United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
December 8, 2017, following a three-day trial, a jury
convicted defendant Andries Snyman of one count of attempted
enticement of a minor under 18 U.S.C. § 2422(b).
(Dockets 91 & 97). Defendant filed a motion for judgment
of acquittal under Federal Rule of Criminal Procedure 29,
which the court denied. (Docket 105). Defendant later filed a
motion for a new trial alleging the government failed to
disclose evidence as required under Brady v.
Maryland. (Docket 114). The government resists the
motion. (Docket 134). The court finds defendant's trial
was marred by the government's failure to disclose
evidence favorable to defendant and material to the question
of his guilt as well as an instruction error. A new trial is
necessary to avoid a miscarriage of justice.
was working on a ranch in Isabel, South Dakota, in 2016.
Docket 123 at p. 40; see also Trial Ex. 3A at pp. 1,
12, 17-18. On August 5, 2016, Investigator Brian
Freeouf of the Pennington County Sheriff's Office and
member of the Internet Crimes Against Children Taskforce
(“ICAC”), logged on to the mobile phone
application Grindr to undertake an operation where he posed
as an underage boy to locate “adults that wanted to
have illegal sex” with children. (Docket 123 at pp.
45-46, 56). The nature of Grindr was contested at trial.
Investigator Freeouf testified Grindr is “strictly for
homosexual hookups, sex acts, and for other gay homosexual
men, not women, to meet each other.” Id. at p.
49. Defense expert Dr. Ilan Meyer, as well as government
rebuttal expert Dr. Irene Summers Temple, testified LGBT men
use Grindr for socialization in addition to sex. Id.
at pp. 58-59, 106.
also on Grindr, began a conversation with Investigator
Freeouf's underage persona while using the screenname
“Genissie”. (Docket 123 at pp. 58-59).
Investigator Freeouf took screenshots of the Grindr
conversation, which were admitted as evidence at trial.
Id. at p. 57; see also Trial Ex. 1.
Defendant messaged, “hi any facepix pls” and
Investigator Freeouf responded with a photograph of an
underage boy associated with law enforcement. Docket 123 at
pp. 59-60; Trial Ex. 1. Upon receiving the photograph,
defendant asked how old the persona was. (Docket 123 at p.
60). Investigator Freeouf responded he was fourteen.
Id. Defendant and the persona proceeded to exchange
messages on Grindr. Id. at pp. 61-65; Trial Ex. 1.
At trial, Investigator Freeouf testified the Grindr messages
concerned gay sex. Docket 123 at p. 63.
Freeouf then moved the conversation off of the Grindr
application to text messages. Id. at pp. 65-66. The
text messages between Freeouf and defendant were recorded
from Freeouf's cell phone. Id. at p. 68. They
were admitted into evidence at trial. Id. at p.
68-95 (Investigator Freeouf's trial testimony concerning
the text messages); see also Trial Ex. 2. Defendant
and Investigator Freeouf began messaging one another on
Grindr at 7:08 p.m. and moved to text messages at 7:43 p.m.
Trial Ex. 1 & 2. Defendant sent the last text message at
8:33 p.m. Trial Ex. 2. Investigator Freeouf testified he and
other law enforcement agents arrested defendant at
approximately 8:30 p.m. at a local high school, where he had
offered to meet defendant. (Docket 123 at pp. 83, 95-97).
after his arrest, Investigator Freeouf and Special Agent
Brent Gromer of the South Dakota Department of Criminal
Investigation (“SA Gromer”) interrogated
defendant. Id. at pp. 97-98. The interrogation was
recorded and played for the jury. Id. at 100-01.
During that interrogation, defendant stated he did not intend
to have sex with Investigator Freeouf's persona. Trial
Ex. 3A at p. 4. He stated he wanted to warn the persona about
the dangers of meeting older men online and explain LGBT life
to him. Id. at pp. 2-4, 9. Defendant told
Investigator Freeouf and SA Gromer he had had sex with people
he met online in the past, but that they were all over the
age of 18. Id. at p. 11. He stated he had met
“[m]aybe three or four” minors, but he never had
sex with any of them. Id. Defendant also voluntarily
gave up the passcode to his iPhone. Id. at p. 10.
Finally, defendant told Investigator Freeouf and SA Gromer he
had plans to meet up with another man that night.
December 6, the second day of trial, defense counsel informed
the court he received a “stack of paperwork” from
the prosecutor at 5 p.m. the evening before. (Docket 123 at
p. 26). The paperwork was an “Extraction Report”
containing a history of defendant's text messages going
back to 2013. Id. at p. 121; Docket 115 at p. 2. The
Extraction Report was not offered or admitted into evidence.
At trial, relying on the Extraction Report, both parties
elicited testimony from Investigator Freeouf that defendant
sent messages to other individuals on August 5, the day of
his arrest. (Docket 123 at pp. 154-63). One of those
individuals was a person named in the Extraction Report as
“rapid city jonny hello grdr”
(“Jonny”). (Dockets 115 at p. 2 & 123 at p.
157). Investigator Freeouf testified defendant sent eight
text messages to Jonny between August 3 and his arrest and
that all eight messages were unanswered. (Docket 123 at pp.
161-62). He also testified defendant called Jonny eight times
and each call was of a short enough duration to suggest that
no one answered. Id. at pp. 162-63.
she turned over the Extraction Report, the prosecutor
informed defense counsel she did not intend to use the text
messages in her case-in-chief, but would use them to impeach
defendant's claim “he had plans to meet someone
later . . . on the day of his arrest.” (Docket 115 at
p. 2). Defendant did not testify. However, the prosecutor
argued in her closing that defendant lied when he stated
under interrogation he was planning to meet up with another
man on the evening of his arrest. (Docket 124 at p. 121).
Defense counsel now asserts defendant did not testify out of
fear of being impeached with the text messages purportedly
showing Jonny did not respond to any of his inquiries.
(Docket 115 at p. 3).
Extraction Report disclosed at trial was incomplete. The
government now states it inadvertently disclosed only SMS
text messages and call logs. (Docket 134 at pp. 4-5). It
asserts “agents involved in the investigation
overlooked a single folder” containing other messages
and that neither it nor the agents “withheld
[information] intentionally or in bad faith[.]” (Docket
134 at p. 11). The complete Extraction Report shows defendant
and Jonny messaged each other multiple times through Apple
iMessage and another “instant message”
application (which appears to be Grindr) from 2015 up until
the evening of defendant's arrest. Id. at
p. 4. In their conversation leading up to August 5, defendant
and Jonny discuss both plans to meet on that day (the
“planning messages”) and the sexual nature of the
proposed meetup (the “sexual messages”).
Id. at pp. 5-8. At 5:51 p.m. on the date of the
arrest, Jonny told defendant he would have to postpone their
meeting until 10 or 11 p.m. Id. at p. 7; see
also Docket 134-1 at p. 957. Shortly after 6 p.m.,
defendant began messaging a number of individuals on Grindr,
all with the same message: “hi.” (Docket 134-1 at
pp. 3494-95). Investigator Freeouf's persona, operating
under the name “Ced Don, ” was one of these
individuals. Id. at p. 3495.
Freeouf conducted the forensic analysis of defendant's
iPhone. (Docket 123 at pp. 102-08). Prior to trial, the
government noticed Investigator Freeouf as an expert witness
who would testify regarding his “knowledge, skill,
training and experience with mobile device forensic
analysis” including “[h]is training and
experience regarding use of the Cellebrite UFED forensic
tool” used to produce the Extraction Report. (Docket 54
at pp. 2-3). According to his resume, Investigator Freeouf is
a Cellebrite certified Logical Operator and Physical Analyst.
(Docket 54-1 at p. 4). In its expert notice, the government
stated it provided defendant with a copy of Investigator
Freeouf's “forensic examination report detailing
his forensic analysis of the . . . iPhone 4.” (Docket
54 at p. 2). The record does not disclose further information
about this forensic examination report or its relationship to
the Extraction Report at issue.
February 6, 2018, approximately two months after the
conviction, defense counsel requested from the government
“all raw forensic extractions and acquisitions (the
bit-for-bit copy of the original evidence) of any devices
that were seized from” defendant. (Docket 115-1). In
response, the government provided the full Extraction Report
and the raw data from defendant's iPhone. (Docket 115-2
at p. 2). Defense expert Daniel Meinke ran the raw data
through his own Cellebrite program and discovered the
messages between defendant and Jonny. Id. at pp.
3-4. Mr. Meinke also filed an affidavit stating the messages
between defendant and Jonny were “readily apparent and
discoverable through the application of routine forensic
analysis techniques.” (Docket 139-1 at p. 2). Mr.
Meinke disagreed with the government's assertion it
overlooked the messages between defendant and Jonny.
Motion for a new trial
Rule of Criminal Procedure 33 permits the court to vacate the
jury's verdict and grant a new trial. Fed. R. Crim. P.
33(a). Defendant timely filed the motion within the three
years allotted for claims grounded in newly discovered
evidence. Fed. R. Crim. P. 33(b)(1). The decision to
grant or deny a Rule 33 motion “is within the sound
discretion of the [district] court.” United States
v. Campos, 306 F.3d 577, 579 (8th Cir. 2002). The
court's discretion is both broad and limited.
Id. It is broad to the extent the court “can
weigh the evidence, disbelieve witnesses, and grant a new
trial even where there is substantial evidence to sustain the
verdict.” Id. (internal quotation marks and
citations omitted). “[T]he court need not view the
evidence most favorably to the verdict.” United
States v. Worman, 622 F.3d 969, 977 (8th Cir. 2010);
United States v. Lacey, 219 F.3d 779, 783-84 (8th
Cir. 2000) (In determining whether to grant a Rule 33 motion,
“the court need not view the evidence in the light most
favorable to the government, but may instead weigh the
evidence and evaluate for itself the credibility of the
witnesses.”). The court's discretion is limited to
the extent the court must allow the jury's verdict to
stand unless it determines a miscarriage of justice will
occur. Worman, 622 F.3d at 978 (“A district
court will upset a jury's finding only if it ultimately
determines that a miscarriage of justice will occur.”).
district court should not grant a motion for a new trial
simply because it would have reached a different
verdict.” United States v. Bertling, 510 F.3d
804, 808 (8th Cir. 2007). When considering a Rule 33 motion
for a new trial, “what the district court . . . thinks
of a defendant's guilt or innocence is of little import
if there is sufficient evidence to support the jury's
guilty verdict. The jury watched and heard each witness
testify, viewed the documentary evidence, and came to a
conclusion about who and what to believe.” United
States v. Fazio, 487 F.3d 646, 656 (8th Cir. 2007). The
district court should use its authority to grant a Rule 33
motion “sparingly and with caution.”
Campos, 306 F.3d at 579.
Brady, the State violates a defendant's right to
due process if it withholds evidence that is favorable to the
defense and material to the defendant's guilt or
punishment.” Smith v. Cain, 565 U.S. 73, 75
(2012). “This duty extends not only to evidence of
which a prosecutor is aware, but also to material
‘favorable evidence known to the others acting on the
government's behalf in the case, including the
police.' ” United States v. Robinson, 809
F.3d 991, 996 (8th Cir. 2016) (quoting Kyles v.
Whitley, 514 U.S. 419, 437 (1995)). “To establish
a claim under Brady, [defendant] must establish that
(1) the government suppressed evidence; (2) the evidence was
favorable to him; and (3) the evidence was material to the
outcome of the trial.” United States v.
Garrett, 898 F.3d 811, 816 (8th Cir. 2018).
“evidence is material only if there is a reasonable
probability that, had it been disclosed, the result of the
proceeding would have been different.”
Robinson, 809 F.3d at 996 (internal quotation
omitted). “A reasonable probability is a probability
sufficient to undermine the reviewing court's confidence
in the outcome of the proceeding.” United States v.
Tate, 633 F.3d 624, 630 (8th Cir. 2011) (internal
quotation omitted). “[I]f the omitted evidence creates
a reasonable doubt that did not otherwise exist,
constitutional error has been committed. This means that the
omission must be evaluated in the context of the entire
record. If there is no reasonable doubt about guilt whether
or not the additional evidence is considered, there is no
justification for a new trial.” United States v.
Agurs, 427 U.S. 97, 112-13 (1976).