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United States v. Conrad

April 8, 2010


The opinion of the court was delivered by: Amy J. St. Eve United States District Court Judge


AMY J. ST. EVE, District Court Judge

After a two-week trial in which fourteen witnesses testified and dozens of exhibits were admitted into evidence, a jury found Defendant, David Conrad, guilty on eight counts of possessing, transporting, advertising, and distributing child pornography in violation of 18 U.S.C. §§ 2251(c)(1)(A), 2251(d), 2252A(a)(1), 2252A(a)(2)(A), 2252A(a)(5)(B), 2252A(b)(1), and 2252A(b)(2). Defendant has filed a motion for a judgment of acquittal under Federal Rule of Criminal Procedure 29 and, in the alternative, for a new trial under Rule 33. For the following reasons, the Court denies Defendant's motion for judgment of acquittal and for a new trial.*fn1


"A district court should grant a motion for a judgment of acquittal only when there is insufficient evidence to sustain a conviction." United States v. Moses, 513 F.3d 727, 733 (7th Cir. 2008); see also United States v. Presbitero, 569 F.3d 691, 704 (7th Cir. 2009). A court reviewing a Rule 29 motion should "view the evidence in the light most favorable to the government and ask whether any rational jury could have found the essential elements of the charged crime beyond a reasonable doubt." Presbitero, 569 F.3d at 704; see also United States v. Warren, 593 F.3d 540, 546 (7th Cir. 2010); United States v. Bolivar, 532 F.3d 599, 603 (7th Cir. 2008); Moses, 513 F.3d at 733; United States v. Genova, 333 F.3d 750, 757 (7th Cir. 2003) ("The issue on a motion under Rule 29(c) is the same as the issue on appeal: whether the evidence, taken in the light most favorable to the verdict, permits a sensible person to find beyond a reasonable doubt that the defendant committed the crime alleged."); United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002). A court will "set aside a jury's guilty verdict only if 'the record contains no evidence, regardless of how it is weighed,' from which a jury could have returned a conviction." Presbitero, 569 F.3d at 704 (quoting Moses, 513 F.3d at 733).

"Under Rule 33 of the Federal Rules of Criminal Procedure, a district court 'may vacate any judgment and grant a new trial if the interest of justice so requires.'" United States v. McGee, 408 F.3d 966, 979 (7th Cir. 2005); see also United States v. Christ, 513 F.3d 762, 775 (7th Cir. 2008). "'[C]courts have interpreted [Rule 33] to require a new trial in the interests of justice in a variety of situations in which the substantial rights of the defendant have been jeopardized by errors or omissions during trial.'" United States v. Eberhart, 388 F.3d 1043, 1048 (7th Cir. 2004), overruled on other grounds, 546 U.S. 12, 126 S.Ct. 403 (2005) (quoting United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989), with internal quotation from Kuzniar omitted). "'A jury verdict in a criminal case is not to be overturned lightly, and therefore a Rule 33 motion is not to be granted lightly.'" Eberhart, 388 F.3d at 1048 (quoting United States v. Santos, 20 F.3d 280, 285 (7th Cir. 1994)). Accordingly, a court may grant a new trial if the jury's verdict is "so contrary to the weight of the evidence that a new trial is required in the interest of justice." United States v. Washington, 184 F.3d 653, 657 (7th Cir. 1999) ("The focus in a motion for a new trial is not on whether the testimony is so incredible that it should have been excluded. Rather, the court considers whether the verdict is against the manifest weight of the evidence, taking into account the credibility of the witnesses."). "The court should grant a motion for a new trial only if the evidence 'preponderate[s] heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.'" United States v. Swan, 486 F.3d 260, 266 (7th Cir. 2007) (quoting United States v. Reed, 875 F.2d 107, 113 (7th Cir. 1989)); see also Presbitero, 569 F.3d at 706 (quoting Washington, 184 F.3d at 657-58).


Palos Heights Police Sergeant Michael Zaglifa was conducting an undercover investigation of on-line child pornography distribution on July 12 and October 24, 2002. During each of those undercover sessions, Sergeant Zaglifa entered a chat room with a name suggestive of child pornography and saw an individual, using the nickname "v^sickboy^v" in July and "EvolDSL" in October, advertising child pornography videos and offering to distribute them from his F-serve in return for additional child pornography. During both undercover sessions, Sergeant Zaglifa made a direct connection with the individual's F-serve and, after uploading encrypted files, downloaded from the F-serve to his computer child-pornography videos. An internet-service-provider ("ISP") representative testified that the individual running the F-serve initiated the sessions with Sergeant Zaglifa from the same physical location.

After Sergeant Zaglifa, with the assistance of the ISP, traced the individual's IP addresses for each of the undercover sessions to Rogers Machinery Sales ("Rogers Machinery") -- a business that Defendant's father, Roger Conrad, owned -- law enforcement agents obtained a warrant to search Rogers Machinery. On December 20, 2002, one team of law enforcement agents executed the search warrant at Rogers Machinery, while a second team went to Roger Conrad's Geneva, Illinois residence ("Geneva Residence"). When law enforcement agents searched Rogers Machinery, they found no evidence of child pornography or F-serve software. At the Geneva Residence, Defendant agreed to accompany law enforcement agents to his apartment on Milwaukee Avenue in Chicago. After arriving there, Defendant signed a waiver of his Miranda rights, consented to searches of his Milwaukee Avenue apartment and computers, and admitted, among other things, that he had used his laptop computer to run the F-serve and had advertised and solicited pornographic movies. Law enforcement agents showed copies of printouts from Sergeant Zaglifa's undercover sessions to Defendant, who wrote brief statements on them and signed them to indicate that he had been engaged in the activity during the undercover sessions.

Law enforcement agents forensically tested Defendant's computers in 2003-2004 and found on his Micron Millenia computer child pornography and text logs in which Defendant had used nicknames that were similar to the nicknames and trigger words that he had used during the undercover sessions. In June 2009, the government again forensically examined Defendant's computers, this time pursuant to a search warrant. Using superior software than that used in 2003-2004, Paul Rettig, a Computer Forensic Examiner with the Chicago Regional Computer Forensics Laboratory, found additional chat logs and child pornography on Defendant's computers, including one of the charged videos. Additionally, Rettig found that the advertisements from the July 14, 2002, undercover session matched the advertisement found in a July 14, 2002, text log from one of Defendant's computers, and he found documents on another of Defendant's computers indicating that Defendant had used variations of the name "Evol" for his business.

Defendant's forensic expert, Tami Loehrs, testified that the Compaq could not have been used to run the F-serve containing the child pornography because -- based on a faulty mathematical assumption -- it had insufficient capacity to hold that many video files, that another user was physically using the computer, and that someone could have gained remote control of Defendant's computer to run the F-serve. She also testified that the way in which law enforcement agents handled the Compaq made the June 2009 testing unreliable. She conceded, however, that there was no evidence that law enforcement agents had planted any evidence on Defendant's computers or turned back the clocks on the computers. In rebuttal, FBI Special Agent Brent Dempsey testified that Defendant had spoken with the government in April 2007, at which time he stated, among other things, that no one else had physical or remote access to his computer and that he had set up the F-serve and offered to trade child-pornography.

I. Rule 29 Motion for Judgment of Acquittal

The Seventh Circuit has noted that "Rule 29(c) does not authorize the judge to play thirteenth juror." Genova, 333 F.3d at 757. "In challenging the sufficiency of the evidence, [a defendant] bears a heavy, indeed, nearly insurmountable, burden." Warren, 593 F.3d at 546; see also United States v. Hatten-Lubick, 525 F.3d 575, 579 (7th Cir. 2008); United States v. Brown, 328 F.3d 352, 355 (7th Cir. 2003). That heavy burden "is compounded when such a challenge rests in large measure on taking issue with the trier of fact's credibility determinations." United States v. Smith, 576 F.3d 681, 687 (7th Cir. 2009). "In short, a reviewing court will set aside credibility determinations only if they are clearly erroneous, which occurs only if the district court has chosen to credit exceedingly improbable testimony." Id. "[T]estimony will be found exceedingly improbable only if it is 'internally inconsistent' or 'implausible on its face.'" Id. (quoting United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir. 1990)); see also United States v. Dean, 574 F.3d 836, 843 n.5 (7th Cir. 2009) ("'We will not upset the jury's credibility determination unless exceptional circumstances exist; that is, it was physically impossible for the witness to observe that which he claims occurred, or impossible under the laws of nature for the occurrence to have taken place at all." (quoting United States v. Johnson, 437 F.3d 665, 675 (7th Cir. 2009), with internal quotations from Johnson omitted)).

Arguing that Agent McDonough's testimony and the computer evidence were unreliable, Defendant asks the Court to enter a judgment of acquittal. It is not the Court's role, however, to second-guess the jury's credibility assessment because Defendant has not shown that either Agent McDonough's testimony or the computer evidence was implausible on its face or defied the laws of nature. See Smith, 576 F.3d at 687; Dean, 574 F.3d at 843 n.5. In fact, witnesses corroborated certain details of Agent McDonough's testimony, and the government offered evidence that Defendant's computers were in substantially the same condition in 2009 as they had been when law enforcement agents had obtained them in 2002. Furthermore, a reasonable jury could have found Defendant guilty on all counts even without Agent McDonough's testimony or the computer evidence that Defendant challenges. The jury, for example, could have found Defendant guilty by relying on evidence that (1) the internet account associated with the F-serve belonged to Defendant's father's business, to which Defendant had access; (2) the government had found incriminating materials on one of Defendant's computers in 2003-2004, before the law-enforcement actions on the computers that Defendant now contests; (3) Defendant made admissions to other law enforcement agents in 2002; and (4) Defendant made incriminating statements during his 2007 proffer. As such, a reasonable jury could have found Defendant guilty on all counts, and Defendant is not entitled to a judgment of acquittal. Moreover, in July 2008 the Court held a lengthy suppression hearing, in which Agent McDonough, among others, testified. The Court found his testimony credible. See United States v. Conrad, 578 F. Supp. 2d 1016, 1022 (N.D. Ill. 2008).

II. Rule 33 Motion for a New Trial

Defendant raises arguments under Rule 33, most of which he has already made in various pre-trial motions.*fn3 The Court hereby incorporates its prior rulings on these issues.

A. Admission of Defendant's Proffer

Defendant argues that the Court improperly allowed Agent Dempsey to testify in the government's rebuttal case regarding a limited portion of Defendant's 2007 proffer statement after Defendant presented evidence to the jury that conflicted with statements that he had made during the proffer. (R. 304-1, Opening Br. at 3-5.) The proffer agreement expressly provided that if Defendant "should subsequently testify contrary to the substance of the proffer, or otherwise present a position inconsistent with the proffer, nothing shall prevent the government from using the substance of the proffer at sentencing or for any other purpose, at trial for impeachment or in rebuttal testimony. . . ." Defendant stated during his proffer that he was the only one with physical and remote access to "the computer" and used "the computer" to set up the F-serve to trade child-pornography videos.

Statements made during plea negotiations, including those made at a proffer, "are inadmissible, but a defendant may waive the right to prevent their use." United States v. Krilich, 159 F.3d 1020, 1025 (7th Cir. 1998) (citing Fed. R. Crim. P. 11(e)(6); Fed. R. Evid. 410); see also United States v. Dortch, 5 F.3d 1056, 1068 (7th Cir. 1993) (finding that, "absent a waiver, proffer statements are generally not admissible against a defendant"). A defendant waives his rights under Rule 11(e)(6) and Rule 410, however, when he signs a proffer letter. See Dortch, 5 F.3d at 1068; United States v. Goodapple, 958 F.2d 1402, 1409 (7th Cir. 1992). "A proffer, of course, is a defendant's (or someone who is hoping not to become a defendant) controlled statement to government agents made to facilitate plea agreements or discussions." United States v. Richardson, 130 F.3d 765, 778 (7th Cir. 1997), vacated on other grounds, 526 U.S. 813, 119 S.Ct. 1707 (1999). It "is a binding contract, enforced according to its terms." United States v. Farmer, 543 F.3d 363, 374 (7th Cir. 2008); see also United States v. Williams, 298 F.3d 688, 694 (7th Cir. 2002). Courts "hold the government to 'the literal terms' of the agreement, as well as the 'most meticulous standards of both promise and performance' to insure the integrity of the bargaining process involved in proffers." Farmer, 543 F.3d at 374 (quoting United States v. Schilling, 142 F.3d 388, 395 (7th Cir. 1998)); United States v. Cobblah, 118 F.3d 549, 551 (7th Cir. 1997). Based on the literal terms of Defendant's proffer, "[i]ntroduction of the statements thus was proper if either his testimony or evidence that he presented through the testimony of others contradicted the proffer." Krilich, 159 F.3d at 1025 (citing Goodapple, 958 F.2d at 1409; Richardson, 130 F.3d at 778; Dortch, 5 F.3d at 1068). "Statements are inconsistent only if the truth of one implies the falsity of the other." Krilich, 159 F.3d at 1025-26.

Defendant presented testimonial evidence that directly contradicted statements that he had made during his proffer, and Defendant therefore waived his right to preclude the government from using the proffer at trial. During Defendant's case-in-chief, Roger Conrad testified that Defendant's Compaq computer had been a business computer at Rogers Machinery. Furthermore, Defendant's expert, Tami Loehrs, testified that she did not believe that the Compaq could have hosted the F-serve because it did not have the capacity to do so and that it would have been possible for someone other than Defendant to have access to the Compaq without Defendant's knowledge. While Defendant argues that the proffer statement does not indicate to which ...

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