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Case No. 16-cr-0519 LHK (NC)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

 Plaintiff,

 v.

JOHNNY RAY WOLFENBARGER,

 Defendant.

Case No. 16-cr-0519 LHK (NC)

ORDER DENYING DEFENDANT’S 

MOTION TO COMPEL 

PRODUCTION OF EVIDENCE

Re: Dkt. No. 28

The question presented is whether the Court should compel the prosecution to 

disclose certain categories of information relating to a search warrant application filed in the 

investigation of this criminal case. Dkt. No. 28. The context for the discovery dispute is 

that the defense is contemplating motions seeking to suppress the evidence seized from 

defendant’s email account. As specified below, the defendant’s motion is DENIED. 

PROCEDURAL BACKGROUND

In a three-count indictment, defendant Johnny Ray Wolfenbarger is charged with 

felonies for (1) attempted production of child pornography (18 U.S.C. § 2251(c) and (e)), 

(2) attempted coercion and enticement of minors (18 U.S.C. § 2242(b)), and (3) receipt of 

child pornography (18 U.S.C. § 2252(a)(2)). Dkt. No. 1. Wolfenbarger is presumed 

innocent and is out of custody on a bond, under the supervision of the Pretrial Services 

Department. 

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Case No. 16-cr-0519 LHK (NC) 2

Defendant’s motion to compel was referred to me by the trial judge, District Court 

Judge Lucy H. Koh. Dkt. No. 34. I held a hearing on January 3, 2018, with the defendant 

and his counsel present.

As a threshold matter, at the hearing I inquired of both parties whether they asserted 

there was any basis for me to recuse myself. Under 28 U.S.C. § 455(a), any magistrate 

judge “shall disqualify himself in any proceeding in which his impartiality might reasonably 

be questioned.” Here, I noted that until July 3, 2011, I was employed as an Assistant U.S. 

Attorney in the Northern District of California, where I worked on some cases prosecuting 

child exploitation offenses, including at least one case in 2010 and 2011 where the 

defendant has the same counsel as Mr. Wolfenbarger in this case. It seemed possible 

(although I cannot recall any examples of this) that the discovery request in this case could 

call for the review of materials in cases that I worked on as a prosecutor. Secondly, I 

reviewed and approved a search warrant application in this case (detailed further below). 

Neither party here asserted that recusal is appropriate. Based on the information known to 

me, I do not find that recusal is necessary. 

Next, I describe Mr. Wolfenbarger’s motion to compel. 

MOTION TO COMPEL

Mr. Wolfenbarger moves to compel the government’s production of any “reports, 

notes, memoranda, emails, drafts, correspondence, or other documents pertaining to the 

development of the probable cause for the search warrant” in this case. Dkt. No. 28 at 4. 

The search warrant application and search warrant referenced in the motion are attached as 

exhibit A to the motion and are no longer under seal. On April 29, 2016, FBI Special Agent 

Ann Trombetta applied for a warrant to search a specified email account,

jrwolfen02@yahoo.com, asserting that there was probable cause to believe that the account 

contained evidence of possession of child pornography. Paragraphs 35-40 of the agent’s 

affidavit are captioned “Probable Cause.” It is this section of the application that Mr. 

Wolfenbarger focuses his discovery motion. 

Paragraph 37 of the application states that the Yahoo! Electronic Crimes Investigative 

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Case No. 16-cr-0519 LHK (NC) 3

Team (ECIT) on or about October 4, 2014, and December 5, 2014, provided a report to the 

National Center for Missing and Exploited Children (NCMEC) concerning electronic 

accounts, operating from the Philippines, that were believed to be “selling images, video, 

and live-streamed abuse via Yahoo! Mail and Yahoo! Messenger.” Paragraph 38, in turn, 

states that the Agent examined four photos in the Subject Account and determined that they 

depicted images of child pornography. Paragraph 40 states that on November 30, 2015, 

Yahoo! reported the Subject Account to NCMEC after eight images of child pornography 

were found in an email dated December 2, 2013. Yahoo! also provided NCMEC with 

subscriber and IP login information for the Subject Account, identifying Wolfenbarger. 

Dkt. No. 28, Ex. A at Par. 40.

I approved the warrant application and issued the warrant on April 29, 2016.

After Mr. Wolfenbarger was charged, the defense requested discovery from the 

prosecution. I have reviewed discovery letters dated Oct. 25, 2017 (Ex. B, defense request), 

Nov. 22 (Ex. C, government response), and Dec. 5 (Ex. E, defense supplemental request) 

attached to the motion. 

In summary, Mr. Wolfenbarger requests information and document in four categories:

(1) The relevance of the information in paragraphs 35, 36, 37, and 39 of the search 

warrant application. (The defense asserts that these paragraphs have no link to 

the Subject Account).

(2) As to the photos identified in the Subject Account and discussed in paragraphs 

38 and 40, information as to what the images depict, who found the images and 

when and how, and when and how they were examined.

(3) Whether or not these photos are related to prior actions by Yahoo! or NCMEC 

in relation to the Subject Account. And,

(4) A list of all cases investigated or filed in this district from 1998 to 2016 [later 

amended to 2010 to 2016] in which the U.S. Attorney’s Office and/or the FBI 

submitted a search warrant affidavit in reliance on a search of an email account 

conducted by Yahoo!, the results of which had been submitted to NCMEC or 

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Case No. 16-cr-0519 LHK (NC) 4

directly to law enforcement, including any specific information providing 

actual or constructive knowledge to the government or the FBI regarding the 

manner in which Yahoo! conducted the search. 

ANALYSIS

The Federal Rules of Criminal Procedure are to be interpreted to provide for the “just 

determination of every criminal proceeding, to secure simplicity in procedure and fairness 

in administration, and to eliminate unjustifiable expense and delay.” Fed R. Crim. P. 2. 

Under Rule 12(b)(4), at the arraignment or “as soon afterward as practicable,” the defendant 

may request notice of the government’s intent to use any evidence that the defendant may 

be entitled to use under Rule 16. In turn, Rule 16 identifies particular materials that the 

government must disclose to the defense, such as the defendant’s oral statements in 

response to interrogation, and particular materials that are not subject to disclosure, such as 

statements made by prospective government witnesses except as provided in the Jencks Act, 

18 U.S.C. § 5000. Under Rule 16(a)(1)(E), the government must disclose items “material to 

preparing the defense.” Finally, under Rule 16(d), in order to regulate discovery, the Court 

may enter any order that is just under the circumstances, including prohibiting the 

introduction of undisclosed evidence.

Due process, as defined by the Supreme Court in cases such as Franks v. Delaware, 

438 U.S. 154, 171 (1978) (requiring evidentiary hearing of search warrant affiant upon 

“allegations of deliberate falsehood or of reckless disregard for the truth, and those 

allegations must be accompanied by an offer of proof”), Brady v. Maryland, 373 U.S. 83, 

87 (1963) (“the suppression by the prosecution of evidence favorable to an accused upon 

request violates due process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution”), and Giglio v. United States, 

405 U.S. 150 (1972) (requiring disclosure of witness credibility information), imposes 

additional disclosure obligations on the prosecution. 

Finally, the Ninth Circuit has explained that the district court has inherent power to 

regulate criminal discovery, complementing the Federal Rules. “A district court possesses 

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Case No. 16-cr-0519 LHK (NC) 5

inherent power over the administration of its business. It has inherent authority to regulate 

the conduct of attorneys who appear before it, to promulgate and enforce rules for the 

management of litigation, to punish contempt, and to remand cases involving pendent 

claims.” Spurlock v. F.B.I., 69 F.3d 1010, 1016 (9th Cir. 1995) (citations omitted). In 

order to effectuate the speedy and orderly administration of justice, “a district court has the 

authority to enter pretrial case management and discovery orders designed to ensure that the 

relevant issues to be tried are identified, that the parties have an opportunity to engage in 

appropriate discovery and that the parties are adequately and timely prepared so that the 

trial can proceed efficiently and intelligibly.” United States v. W.R. Grace, 526 F.3d 499, 

508-09 (9th Cir. 2008). In W.R. Grace, the Ninth Circuit upheld the district court’s order 

that required the Government to disclose a final witness list by a certain deadline, and 

limiting its witnesses to those on the list. It relied on the “well established principle that 

district courts have inherent power to control their dockets” and the fact that “judges 

exercise substantial discretion over what happens inside the courtroom.” Id. at 509 

(quotations and citations omitted). The Ninth Circuit concluded that “all federal courts are 

vested with inherent powers enabling them to manage their cases and courtrooms 

effectively and to ensure obedience to their orders.” Id. (quotations and citations omitted).

At long last, I turn to an analysis of Mr. Wolfenbarger’s particular discovery requests. 

First, at the hearing, the defense conceded that there is not a hook in Federal Rule of 

Criminal Procedure 16 entitling the requested discovery. The better, and closer question, is 

whether due process should compel the government to disclose evidence of its “knowledge 

and acquiescence” to the underlying search of Mr. Wolfenbarger’s email account by Yahoo! 

See United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981). I find that the motion does 

not establish that the requested information is material to Mr. Wolfenbarger’s defense. In 

particular, the request for review of prosecution files from 2010 to 2016 is a speculative 

fishing expedition. Secondly, I find that the government’s disclosures (the search warrant 

and application, the NCMEC CyberTipline Report 7405007 (Ex. D to motion), and 

explanation in response to the motion, Dkt. No. 29 at 8-10), more than sufficiently respond 

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Case No. 16-cr-0519 LHK (NC) 6

to the defendant’s other requests for information about the search warrant application. 

CONCLUSION

Based on the information presented, the defendant’s motion to compel is DENIED. 

The denial is without prejudice to a future request supported by additional information 

indicating the materiality to the defense.

At the end of the hearing, I indicated that I intended to grant in part and deny in part 

the motion. This order varies from that tentative ruling. The change was based on a further 

review of the submitted materials and cases. I did not have any further communication with 

either party after the January 3 hearing.

Any party may object to this non-dispositive order, but must do so within 14 days of 

being served with the order. Fed. R. Crim. P. 59(a). 

IT IS SO ORDERED. 

Date: January 12, 2018 _________________________ Nathanael M. Cousins

United States Magistrate Judge

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