United States v. Jackson

488 F. Supp. 2d 866 (D. Neb. 2007)

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Nature of the Case

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Facts

The Federal Bureau of Investigation and the County Sheriff's Office participated in an investigation involving D which centered around online chats during the summer of 2001. An agent of the Postal Investigation Service, David Margritz (Margritz), known as 'k8tee4fun,' identified himself to D as a fourteen-year-old girl. The officers set up a meeting with D. After a number of conversations with law enforcement, D drove to a park, apparently with his daughter, but instead of stopping, he returned home. Officers then went to D's home, arrested him, and seized his computers. He was thereafter charged in state court with conspiracy to commit sexual assault. These charges were dismissed by the state on February 11, 2002, because Nebraska law does not permit a conspiracy charge between a defendant and an undercover government agent. On February 24, 2005, a grand jury indicted D for using a computer to knowingly attempt to persuade, induce, and entice a minor to engage in sexual activity in violation of 18 U.S.C. § 2422(b). D filed a motion to dismiss alleging that the pre-indictment delay violated his Fifth and Sixth Amendment rights. The magistrate recommended that the indictment be dismissed on Sixth Amendment grounds. The court agreed with the result of the magistrate's report and recommendation but dismissed the case on Fifth Amendment grounds. P appealed. Following remand, D filed a motion in limine to exclude evidence and an oral motion to dismiss the indictment. D seeks an order prohibiting the government from introducing the cut-and-paste document 4 of alleged online chat conversations between 'gnesta18' and 'k8tee4fun' into evidence at trial. There were no original documents of the chat conversation with D because his computer was wiped clean in a routine upgrade. Margritz did cut and paste the conversation from the chat window into a Word document but also admitted that some offline messages were not captured in the Word document. Two versions of the cut-and-paste document were made with just the chat and another with Margritz’s comments and notes. The first document was lost during the computer upgrade. P sought to introduce the version with notes. D brought in a computer forensics expert, who testified that a bit-stream image of the chat was the best way to confirm the chat. The expert testified that cutting and pasting the chat was the least effective way of capturing the chat and that the cut-and-paste document did not accurately reflect the conversation between D and Margritz. Jackson claimed that he intended to introduce the 14-year-old girl to his grandniece and that his intentions were reflected in offline messages not captured in the cut-and-paste document. The expert testified at great length regarding the multiple errors that he believes exist in the cut-and-paste version of the exhibit offered by Margritz. He testified that the errors were numerous, and he attributed them to operator errors.