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United States v. Waguespack

United States District Court, M.D. Louisiana

March 20, 2017

UNITED STATES OF AMERICA
v.
CHRISTOPHER G. WAGUESPACK

          RULING AND ORDER

          JOHN W. deGRAVELLES JUDGE UNITED STATES DISTRICT COURT

         This matter comes before the Court on the Motion to Suppress (Doc. 39) and Defendant's Motion for a Pre-Trial Copy of the Transcript of the Grand Jury Proceeding (Doc. 40) filed by Defendant Christopher G. Waguespack.[1] The Government opposes both motions. (Docs. 43- 44.) An evidentiary hearing and oral argument took place on December 13, 2016. (Doc. 38.) Post-hearing briefs were filed by each party. (Docs. 54-55, 58-59.) Having carefully considered the law, the facts in the record, and the arguments and submissions of the parties, both motions are denied.

         I. Relevant Factual Background

         A. Indictment and Superseding Indictment

         On June 15, 2016, the Defendant was indicted on three counts. (Doc. 1.) The first count charged that, on May 5, 2015, the Defendant knowingly distributed child pornography. (Id. at 1.) The second count charged that, on June 13, 2015, he knowingly distributed child pornography. (Id. at 1.) And the third count charged that, on September 24, 2015, the Defendant knowingly possessed child pornography. (Id. at 2.)

         On November 16, 2016 (after the instant motions were submitted), a Superseding Indictment was filed. (Doc. 32.) The second and third counts are the same. (Id. at 1-2.) The first count still charges the Defendant with knowingly distributing child pornography, but it alleges that he did so “[b]etween on or about March 29, 2015, and on or about March 30, 2015.” (Id. at 1.)

         B. Investigation

         The instant motions center on the conduct of Investigator Louis Ratcliff, who was the lead investigator with the Louisiana Attorney General's Office in the investigation that led to this case. In sum, the motions involve discrepancies between Ratcliff's documentation and his testimony concerning the date on which Ratcliff used BitTorrent to download child pornography from someone using an IP address XXX.XX.XXX.97.[2]

         Specifically, in reports such as his May 5, 2015, Investigative Memorandum (Def. Ex. 1) and others (both typed and handwritten), Ratcliff stated that this download occurred on May 5, 2015. (Mot. Hr'g Tr., 20-22, Dec. 13, 2016, Doc. 49.) But, at the December 13, 2016, hearing, Ratcliff testified that this download happened in March 2015. (Id. at 20, 36.) Similarly, on May 6, 2015, Ratcliff prepared and issued a subpoena to Cox Communications for the above IP Address, and he did so for the time period of 3/29/2016 at 8:18:48 PM UTC and 3/30/2012 at 12:31:17 AM UTC. (Id. at 23-24; Def. Exs. 2-3.)

         Ratcliff's explanation for the conflicting dates (repeated several times at the hearing) was that May 5, 2015, was the day he opened the case and had the file number assigned to it. (Mot. Hr'g Tr., 21, 23, 47, 58, 59, Dec. 13, 2016, Doc. 49.) Ratcliff described the use of the wrong date as “an error.” (Id. at 56.) He also explained that his operation of searching for child pornography using BitTorrent had been continuous since December 2014. (Id. at 36, 50-51.)

         In any event, on May 28, 2015, Cox Communications responded to the subpoena by saying that the name associated with the above IP address on those dates was Larry Waguespack and that he was located at a particular physical address in Baton Rouge. (Def. Ex. 5.)[3]

         Later, on June 13, 2015, Ratcliff was investigating on BitTorrent and again downloaded child pornography, this time from a user with the IP address XX.XXX.XXX.19. (Def. Ex. 6.) On August 6, 2016, Ratcliff issued a subpoena to Cox Communications (Def. Ex. 7), and, about two weeks later, Cox replied that the IP address for that date and time was associated with Waguespack at the same physical address as the one in the response to the first subpoena. (Mot. Hr'g Tr., 28-29, Dec. 13, 2016, Doc. 49; Def. Ex. 8.)

         C. The Affidavit of Probable Cause

         When Ratcliff concluded that the two IP addresses had the same physical address associated with them, he presented the information in an affidavit and search warrant to Judge Bonnie Jackson of the 19th Judicial District Court. (Mot. Hr'g Tr., 31-32, Dec. 13, 2016, Doc. 49.) Ratcliff prepared the affidavit/search warrant application in its entirety. (Id. at 32.)

         The affidavit states:

On May 5, 2015, Investigator Louis Ratcliff, with the Louisiana Attorney General's Office Cyber Crime Unit was conducting undercover operations involving Pornography Involving Juveniles, as defined in La. R.S. 14:81.1. During this undercover operation, using "Bit Torrent" as the client for peer to peer file sharing, Investigator Louis Ratcliff was able to obtain multiple single sourced downloads from the user using IP Address "[XXX.XX.XXX].97.”

(Def. Ex. 11 (underline added).)

         Ratcliff testified that he did not connect to Defendant's computer on May 5, 2015; again, May 5 is the day he opened up the file on the investigation. (Mot. Hr'g Tr., 35-36, Dec. 13, 2016, Doc. 49.) In reality, Ratcliff made the connection in March 2015, even though the affidavit does not say that. (Id.)

         Continuing with the affidavit, the document then describes the child pornography downloaded. (Def. Ex. 11.) Thereafter, the affidavit continues:

On June 13, 2015, Investigator Louis Ratcliff, with the Louisiana Attorney General's Office Cyber Crime Unit was conducting undercover operations involving Pornography Involving Juveniles, as defined in La. R.S. 14:81.1. During this undercover operation, using “Bit Torrent” as the client for peer to peer file sharing, Investigator Louis Ratcliff was able to obtain a single sourced download from the user using IP Address “[XX.XXX.XXX].19” port [XXX]45

(Id.) During the direct connection with the computer at this second IP address, Ratcliff viewed thirty-four videos of young females of about ten to thirteen years of age. (Id.) The affidavit states that “one video Investigator Ratcliff downloaded was of a white juvenile female stripping and dancing.” (Id.)[4] The affidavit says that Ratcliff reviewed the files and they were “highly suggestive of child pornography.” (Id.)

         The affidavit next says:

Further investigation shows that the aforementioned IP address was registered to Cox Communications in Louisiana at the exact times and dates of the commission of the crime. Additional investigation by means of subpoenas to Cox Communications in Louisiana, and that company's response to the subpoena, indicates that on the exact dates and times of the commissions of the crime, IP Address “[XXX.XX.XXX].97” and “[XX.XXX.XXX].19” was being used by persons at [Defendant's physical address, as identified in the responses to the Cox Communications subpoenas].

(Id. (underline added).) Ratcliff testified that these statements were correct, though the first download did not happen in May but instead happened in March. (Mot. Hr'g Tr., 37-39, 64-65 Dec. 13, 2016, Doc. 49.) Ratcliff acknowledged though that, when the judge read the “exact dates and times of the commission of the crime, ” the only dates she knew were May 5th and June 13th. (Id. at 70.)

         On September 23, 2015, Judge Bonnie Jackson signed the search warrant. (Id. at 40; Def. Ex. 12.) Defendant now seeks to suppress the results of that search.

         II. Motion to Suppress

         A. Parties' Arguments

         1. Defendant's Motion to Suppress (Doc. 39)

         The Defendant claims that the affidavit contains the following material false statement: “Further investigation shows that the aforementioned IP address was registered to Cox Communications in Louisiana at the exact times and dates of the commission of the crime” (Doc. 39-1 at 8 (citing Def. Ex. E (Doc. 39-6) (emphasis by Defendant)).) The Defendant asserts that Ratcliff says the first direct contact with IP Address XXX.XX.XXX.97 was on May 5, 2015, but Cox's responses to the subpoena provided information for March 29 and 30.

         The Defendant argues there is no information for the IP address on May 5, 2015. The Defendant contends that Ratcliff gave the false impression that he consulted with Cox and verified the IP address on May 5, 2015 when in fact he had not. According to Defendant, this is material because the IP Address at the Defendant's physical address changed at some point between March 29, 2015 (when it was XXX.XX.XXX.97) and June 13, 2015 (when it was XX.XXX.XXX.19). Thus, at some point prior to May 5, 2015, the IP address could have changed, thereby severing the link to the Defendant's house on that date.

         The Defendant further claims that several internal investigation reports show that the download happened on May 5, 2015. For example:

. In the “Summary Memorandum” from the Louisiana DOJ Investigation Division, dated October 5, 2015, and “reported by” Louis Ratcliff, Ratcliff states that, on May 5, 2015 he downloaded the child pornography using Bit Torrent; that, on May 6, 2015, he prepared an administrative subpoena to Cox regarding IP address XXX.XX.XXX.97 for March 29 and 30, 2015; and that on May 28, 2015, Cox responded. (Def. Ex. 6; Def. Ex. G, Doc. 39-8).
. In an “Investigative Memorandum” from the same agency and division dated May 5, 2015, Ratcliff wrote that, “On May 5, 2015, Investigator Louis Ratcliff conducting undercover operations involving Pornography Involving Juveniles” and that, using “Bit Torrent”, he downloaded child pornography from IP address XXX.XX.XXX.97. (Def. Ex. 1; Def. Ex. H, Doc. 39-9.)
. In an “Investigative Memorandum” dated May 6, 2015 from the state DOJ, investigative division, Ratcliff wrote about how he prepared administrative subpoenas to Cox regarding IP address XXX.XX.XXX.97 for March 29 and 30. (Def. Ex. 2; Def. Ex. I, Doc. 39-10.)

         The Defendant argues that these documents show more than simple negligence. Ratcliff had these reports “at his fingertips, ” and they demonstrated that the “at the exact date and time” language was false. (Doc. 39-1 at 10.) Nevertheless, he made misrepresentations to Judge Bonnie Jackson. Defendant states that Ratcliff “had to have entertained more than serious doubts as to the truth of his allegations contained in the statement for probable cause because he was steward of all the information related to the investigation. The Investigator's actions are at a minimum in reckless disregard of the truth.” (Doc. 39-1 at 10.) The Defendant claims that recklessness can be inferred from the materiality.

         The Defendant says that, without the false portion, no judge would find that there was probable cause. The affidavit says:

Further investigation shows that the aforementioned IP address was registered to Cox Communications in Louisiana at the exact times and dates of the commission of the crime. Additional investigation by means of subpoenas to Cox Communications in Louisiana, and that company's response to the subpoena, indicates that on the exact dates and times of the commissions of the crime, IP Address “[XXX.XX.XXX.97]” and “[XX.XXX.XXX.19]” was being used by persons at [Defendant's physical address.]

(Def. Ex. 11; Def. Ex. E, Doc. 39-6.) Based on this, Ratcliff attested that there was probable cause for a search warrant to search that address.

         Defendant claims that Ratcliff had no evidence of the IP address on May 5, so this entire paragraph should be removed. The investigations were intertwined, and both IP addresses were included in one paragraph. Thus, the whole paragraph needs to be purged.

         2. Government's Opposition (Doc. 44)

         The Government concedes that there is “incorrect information” in the affidavit. Specifically, the Government notes:

It is important to note that the inaccurate information contained in the affidavit that has caused all of the confusion here is the statement that reads, in part, “On May 5, 2015, Investigator Louis Ratcliff . . . was conducting undercover operations involving Pornography Involving Juveniles . . . During this undercover operation … Inv. Ratcliff was able to obtain multiple single source downloads from the user using IP Address ‘[XXX.XX.XXX].97.'” According to Inv. Ratcliff, he drafted the reports on May 5, 2015, and mistakenly listed that date as the date of the downloads when the downloads had actually occurred on March 29 and 30, 2015.

(Doc. 44 at 3 n. 1.)

         The Government claims that the statements at issue support the investigation. The Government says that “[t]he statement at issue essentially reports that the IP Addresses, ‘[XXX.XX.XXX].97' and ‘[XX.XXX.XXX.19]' were registered to an individual at [Defendant's physical address], on the ‘exact dates and times' of multiple instances of undercover child pornography downloads from the IP Addresses.” (Doc. 44 at 3.) The Government asserts that, according to Ratcliff, he downloaded child pornography from IP Address [XXX.XX.XXX].97 on March 29, 2015 at approximately 08:18:48 pm and again at approximately 12:31:17 am on March 30, 2015. Def. Ex. B (Doc. 39-3; Def. Ex. 5), which is Cox's response to the subpoena, shows that that IP address was registered to a person at the Defendant's physical address on those dates and times. Thus, according to the Government, Ratcliff's statement in the affidavit that IP address XXX.XX.XXX.97 was registered to an individual at the Defendant's physical address “on the ‘exact dates and times' of the child pornography downloads is a truthful statement.” (Doc. 44 at 4.) Thus, the Government asserts that the Defendant has not made a substantial showing of a materially false statement.

         As to Ratcliff's intent, the Defendant is arguing, according to the Government, that Ratcliff made one drafting error, so he must have perjured himself or acted in reckless disregard for the truth. The Government claims “This is an absurd and offensive allegation. The idea that the Government would intentionally, or even recklessly, fabricate the content of an affidavit in order to obtain a search warrant when the affidavit contains more than enough information notwithstanding the inaccurate statements is ridiculous.” (Doc. 44 at 4.) The Government calls the Defendant's statements wholly unsupported. Ratcliff made no “more than mere typographical misstatements of the relevant dates. This is, no doubt, the type of mistake that anyone can make. Word processing errors are common even for the most astute typists.” (Id. at 5.) The Government concedes that Ratcliff could have been more careful in typing his reports, but that does not amount to intentional or reckless behavior.

         The Government claims that, even assuming that the Defendant had satisfied the above two requirements and the incorrect information were removed, the remaining portion would support a finding of probable cause. The Defendant only complains about the portion containing IP Address XXX.XX.XXX.97 allegedly used on May 5, 2015. The Defendant claims this was merely a technical error and does not change the fact that Ratcliff downloaded child pornography from the IP addresses associated with the Defendant on the exact dates and times of the downloads.

         3. Defendant's Post-Hearing Memorandum (Doc. 55)

         In Defendant's twenty-six page post-hearing memorandum, he argues that Ratcliff's affidavit of probable cause included false statements. Specifically, the affidavit was false when it claimed that, “On May 5, 2015, . . . Ratcliff . . . was conducting undercover operations, ” and, “[d]uring this undercover operation, ” Ratcliff downloaded child pornography from the user using the IP address XXX.XX.XXX.97. (Def. Ex. 11.) Defendant says the statement is false because Ratcliff now claims the download happened on March 29-30.

         Defendant also claims that the following underlined language is false:

Further investigation shows that the aforementioned IP address was registered to Cox Communications in Louisiana at the exact times and dates of the commission of the crime. Additional investigation by means of subpoenas to Cox Communications in Louisiana, and that company's response to the subpoena, indicates that on the exact dates and times of the commissions of the crime, IP Address “[XXX.XX.XXX].97” and “[XX.XXX.XXX].19” was being used ...

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