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United States v. Snyman

United States District Court, D. South Dakota, Western Division

July 24, 2019





         On 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.[1] (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.


         I. Facts

         A. Offense conduct

         Defendant 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.[2] 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.

         Defendant, 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.

         Investigator 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).

         Immediately 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. Id.

         B. Additional messages

         On 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.

         When 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).

         The 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.[3] 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.[4] 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.

         Investigator 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.

         On 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. Id.

         II. Legal Standard

         A. Motion for a new trial

         Federal 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.[5] 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.”).

         “A 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.

         B. Brady

         “Under 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).

         Brady “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).

         III. Analysis

         A. ...

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