Opinion
Case Number 04-20005-BC.
September 14, 2004
ORDER DENYING DEFENDANT'S MOTIONS TO QUASH SEARCH WARRANT AND SUPPRESS EVIDENCE AND GRANTING MOTION FOR DISCOVERY
This matter is before the Court on the defendant's motion to quash a search warrant and to suppress evidence obtained pursuant to the search warrant. The indictment charges the defendant with six counts of receiving obscene pictures over the internet in violation of 18 U.S.C. § 1462. The government also seeks to forfeit property in connection with this activity. The defendant contends that the search warrant is overbroad and violates the Fourth Amendment. The defendant also seeks access to the computer equipment seized from his home so that his expert witness can perform an examination in preparation for trial. A hearing on the motions was held on June 8, 2004 and the Court, after hearing testimony and argument, took the matters under advisement. The Court now finds that the search warrant is valid and the seizure of evidence was reasonable and in accordance with the Fourth Amendment. The Court also finds that the defendant is entitled to the discovery he seeks.
I.
The offending material in this case was seized during the course of an investigation of the defendant for soliciting a minor for immoral purposes, a state law charge that ultimately was not sustained. The police seized computer equipment from the defendant's residence as part of that investigation and discovered images stored on computer media, which the government contends are obscene. The defendant maintains that the police had no right to seize the computer and related items because there was insufficient reason to suspect him of criminal activity with a minor, and the search warrant was overbroad. He also alleges a violation of the First Amendment.
In August 2000, Michigan State Police Trooper Douglas Tanner was assigned to investigate a complaint made by Grant Stevens that his daughter, Anna, then age twelve, had been solicited for immoral purposes during an on-line internet chat session. Mr. Stevens apparently told Tanner that his daughter had access to a personal computer in the family's home and that she was actively involved in on-line "chatting." Stevens became alarmed when his daughter's therapist apparently revealed to him that Anna said that she had a meeting with a person she had "met" on line and that the person had taken a photograph of her. Stevens also saw that some of the conversation with a person, who used the screen name "Tiger," referred to physical meetings that had taken place. Stevens furnished Tanner with a transcript of an on-line chat session involving Anna and "Tiger," and, with the help of a state prosecutor, Tanner assembled the facts into an affidavit for a search warrant.
Tanner presented the affidavit and the on-line chat session transcript to a state court magistrate. Tanner averred in the affidavit:
1. Affiant is a trooper employed by the Michigan Department of State Police and has been so employed for the last six and one half [sic] years. Affiant also holds a Master's degree in Criminal Justice from MSU. Through the course of employment and education, training Affiant has had [sic] Affiant has received experience with the investigation of sex crimes committed against minor children.
2. Affiant on 8-9-2000 received a complaint from Mr. Grant Stevens, who is the father of Anna Stevens, his minor child by birth, d.o.b. 4-28-88. Mr. Stevens informed Affiant that his daughter Anna had been engaged in an ongoing relationship with a subject identified as "Tony Alexander" who lives on Bowery Street in the City of Gladwin.
3. A subsequent search of the LEIN/SOS records turned up a [sic] Anthony Wayne Alexander, white male, date of birth 12-10-66 whose address is 420 North Bowery Avenue, in the City of Gladwin.
4. Mr. Stevens informed me that this relationship has been going on for several months and primarily involved "online chatting" using a personal computer located in his and his daughter's residence.
5. Mr. Stevens provided me with transcripts of a portion of his daughter's conversations with Mr. Alexander who Mr. Stevens indicates uses the on-line alias of "Tiger" while engaged in these on-line conversations.
6. While reviewing these transcripts, dated 8-7-00 and 8-8-00, Mr. Alexander "Tiger" suggests kissing Anna, "genie girl". Mr. Alexander also makes references to visiting Anna, with concern expressed over her parents being home, as well as the presence of a dog at the Stevens residence. Mr. Alexander also discusses a meeting he had with Anna at a boat launch.
7. Mr. Stevens stated on 8-8-00 that Anna told her therapist of this meeting between Anna and Mr. Alexander. Mr. Stevens advised Anna had lied to Mr. Stevens about this visit, and that this was the first time Anna had lied to him. Mr. Stevens expresses[sic] great concern over this meeting, and indicates [sic] there is a boat launch a short distance from his residence.
8. Mr. Stevens indicated Anna had also told her therapist that Mr. Alexander had taken a photograph of her at this meeting. Affiant's training indicates this act is one consistent with child molestation activity.
9. Mr. Stevens provided me with an e-mail message sent to Mr. Steven's wife by Mr. Alexander in which he identifies himself. In this e-mail, Mr. Alexander confirms that he and Anna have been engaging in on-line chatting, during which time the subject of Anna being molested was discussed.
10. Based on the foregoing facts I believe that Mr. Alexander has committed crimes including the solicitation of a minor for immoral purposes and Affiant believes there will be evidence of these crimes found in Mr. Alexander's residence and/or on his computer.
Aff. in Supp. of Search Warrant at 2. As noted previously, Tanner presented the transcript of the chat sessions to the magistrate as well. Pertinent portions of the transcript state:
[August 7, 2000] Tiger okay, oh and the movie I was talking about earlier "first kiss" it was "never been kissed" sorry genie girl i didnt see that eether Tiger neither did I, I just wanted to keep dropping hints genie girl ic Tiger still with your nose, or do I get to talk about your eyes again genie girl i dont care i use both depending on the situstion . . . . . genie girl sorry situation Tiger well if you don't care I won't waste my time . . . what type of situation? genie girl well people cant tell that im looking with my nose so i do it when i want to see something that people dont want me to see. . . . . . Tiger okay, freak, but a cute one genie girl yup . . . genie girl if i get sick and die its chocolate or wheat it kinda runs in the family. . . Tiger I would rather see you live thank you genie girl i bet i could look really kewl dead. ill have to think about that one. . . . . . . . . . Tiger cut it out, don't make me come over there genie girl why not????? Tiger I don't want you thinking about being dead, okay genie girl ok Tiger thank you, and i sure can't come over now, with the whole family there Tiger and I don't know where there is anyways genie girl sleeping they wouldnt notice genie girl that is a problem. . . . . Tiger yeah but you have a dog/dogs don't you ? genie girl ya one genie girl so??? Tiger I think he would bark genie girl she makes noise all night long any way. it wouldnt be any different Tiger oooh, I C. well if i only knew where you lived, genie girl the only house with a goat chained in the yard Tiger yeah, well a street name might help narrow it down genie girl hi acre? Tiger hi acre, don't remember seeing that one when I was driving around genie girl i sed im bad with directions. i know my address. i don't know how to get here Tiger how far away are you from the boat launch? approx. genie girl a minute on bike Tiger and your not on the lake side, that does narrow it down. gezz we were that close to your house, glad we wasn't spotted. Tiger weren't spotted genie girl how could you be spotted????? i ride fast Tiger oh, we only sat there for an hour genie girl it would take an average person on bike 5 min genie girl only Tiger okay a little longer than an hour, you wouldn't let me go genie girl sorrie Tiger you should be, keeping me there like that genie girl i sorrie. do you love me anyway???? Tiger oh yeah!!!!!!!!!!!!!!! genie girl ok i feel better now Tiger i guess I just kept getting lost in those blue eyes and couldn't find my way to the van genie girl ill close them next time Tiger i might take advantage then genie girl kewl Tiger I don't know, you might not like it genie girl you dont know. i might Tiger but would it be worth the risk to find out??? genie girl i dont know, what were you planning? Tiger maybe a small kiss . . . Tiger you really want to kiss me? genie girl why not???? Tiger well didn't you tell me you've "never been kissed" by anyone outside of your family genie girl ya why? Tiger well, don't you girls dream of that special guy to do that with? Tiger do you really want to waste it with an older guy genie girl maybe some girls do. i wasnt thinking of a 'real kiss', that would ruin everything Tiger and are u, a few years down the road going to regret doing that? genie girl why would i? Tiger just asking, so what do you call a "real kiss", because I don't want to ruin our friendship genie girl like a french (ewww) or a rilly long one they do on the movies Tiger okay, so no make out session is what your saying genie girl something like that Tiger ok, I think I can handle that. as long as your ok with it genie girl i only do lip kisses with two people and they would be mad if i started doing it with other people . . . . . . genie girl any day now Tiger any day now what? genie girl you were gonna make me smile?? genie girl laugh? blush? Tiger in person, see you would like to me and say you didn't genie girl no i wouldnt Tiger yep, i'll wait, can you? genie girl not likely Tiger well, you'll have too genie girl ok Tiger and I hope thats soon!!!! genie girl ya me too Tiger wow, i'm looking at some really cute pictures of this girl Tiger oh, its you genie girl who? genie girl ahhh Tiger you have to belive me because I wouldn't lie to you Tiger i see your brother just came on genie girl yup Tiger well I think I am going to bed in a few min genie girl ya me too Tiger wow, cool, your not going to try to keep me up genie girl nope i have to wake up tomorrow Tiger i hope you wake up every day genie girl ya but i have to wake up at a normall hour. i wont be on much till after 3 i think Tiger what'c doing genie girl gotta see michelle Tiger okay, I can hold out genie girl i will never understand why im forced to sit in her office for an hour every week. its pretty boring. maybe ill bring a book. . . Tiger well your parents are concerned, lots of love, want to see u [sic] soon, I think I will turn in now genie girl ok love ya g'night Tiger g-night my sweet angel genie girl sweetdreams Tiger I will now that I have a face to put with it genie girl dont tell Tiger never, bye genie girl this is funny Tiger y? genie girl just like earlier, cant leave Tiger see wait you do Tiger see what u do genie girl ya genie girl its fun though Tiger okay, i'm leaving now, promise, don't say anything genie girl luvalotz g'night Tiger stop it, I love you more genie girl no you dont goodnight Tiger yes I do, night, I'm leaving, bye, I mean it genie girl g'night Tiger g'night [August 8, 2000] genie girl hihi Tiger hello genie girl whats up Tiger didn't expect to hear from you this morning Tiger just downloading some stuff genie girl ive only got till amy gets out of the shower genie girl ic Tiger oh, then your taking one? genie girl ya Tiger need any help? jk genie girl no thanx Tiger i said just kidding, just trying to make you smile genie girl you did it
Tr. of On-line Chat Sessions at 2-8 (emphasis added; spelling, grammar, punctuation, and capitalization in original).
On August 9, 2000, Anna's mother received an e-mail message sent by "Tony Alexander" in which the writer acknowledged corresponding with Anna by e-mail. He also stated that he learned that Anna previously had been molested and was seeing a therapist. The writer also said that he had agreed to meet with Anna, but that he would respect the wishes of her parents that he was to have no contact. This letter was presented to the magistrate by Trooper Tanner along with the transcript and the affidavit.
On August 10, 2000, a state magistrate issued a warrant to search the defendant's home and seize computers and related equipment; diaries, notes, and chat logs; documents showing sexual contact between adults and juveniles; photographs, magazines, movies and video tapes depicting nudity or sexual activity of juveniles; documentation that might disclose the identity of child victims; cameras and other recording devices that could be used to record sexually explicit conduct; telephone bills and other documentation that could be used to establish a link to an internet service provider; and other related items. The warrant also authorized the search of computer equipment using technology that might require off-site applications. The warrant was executed on that same day, and 163 items were seized, according to the search warrant tabulation. The items consisted mainly of computers and various data storage media, a photograph, notes, telephone numbers, and receipts.
The defendant states in his motion papers that a state criminal prosecution concerning the minor child was commenced and ultimately dismissed. However, the government believes that certain images found on the defendant's computer are obscene, and this indictment followed. The defendant has asked the Court to suppress the evidence, and the government opposes the motion on the grounds that probable cause supported the search warrant, the search warrant was not overbroad and particularly described the items to be seized, and the "good faith" exception approved in United States v. Leon, 468 U.S. 897 (1984), rescues the search and seizure from any deficiency that might be found in the warrant. The defendant also asks the Court to compel the government to produce a duplicate copy of the computer hard drive that contains the alleged obscene images so that a defense expert can examine it. The government has resisted that motion on the ground that it ought not allow obscene material out of its control, and it insists that any inspection by a defense expert be performed at a Federal Bureau of Investigation office in Spokane, Washington.
II.
As an initial matter, the government opposes the defendant's suppression motion on the ground that he lacks "standing" to bring it. The government lawyer assigned to this case generally raises this argument in response to most of the suppression motions filed in this Court, regardless of whether any facts might support it. In this case, the police swore under oath that the defendant lived at the residence the police sought to search, and their ensuing investigation did not turn up any contrary evidence. Although courts in other Circuits have observed that a defendant cannot rely on government allegations to establish his own privacy interest, see, e.g., United States v. Zermeno, 66 F.3d 1058, 1062 (9th Cir. 1995); United States v. Ruth, 65 F.3d 599, 604-05 (7th Cir. 1995), where the facts showing a legitimate expectation of privacy are manifest, the energy of counsel and the Court could be better spent on issues that have some semblance of merit.
More to the point, characterizing the question as one of "standing" miscasts the issue. The Supreme Court rejected the concept of "standing" in Rakas v. Illinois, 439 U.S. 128, 139-40 (1978). It is commonly acknowledged that "in determining whether a defendant is able to show the violation of his . . . Fourth Amendment rights, the 'definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.'" Minnesota v. Carter, 525 U.S. 83, 88 (1998) (quoting Rakas, 439 U.S. at 140). The Sixth Circuit has recognized that "the concept of 'standing' has not had a place in Fourth Amendment jurisprudence for more than a decade" and that "the matter of standing in the context of searches and seizures actually involve[s] substantive Fourth Amendment law [in which] . . . a defendant [must] prove a legitimate expectation of privacy as a prerequisite to challenging assertedly unlawful police conduct." United States v. Smith, 263 F.3d 571, 581-82 (6th Cir. 2001) (quoting United States v. Sanchez, 943 F.2d 110, 113 n. 1 (1st Cir. 1991)).
Thus, in order to determine whether the defendant may challenge the search and seizure in this case as a violation of the Fourth Amendment, the defendant must establish, first, that he had an actual, subjective expectation of privacy, and second, that the expectation was a legitimate, objectively reasonable one. Smith, 263 F.3d at 581 (citing Smith v. Maryland, 442 U.S. 735 (1979)). "Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas, 439 U.S. at 143 n. 12. In this case, the uncontradicted evidence established that the defendant lived at the address searched with his wife and children. He rented the home from his landlord on a month-to-month basis, he paid the rent himself, and his family members were the sole occupants of the home. He also operated his computer repair business from his home. The property seized either belonged to him or he had custody of it as the bailor of his customers. Although the customers' computers have been returned, the evidence in this case that the defendant seeks to suppress is purportedly his own computer and hard drive. There can be no genuine question about the defendant's legitimate expectation of privacy in the place searched and the items seized.
III.
The defendant contends that the search warrant is infirm because it is not supported by probable cause to believe that a crime was committed. The crime ostensibly being investigated in this case was the solicitation of a minor child for immoral purposes. The pertinent Michigan statute states:
A person who accosts, entices, or solicits a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age with the intent to induce or force that child or individual to commit an immoral act, to submit to an act of sexual intercourse or an act of gross indecency, or to any other act of depravity or delinquency, or who encourages a child less than 16 years of age, regardless of whether the person knows the individual is a child or knows the actual age of the child, or an individual whom he or she believes is a child less than 16 years of age to engage in any of those acts is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $4,000.00, or both.
Mich. Com. Laws § 750.145a.
Items that may be seized pursuant to a search warrant are limited to contraband, fruits of a crime, instrumentalities of a crime, and evidence of criminal conduct. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 306-07 (1967) ("The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for 'mere evidence' or for fruits, instrumentalities or contraband"). "[T]he government may not seize evidence simply for the purpose of proving crime;" rather, there must be a nexus between the item to be seized and criminal behavior. Id. at 307. Where the search is for fruits, instrumentalities or contraband, the nexus is automatically provided. Ibid. In the case of "mere evidence," however, "probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction" and the court should also consider the purposes of the police in searching for "mere evidence." Ibid. After Warden, the Federal Rules of Criminal Procedure were modified to authorize the issuance of a warrant to search for items of solely evidential value. Fed.R.Crim.P. 41(b). See also 18 U.S.C. § 3103a(a) (a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense). Neither the statute nor the rule attenuates the requirement of the nexus described by the Warden court. See also Clarke v. Neil, 427 F.2d 1322, 1324 (6th Cir. 1970) (holding that to uphold the validity of a search and seizure involving mere evidence requires finding the search was lawful and that police had requisite probable cause to justify search); United States v. Alloway, 397 F.2d 105, 110 (6th Cir. 1968) (holding that "an item which can be considered a means or instrumentality of crime may be seized even though such item is not described in the warrant under which the search is being conducted").
The Court believes that probable cause existed to support the issuance of a warrant to search and seize computers and related items located at the defendant's residence. "The test for probable cause is simply whether there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002) (quoting United States v. Murphy, 241 F.3d 447, 457 (6th Cir. 2001)); United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999) (Probable cause "requires only a probability or substantial chance of criminal activity, not an actual showing of such activity."). When determining whether probable cause exists, the judicial officer issuing the search warrant should look at the totality of the circumstances and "make a practical, common sense decision . . . given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information." Id. (quoting Murphy, 241 F.3d at 457); see Illinois v. Gates, 462 U.S. 213, 238 (1983). The information presented to the state magistrate, taken together, justified a conclusion that the defendant was engaging in conduct that violated the Michigan criminal statute quoted above. The affidavit and transcript established that the defendant was engaging in internet conversations with a twelve-year-old girl; he pressed her to have a face-to-face meeting; he knew that she was the past victim of abuse; he suggested that he waited for more than an hour at a location in order to observe her; he obtained a photograph of her; he made overtures toward her about physical contact, specifically mentioning kissing her; and he asked her if he could "help" her take a shower. The magistrate also was given information that the defendant was thirty-four years old at the time of the conversations and he admitted contacting the young girl on line. The police officer-affiant added a dimension to this information that cast the defendant's already questionable conduct in a more sinister light when viewed through the lens of his training in the detection of child molesters. There was sufficient information, in the Court's view, to establish the probability or substantial chance of criminal activity.
Moreover, all items listed in the warrant to be seized were related to the crime that was the subject of investigation. Since the contact with the young girl was initiated over the internet, there was a nexus to the computers and related equipment sought to be seized. The other items seized also related to the question of identity of the defendant or purported victims, things that could be used to establish a bond or close relationship with a child victim, or documentation establishing the defendant's access to on-line devices. The search warrant was properly limited to those items for which probable cause was established.
Finally, the defendant contends that the seizure of the written and pictorial images violates his rights under the First Amendment. It is true that a warrant for the seizure of documents and personal papers impacting the expression of ideas and viewpoints must be exquisitely supported by probable cause and the requirements of the Fourth Amendment are to be "applied with 'scrupulous exactitude.'" Zucher v. Stanford Daily, 436 U.S. 547, 564 (1978) (quoting Stanford v. Texas, 379 U.S. 476, 485 (1965)). However, in this case the purpose of the search was not directed at activity or items protected by the First Amendment. Rather, the object of the search was to uncover evidence of sexual predation where the target was a minor child. There was no suggestion that the police intended to suppress protected speech or stifle assertive conduct intended as an expression of ideas. Consequently, the interests and concerns discussed in Stanford v. Texas were not implicated by the police conduct in this case.
The Court finds that the search and seizure of the items in this case was consistent with the requirements of the Fourth Amendment. The motion to suppress the evidence, therefore, will be denied.
IV.
The defendant also seeks discovery of the computer evidence seized from him. It is anticipated that the government will offer in evidence at trial the images retrieved from the defendant's computer. The defendant has retained an expert, who is a former Drug Enforcement Agency and Secret Service Agent with training in the area of pornography disseminated over the Internet, who filed an affidavit stating that he intends to examine the computer hard drive to determine and offer an opinion on whether the location of the image on the hard drive supports or contradicts the claim that the defendant knowingly received obscene images. He states that his examination may require the use of hardware and software that would be difficult to transport to a remote location, he may need repeated access to the storage media, he could best perform this work in his own laboratory, and he has performed these tasks in such a manner in a variety of other cases in several federal jurisdictions. The defendant, therefore, asks that the government produce a mirror image copy of the hard drive on which the subject images reside and furnish the copy to the defendant's expert.
The government objects to the defendant's request and states that if the defense expert wants to examine a mirror image of the hard drive he may do so only under the supervision of the Federal Bureau of Investigation. The government offered to make the medium available to the expert at a Bureau office in Spokane, Washington near his place of business, reasoning that the items that reside on the hard drive are obscene and therefore contraband Apparently, the government is concerned about the further dissemination of that contraband
The defendant bases his motion on Federal Rule of Criminal Procedure 16, which states in part:
Upon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.
Fed.R.Crim.P. 16(a)(1)(E)(i)-(iii) (2002).
A defendant who requests copies of documents or tangible evidence under Rule 16(a)(1)(E) "must make a prima facie showing of materiality" with allegations that present more than "mere conclusory arguments concerning materiality." United States v. Phillip, 948 F.2d 241, 250 (6th Cir. 1991). Here, the defendant contends that he is entitled to a copy of the hard drive on the basis of all three grounds listed in the Rule. The Court agrees. Access to the hard drive on which the alleged obscene images are stored is important to the defense in order to determine when, how, and under what circumstances those images were downloaded onto the defendant's computer, if such a determination can be made. Since receipt of obscene images over the internet must be done "knowingly" to constitute a crime under 18 U.S.C. § 1462, evidence encoded on the hard drive that might reveal dates, times and circumstances of receipt of information is material to the defense. The government also intends to use the images at trial. The object of the dispute in this case is the content of the hard drive, and the so-called original writings rule would demand that the original image as stored on the seized item be produced, unless an exception applies. See Fed.R.Evid. 1002, 1003. Lastly, the images come from computer equipment that belongs to the defendant.
As for the government's concern about the further dissemination of contraband, the Court is content to rely on the efficacy of its orders to protect the public from further disclosure of the images. See Fed.R.Crim.P. 16(d). The Court will condition the transfer of a mirror image copy of the hard drive on observance by the defense expert of a prescribed protocol, the violations of which are punishable as contempt of court.
V.
The Court determines that the defendant had a legitimate expectation of privacy in the place searched and the items seized in this case, and that the search and seizure of the items from the defendant's residence did not violate the Constitution. The Court also finds that the defendant is entitled to discovery.
Accordingly, it is ORDERED that the defendant's motion to quash search warrant and suppress evidence [dkt # 13] is DENIED.
It is further ORDERED that the defendant's motion for discovery [dkt # 15] is GRANTED as follows:
A. The government, through the Federal Bureau of Investigation, shall furnish to the defendant's forensic examiner, Markus K. Lawson, on or before September 28, 2004, a mirror image copy of the hard drive of the computer seized from the defendant that contains the images that the government contends are obscene and that form the basis of the charges in the indictment.
B. The forensic examiner shall maintain possession and control of the mirror image copy during the pendency of this case and shall not disseminate the copy or any duplicates of the hard drive in any medium or any images developed therefrom, except to defense counsel for the sole purpose of conducting the defense in this matter.
C. The forensic examiner shall maintain a log of any copies of any images in any media developed as a result of his forensic examination. The log shall contain the date, time, description, and purpose of developing or copying any images from the mirror image copy of the hard drive.
D. At the conclusion of this case, the forensic examiner shall return the mirror image copy of the hard drive, all copies of images in any medium whatsoever developed from the hard drive copy, and the log, to an agent of the Federal Bureau of Investigation to be designated by the attorney for the government.
E. Before the mirror image copy of the hard drive is delivered to the forensic examiner, the forensic examiner shall sign a statement acknowledging that he agrees to be bound by the terms of this order, and that a violation of the order shall be punishable as criminal contempt of court, in addition to any other violation of state or federal law that may result.