, 2016, Doc. 49.) Soli never stated that he would be looking at information on the phone relative to public corruption. (Id. at 155.)

         F. August 6, 2015

         1. Downie's Work on Defendant's iPhone-Extracting the Files and Removing the Videos

         Forensic Examiner Downie testified that, on the morning of August 6, Agent Clarke asked him to preserve the contents of the phone, to collect the information on it, and to make a copy of it. (Mot. Hr'g Tr., 35-37, Oct. 5, 2016, Doc. 36.) Downie “used a cellebrite, [which is] a physical device that's meant to copy information from a cell phone. [He] did a file system extraction so that it would just extract all the files in the user data section of the phone into -- onto a thumb drive.” (Id. at 35-36.) Downie explained, “The cellebrite device will go on the phone and extract all the files that exist in the user data section of the phone and copy them to a thumb drive so that [CART Examiners] can analyze them.” (Id. at 36.) Only the data files are copied, not the operating system. (Id.) The process took an hour or two. (Id. at 37.)

         Only CART examiners have access to the CART lab. (Id. at 36.) At that time, that would have included Forensic Examiner Downie, Special Agent Larry Jones, and Forensic Examiner and Trainee Aaron Skipper. (Id.)

         Downie explained that it is important to have an image copy rather than working off the actual device because “anything you do on a cell phone you're actually changing the evidence. So any time you open messages or open this or open that you're always changing it.” (Id. at 37.) This “minimize[s] the amount of changes and collect[s] the evidence at its pristine state[.]” (Id.)

         After he made the copy, Downie took the image copy and made a copy of it so that he would have a “master copy image” that would “go to evidence control.” (Id.) He would work off the copy of the copy. (Id.)

         After Downie made the copies, he spoke with Special Agent Soli and asked him to triage the evidence, which means to “find out kind of what we're dealing with”; that is, whether child pornography is present and, if so, how much and what is the nature of it? (Id. at 38-39.) His software takes all the files in messages, texts, and e-mails and puts them in “containers, ” and he would have containers for videos and graphics. (Id. at 39.) He then did a manual review of all the pictures and videos that were in those two containers. (Id. at 39-40.) He reviewed only those files because that is where the multimedia is stored; they were only looking for pictures and videos of child pornography. (Id. at 40.)

         Downie's review showed “two pictures of a young girl that were not sexual in nature and . . . two videos of -- that [he] believe[d] were possibly child pornography.” (Id.) Downie then extracted the videos from the images and brought them to Special Agent Downie so that he could review them and determine “whether or not that was child pornography and that it was something that they would actually carry forward with the prosecution.” (Id.) Soli determined the videos were “actually child pornography and so those were relevant to the investigation.” (Mot. Hr'g Tr., 40-41, Oct. 5, 2016, Doc. 36.)

         For the two pictures, Downie had to find the chat message to determine the context; here, the Defendant talked about being in love with the young girl, so Downie presented that to Soli, who said that, “given that it was possible child exploitation[, ] that was relevant to their investigation.” (Id. at 41.) Downie testified that everyone has pictures of relatives on their phone, so he has to determine the context in which the pictures were sent back and forth. (Id.) Here, the person Defendant was talking with mentioned that the girl could not be sixteen or fifteen, so that registered as something that possibly needed to be investigated. (Id. at 41-42.)

         Downie testified that Agent Soli had asked him if it was possible to return the phone that day. (Id. at 42.) Downie stated:

Special Agent Soli explained that the [Defendant's] business was run through that phone and that that phone was key to his business and that he did not have a backup of it, so if we took that phone that we would be basically taking his business from him. So he asked if it was a possibility that we could return that phone.”

         (Id.) That is also why the initial triage was done. (Id.) Downie testified:

Q: And what did you tell Special Agent Soli?
A: So I instructed him that, yes, given that it was so few, . . . there was two videos, there was multiple versions of the video with different names throughout the phone, but I could go in there and delete those videos and delete the message chains that involved those videos and most likely remove those videos from the phone so that we could -- he could return it.
Q: When you say, most likely, I sense some hesitation. Can you explain that?
A: Standard Bureau policy is that whenever we get a device that has contraband, that device is destroyed. And that guarantees that media will not be -- child porn will not be returned back out in the wild. Now destroyed doesn't necessarily mean physically destroyed. With an iPhone we can either factory reset it or wipe it or something so that we can give back that physical device without any content on it.
Q: And is that's -- why in this case did you guys not follow the typical policy of destroying the device or wiping the device?
A: Anytime we come across child pornography there's always other victims that aren't child pornography victims. For instance, when we seize the computer of a husband and we go to process that computer, even if he's sent and processed [and] goes to jail, the wife may call us and say, hey, can I get all of the pictures of my children because that's where we stored all the pictures of our children. And then we're forced to determine of [sic], well, by policy we're supposed to destroy all of that information to guarantee that nothing comes out, but we don't want to create another victim of a family that now has lost their entire series of pictures.
Businesses that have someone that's using a business computer and they have child porn on that computer. Do we go destroy that computer and erase all of the files for that business? We're always trying to minimize the ancillary effects of that investigation. And in this case with him having his business on the phone and people that require his legal services would be on that phone, if we destroy it then they become victims as well because they may lose information that they had.
So it was made -- the decision was made by Stephen Soli to go ahead and do our best to clean the information off of there, remove the videos, remove the chats that had those videos in them and then return the cell phone to him without any child pornography on it.
Q: So what did you do after your conversation with Special Agent Soli then?
A: So I went back to where I had the image with the software and everywhere where I found a video, go find that video in the chat log, find that chat on the phone and delete it and then go delete the video and then go to the next video, find it, find where it was used in a chat, go find that chat on the phone, delete it and go through all of the videos like that.

(Mot. Hr'g Tr., 42-44, Oct. 5, 2016, Doc. 36.)

         Downie then explained how there were multiple versions of the video on the phone: “as the person is using their phone, the phone is making multiple copies of that video. So you might have the same content, but it might have six or seven or eight different file names based on how it was used on the phone.” (Id. at 45.)

         When Downie went through to remove the child pornography videos from the phone, he did that physically on the device. (Id.) First, he would use his results to find a video of child pornography and find the chat stream where the video was mentioned. (Id. at 45-46.) Then, on the phone, he would find the chat stream, delete the entire chat between those people, and repeat the process for the next video and related chat. (Id.) So, every video that he found in his software that was identified by Agent Soli as child pornography, he would “go find that on the phone and delete that entire chat stream that dealt with that video.” (Id. at 46.) He deleted the whole chat stream rather than the video because there were about 250, 000 messages on the phone, and he was asked to return the phone that day; looking through each message would have been “very, very time consuming and the deletion of a chat stream provided a better opportunity that that message would not be undeleted or recovered, so I made the decision to delete the entire chat conversation where a video of child porn appeared.” (Id. at 46.) Downie relied on his software to read the video file, and then he found those versions of the video files that were read by the software. (Id. at 46-47.)

         Downie did not look at other data within the device, and he did not look at e-mails. (Mot. Hr'g Tr., 47, Oct. 5, 2016, Doc. 36.) No child pornography came from e-mails, so he did not open any. (Id.) He also did not delete the stream of messages with the young girl, because that was not contraband by law. (Id. at 47-48.) He did review that stream. (Id. at 48.)

         Downie also explained what a filter team is; it is when the FBI “collect[s] evidence that could possibly have attorney-client privileged information in it. We would take that evidence and send it through a filter team so that they would basically either remove out the privileged material or only extract the material that is not privileged.” (Id. at 48.) Here, Downie said he “serve[d] de facto as a filter forensic agent.” (Id. at 49.) Downie explained how he acted as a filter:

So in that process I looked through the pictures and the videos to determine that content of what was relevant, extract the conversations that were relevant and outside of that if I opened something that turned out to be a message that was attorney-client privileged information, I could then exclude that, make sure that it wasn't in those results and that I wouldn't corrupt the prosecution team by coming across that material.
So by taking those results and extracting out the things that were possibly relevant for his investigation, giving that to the case agent it excludes him from any material that could have been attorney-client privileged information.

(Id. at 59-60.)

         Downie shared with Agent Soli the videos themselves and the context of the pictures of the young girl. (Id. at 49.) Downie testified that he “extracted all of the conversations involving child porn[ography] and all of the conversations involving the pictures of [the young] girl . . . for . . . Soli to review.” (Id.) Downie further testified, “So what I did is any chat conversation where a video appeared, I extracted that entire conversation for him to review.” (Id.) So, if the Defendant sent the video in 2015 but there was a chat stream of three years, the entire conversation would be extracted. (Id. at 49-50.) Given the number of messages, it was beyond Downie's scope to “go back and pick out which ones in the conversation were relevant and which ones were not relevant.” (Id. at 50.) It was simpler to extract the entire conversation. (Id.)

         Downie explained that “context is really important” because it “usually gives intent” and relevance to the investigation. (Mot. Hr'g Tr., 50, Oct. 5, 2016, Doc. 36.)

         Downie admitted that he made a copy of the entire phone and everything on it except the operating system, despite the fact that the physical copy of the consent to search form excluded attorney-client privileged material. (Id. at 67.) Additionally, Downie acknowledged that there was no official filter team in place, though he said he “was designated as the one to extract only the information that was relevant to his investigation.” (Id. at 68.) Downie said his instructions were to make an image of the phone, and “[t]here is no tool that will let [him] filter attorney-client privileged upfront. There's no button on the tool that says only collect non-privileged information.” (Id. at 68; see also Id. at 87-88.) Downie continued: “the only way to extract and preserve information from that phone is to copy all of the data from the user section, that's the only option [he has]. It's either examine the phone or collect the information from it and leave the phone intact.” (Id. at 68-69.) Downie “chose to make an image of that phone, to preserve the contents of the phone as they were and then take that image and only extract the items that pertained to child pornography or child exploitation.” (Id. at 69)

         Downie stated that he did not review the entire extraction report. (Id.) He segregated out the items pertaining to child pornography or exploitation and provided a copy to Special Agent Soli. (Id.) The copy was redacted with the multimedia files deleted in case Soli needed to provide an attorney copy. (Id.) Downie was aware that this extraction report went to the attorneys for the government. (Id. at 69-70.) Downie did not see any attorney-client privileged information in the conversations he reviewed, but he did not review the entire stack. (Id. at 70.) He reviewed the material around the child porn and the pictures of the young girl. (Id. at 70-71.)

         But Downie extracted the entire conversation between Jessica Starns (attorney with the ATC) and the Defendant, which ranged from April 9, 2013, through August 5, 2015. (Id. at 71- 72.) That constituted 106 pages of the extraction report. (Id. at 73.) Yet Downie only reviewed the messages surrounding the child porn, so he could not say he conducted any type of privilege review of those 106 pages. (Id. at 73-74.)

         Downie did not know if any of the texts he downloaded were clients of the Defendant. (Id. at 74.) No one sat down with Downie and told him what law the Defendant practiced so that he could make a determination if he came across a privileged communication. (Id.)

         Downie further testified that it was not normal protocol to return the phone to the Defendant; normally, he would keep the actual phone as evidence and not give it back where it could be destroyed or deleted. (Id. at 75.) When asked if Agent Soli told him that third parties could be damaged, Downie stated:

[Agent Soli] explained that [Defendant's] business revolved around that phone and that his client's files were on that phone and that he did not have a backup of that phone. So if we were to take the phone, seize it and later subsequently destroy it, even seizing [a] portion of it, he would not have the information that he needed for his clients. Implying that that would cause problems with his business.
So that business itself is an entity. Just like people are entities, we view businesses as entities as well, they have rights as well. So in order to try to sustain the business, while yet gathering the information that we needed, collect the information we needed, trying to balance that of not disrupting a business, not hurting a third party, to actually give the phone back after it was cleaned up.

(Id. at 76.)

         The Defendant's attorney introduced the two CART extraction requests. (Mot. Hr'g Tr., 77-79, Oct. 5, 2016, Doc. 36; Def. Exs. 19 & 20.) The first request was to preserve evidence on the phone, and the second was to analyze the phone and extract the contents. (Mot. Hr'g Tr., 77- 79, Oct. 5, 2016, Doc. 36.) The second form says “consent” for legal authority, but there's no exception for attorney-client privilege because it is a drop-down box form. (Id. at 79.) The form stated, “Extract identified child pornography video and related messages/contacts, ” and Downie interpreted this as “the message conversation.” (Mot. Hr'g Tr., 79, Oct. 5, 2016, Doc. 36; Def. Ex. 20.)

         Downie testified, “my role was to identify the child porn and extract the conversations where the transmission of that child porn occurred and to identify child exploitation and extract the conversations and context of where that child exploitation might have occurred.” (Id. at 85.) Downie was asked if “it was up to the case agent to figure out which of the actual conversations were actually relevant to the child pornography?”, and he responded, “Yes, sir.” (Id.)

         Downie also testified that, other than the role he described, he has not spoken to any of the agents in this case about this matter. (Id. at 87.) He did not provide any analysis of what was distributed and when it was distributed. (Id.)

         2. Defendant Gets His Phone Back, and Agent Soli Tells the Defendant That Defendant Is Not a Child Pornographer

          Agent Soli testified that, when “whatever Forensic Examiner Downie had done was complete, and [Soli] was ready to return the phone to [the Defendant][, ] [Soli] reached out to [AUSA] Cam Le and updated her on what was going on.” (Mot. Hr'g Tr., 229, Sept. 15, 2016, Doc. 49.) Soli testified that Downie had told him (something like) Downie did not need the phone anymore because Soli “had been telling [Downie], you know, do it as quickly as possible and let [Soli] know when [he] can get Mr. Young his phone back.” (Id.) Downie had used the term “extraction, the exam.” (Id.)

         Agent Soli conferred with AUSA Cam Le, and, on August 6, 2015, at 8:46 a.m., she wrote to Steve ...


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