935 F.3d 313
5th Cir.2019Background
- NCMEC sent a cybertip to Dallas PD that Chatstep user “TexPerv” uploaded a lewd image of a prepubescent male on August 1, 2016; AT&T records later tied the relevant IP to subscriber Hugh Michael Glenn.
- AT&T records showed Glenn received service at 3025 West Forest on August 1, but FBI agent Mullican’s affidavit incorrectly stated Glenn’s address was 3500 Routh St on that date; a magistrate issued a warrant for the Routh St residence and officers executed the search on September 14, 2016.
- Glenn was present, waived Miranda, admitted using Chatstep as “TexPerv,” admitted downloading/uploading child pornography, and signed the back of the image from the tip; agents located numerous illicit images on the laptop during an on‑scene triage.
- At the lab, FBI examiner Lehman attempted to image the hard drive but encountered proprietary connector issues and multiple failed attempts; during one attempt the machine booted Windows and automatic updates (including a partial defrag) ran, overwriting about ten gigabytes of unallocated space.
- Defense experts conceded images in allocated space (including the thumb cache) were intact and that the overwritten unallocated data was at best potentially exculpatory; Lehman delayed preparing his 302 report for months.
- Glenn was indicted on two child‑pornography counts, moved to suppress (Franks) and to dismiss (Brady/Youngblood/spoliation), challenged foundation/Daubert for the images, was convicted on both counts, and appealed.
Issues
| Issue | Glenn's Argument | Government's Argument | Held |
|---|---|---|---|
| Motion to dismiss for prosecutorial misconduct (Brady) — failure to disclose overwritten data | Overwritten unallocated data was exculpatory/material; nondisclosure warrants dismissal | Overwritten data was not material; core evidence (admissions, images in allocated space) made outcome inevitable | Denied — no Brady materiality shown; verdict not undermined |
| Motion to dismiss for failure to preserve evidence (Youngblood) — overwritten data | Overwriting might have been exculpatory; requires dismissal or sanction | Overwriting was inadvertent/negligent, not bad faith; Youngblood requires bad faith to mandate relief | Denied — district court did not clearly err in finding no bad faith |
| Spoliation instruction re: overwritten data | Jury should be instructed on adverse inference because evidence destroyed | Destruction was inadvertent, not bad faith; instruction unwarranted | Denied — no abuse of discretion; bad faith not shown |
| Motion to suppress (Franks) — affidavit contained false address linking Glenn to upload | Mullican knowingly or recklessly misrepresented address; excising the false statement defeats probable cause | Mullican made an understandable mistake; district court credited her testimony; remaining facts support probable cause | Denied — Franks second prong not met (no intentional/reckless falsehood) |
| Daubert / foundation challenge to admission of images via Mullican | Mullican lacked personal knowledge of imaging/hash processes; only the imager should lay foundation | Mullican had sufficient FBI experience and foundation; ruling reviewed for abuse of discretion | Denied — no abuse of discretion in admitting images through Mullican |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (1978) (warrant voidable if affidavit contains a false statement made knowingly or with reckless disregard and remaining facts fail to establish probable cause)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose materially exculpatory evidence)
- Arizona v. Youngblood, 488 U.S. 51 (1988) (due process requires bad faith to remedy lost potentially exculpatory evidence)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) (trial court gatekeeping of expert/scientific testimony)
- United States v. Valas, 822 F.3d 228 (5th Cir. 2016) (no spoliation instruction where government technician inadvertently destroyed data)
- Banks v. Dretke, 540 U.S. 668 (2004) (Brady materiality standard — disclosure must undermine confidence in outcome)
- Kyles v. Whitley, 514 U.S. 419 (1995) (Brady materiality and the cumulative effect of undisclosed evidence)
- United States v. McNealy, 625 F.3d 858 (5th Cir. 2010) (review standard for district court bad‑faith findings in preservation cases)