United States v. Foreman
2:23-cr-00105
D. Nev.May 20, 2024Background
- Defendant Nathan Thomas Foreman is charged with Coercion and Enticement and Possession of Child Pornography based on evidence found on his cell phone.
- Defense retained digital forensic expert Arthur Hively to examine the phone, which contains CSAM (child sexual abuse material).
- Review of such evidence is regulated by the Adam Walsh Child Protection and Safety Act, 18 U.S.C. § 3509.
- Parties disagreed on whether Hively could use his own computer and whether the FBI could search it post-review.
- Magistrate Judge allowed Hively to use his own equipment and required only an affidavit certifying he removed no CSAM, over government's objections.
- Government moved for reconsideration, arguing the Magistrate Judge's order was contrary to law and FBI policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hively could use his own computer | Act and FBI policy require defense expert to use a government computer. | Using a gov’t computer risks disclosure of defense strategy and work product. | Magistrate Judge’s order not clearly erroneous; Hively may use own. |
| Whether FBI can inspect Hively’s equipment | FBI must check that CSAM is not removed, not rely on mere certification. | Requiring search of equipment risks exposure of privileged defense material/strategy. | Affidavit certification is sufficient and consistent with precedent. |
Key Cases Cited
- United States v. Ressam, 629 F.3d 793 (9th Cir. 2010) (defining the 'clearly erroneous' standard for district court review of magistrate judge decisions)
- United States v. Wright, 625 F.3d 583 (9th Cir. 2010) (interpreting standards for reasonable access under the Adam Walsh Act)
- Grimes v. Cty. & Cnty. of San Francisco, 951 F.2d 236 (9th Cir. 1991) (reviewing court may not substitute its own judgment for that of the magistrate judge)