United States District Court, N.D. Iowa, Western Division
ORDER REGARDING APPEAL OF MAGISTRATE'S ORDER CONCERNING DEFENDANT'S MOTION TO COMPEL
MARK W. BENNETT, District Judge.
I. INTRODUCTION AND BACKGROUND
A. Procedural Background
On March 20, 2014, a Superseding Indictment was returned against defendant Yoirlan Tome Rojas charging him with using a counterfeit access device, in violation of 18 U.S.C. § 1029(a)(1) (Counts 1 & 2), possession of fifteen or more counterfeit access devices, in violation of 18 U.S.C. § 1029(a)(3) (Count 3), money laundering, in violation of 18 U.S.C. § 1956(a)(1) (Count 4), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 5 & 6).
Defendant Rojas filed a motion to compel in which he seeks an order directing the prosecution to (a) reveal the identity of a confidential informant ("CI") in an ongoing investigation in Texas, (b) turn over the photograph used by the CI to identify Rojas and (c) make available the basis for a search warrant issued in Texas concerning electronic evidence.
On August 5, 2014, United States Magistrate Judge Leonard T. Strand conducted an evidentiary hearing on Rojas's motion to compel. At that hearing, the prosecution offered the testimony of Brian Flikeid of the Storm Lake, Iowa, Police Department. Rojas proffered information through his attorney, but offered no witnesses or exhibits.
On August 12, 2014, Judge Strand denied Rojas's motion to compel. However, Judge Strand did require the prosecution to make a direct inquiry of the Secret Service in Texas to determine whether their investigative file contains information that must be disclosed to Rojas pursuant to Brady v. Maryland , 373 U.S. 83 (1963). In the event that the inquiry resulted in the discovery of Brady materials, Judge Stand ordered that those materials be immediately disclosed to Rojas. Following the hearing, the prosecution complied with Judge Strand's order and made a direct inquiry of the Secret Service agent in Texas concerning the existence of Brady material in the Texas investigation. The prosecution subsequently notified Rojas's counsel that, as a result of its inquiry, it did not believe that the Texas investigatory materials contained any Brady materials.
On August 25, 2014, Rojas appealed Judge Strand's order denying his motion to compel. Rojas contends that Judge Strand's order denying his motion to compel was contrary to established law and clearly erroneous. The prosecution filed a timely resistance to Rojas's appeal on August 27, 2014.
B. Factual Background
In his order, Judge Strand made the following factual findings:
The Storm Lake Police Department was contacted by two out-of-state victims who reported their credit cards were fraudulently charged at a Wal-Mart store in Storm Lake on September 13, 2013, and November 6, 2013. The victims still had possession of their genuine credit cards. However, their account numbers were utilized to make purchases with manufactured counterfeit cards. Officers contacted the store's loss prevention manager and obtained surveillance videos and purchase information for the transactions at issue. According to Flikeid, the video evidence shows Tome Rojas using fraudulent credit cards linked to the victims' accounts.
Storm Lake police officers obtained and executed a search warrant for Tome Rojas's home, person and a storage locker in his apartment building. The officers found 244 manufactured counterfeit credit cards. The case was then referred to the United States Secret Service, which assigned Agent Michael Hawkins to the investigation. On February 20, 2014, the Grand Jury returned the original federal indictment (Doc. No. 1) against Tome Rojas and an arrest warrant was issued. Federal agents arrested Tome Rojas on February 27, 2014.
During the course of his investigation, Hawkins was contacted by Secret Service agents in Texas who were investigating a credit card fraud case. Those agents informed Hawkins that Tome Rojas had come to their attention, as a CI had identified him via a photograph as being a member of a credit card fraud ring. Based on the CI's reports and their own investigation, the agents in Texas obtained and executed a search warrant for an email address and other electronic evidence purportedly connected to Tome Rojas. That warrant allegedly generated evidence of an extensive credit card fraud ring, including 16-digit credit card account numbers, victim information, information about manufacturing counterfeit devices and suspect information. According to the Government, however, none of the evidence obtained through the Texas investigation forms the basis for any counts of the superseding indictment against Tome Rojas in this case. Moreover, during the hearing counsel for the Government ...