. *

Richard W. Vorder Bruegge
Page 4 of 4

FORMAL PRESENTATIONS AND PUBLICATIONS (continued)

* Photographic Identification of Clothing from Wear and Tear and Manufactured Characteristics - The Band-
Aid Bandit Case (IAV/2001 Workshop)

* Acquiring, Processing, and Protecting Imaging Evidence - Guidelines for Managers, Crime Scene
Personnel, and Laboratory Experts (AAFS/2002 Workshop)

* Photographic Identification of a Native American Artifact Using Visible and Ultraviolet Light (AAFS/2002)

* Comparing the Resolution of Film to Digital Cameras: Cautions for the Forensic Community (AAFS/ SPIE/
MAAFS 2002)

* Imaging Sciences in Forensics and Criminology (chapter in the Encyclopedia of Imaging Science and

Technology, John Wiley & Sons, Inc., New York, 2002)

Forensic Photogrammetry (LAI/2002 Workshop)

Scientific Working Group on Imaging Technologies (SWGIT) Update (IAI/2002 Workshop)

Photographic Identification of Two Native American Artifacts IAV2002 Workshop)

Image Examinations in Child Pornography Cases ("Advanced Child Exploitation Seminar" NAC,

Columbia, SC, 2002)

When is Evidence Considered Manipulated? (Texas Center for the Judiciary 2003 Reg. Conf., El Paso)

Detecting Image Manipulation in a Digital World (LAI/2003 Workshop) (co-author w/ T. Musheno)

Reverse Projection Photogrammetry (IAI/2003 Workshop)

Scientific Working Group on Imaging Technologies (SWGIT) Update (LAV2003 Workshop)

Digital Imaging in the Laboratory (ASCLD 2003 Conference)

SWGIT - The Scientific Working Group on Imaging Technologies (ASCLD 2003 Conference)

Forensic Image and Video Processing (AAFS/2004 Workshop)

Discovering the Electronic Trail of Evil: It’s All About Digital Evidence, Technology, and Crime!

(AAFS/2004 Seminar)

¢ SWGIT Presents: Part 1 - Does Your Forensic Imaging Unit Need Accreditation as a "Digital Evidence
Unit?” (AAFS/2004)

* SWGIT Presents: Part 2 - Forensic Image Processing, Repeatability, and the Myth of Bit-for-Bit Duplicates
(AAFS/2004)

* Facial Comparison Analysis at the FBI (ENFSI-DIWG/2004)

Is,Digital Aerial Photography Admissible? - SWGIT and the Law Enforcement Perspective (ASPRS Panel

Member/2004)

Height Determination using the Perspective Grid Technique (LAI/2004 Workshop)

Detecting Image Manipulation in a Digital World - 2004 Update (IAV/2004 Workshop)

A Look at Statistics in Photographic Comparisons (IAV2004 Workshop)

Scientific Working Group on Imaging Technologies (SWGIT) Update (LAV2004 Workshop)

Courtroom Testimony for Photographic Evidence & Digital Images in the Courtroom (2004 FBI Field

Photographers Conference)


As set forth in Exhibit A, Dr. Vorder Bruegge has approximately 20 years of
experience analyzing digital images, including as a contractor for NASA, where he
examined photographs taken from space of Venus in an attempt to digitally enhance them
as much as technologically possible. Dr. Vorder Bruegge’s current work with the FBI, in
addition to the analysis of images of suspected child pornography, includes digitally
enhancing hundreds videos of bank robberies, murders, kidnappings, etc. For example,
Dr. Vorder Bruegge recently analyzed the video-taped decapitation of Daniel Pearl in
Pakistan for the FBI and other governmental agencies to determine whether the video was

authentic.

Dr. Vorder Bruegge will testify that he, in accordance with standard FBI policy,
performs a summary analysis on each separate video or image examined. The
examination involves, among other things, an analysis of the fluidity of motion, the
perspective of objects and the scene, shapes in the scene, scale and sizes, shadows and
quality of light, continuity of edges, human characteristics such as skin tone, textures,
muscle movement, skin-to-skin contact, skin creases, hair, and the effects of gravity and
physics. It is anticipated that Dr. Vorder Bruegge will explain to the jurors that
“authentic” images of people display these characteristics, and that they are difficult to
impossible to recreate using contemporary computer-generated imagery technology.

This is even more so true for moving videos such as defendant is charged with

13



More specifically, to establish defendant’s guilt of attempted receipt and
possession of child pornography, the government must establish two things. First, the
government must show that defendant knew or believed he possessed a real image of
child pornography, regardless of whether he actually did. See 18 U.S.C.A. § 2252A(b)(2)
(criminalizing attempted possession of child pornography). Belief that an image is real
can naturally be proven circumstantially. See, e.g., United States v. de Francisco-Lopez,
939 F.2d 1405, 1409 (10th Cir. 1991) (“Employing such circumstantial evidence allows
the government to prove a defendant had actual knowledge of an operative fact by
proving deliberate acts committed by the defendant from which that actual knowledge can
be logically inferred.”). Second, to convict an individual of attempt, the government must
identify the existence of a “substantial step” toward completion of the crime. Actual
possession of a sufficiently pornographic image can constitute a substantial step toward
the commission of the crime of child pornography possession. See generally United
States v. Fiedeke, 384 F.3d 407, 412 (7th Cir. 2004). Keeping in mind that only those
who believe their images are real can be convicted, a showing that defendant acquired
“realistic” images helps satisfy the government’s burden of showing that the crime of
possessing child pornography was commenced. The government must therefore be
permitted to present evidence of defendant’s attempted possession of dozens of hour-long

videos and thousands of digital images depicting child pomography.



Richard W. Vorder Bruegge
Page 2 of 4

PROFESSIONAL TRAINING

A program of forensic photography established by the FBI Laboratory that includes hundreds of hours of formal
course work in photographic studies, extensive readings in numerous texts and technical journals on the
subject, laboratory and factory tours, and conducting examinations on casework submitted to the FBI under the
guidance of qualified senior examiners. Partial list of training follows:

A. FBI Academy
1. Laboratory Forensic Examiner Training
2. Basic Photography
3. Crime Laboratory Forensic Photography (3 hrs. credit from U- Va)
4. SOG/SSG Photo Surveillance In-Service
5. Digital Image Processing
B. FBI Laboratory

1. Softcopy Photogrammetry
2. Introduction to Forensic Applications of the Avid Media Composer

C. Director of Imagery Exploitation, National Defence Headquarters (Canada)
1, & 2. Single Photo Perspective Course (Basic& Advanced)
D. Rochester Institute of Technology
1. Electronic Imaging
2. Digital Image Processing
3. Photoshop for Engineers
E. Society of Photo-Optical Instrumentation Engineers
1. Basic Optical Design
F, Polaroid School of Law Enforcement Imaging
1. Analysis of Polaroid Products
G. Nikon Inc.
1. Crime Scene Reconstruction Using AIMS (Automated Invest'n Meas. Sys.)
H. Defense Mapping School (DMS)
1, Stereoscopic Interpretation of Aerial Photographs (SIAP)
I. The SONY Video Institute
1. ABC’s of Video
J. Orange Technologies
1. Basic Photoshop 5.0
K. International Association for Identification
1. Earprint Identification Workshop
L. Ocean Systems
1. Forensic Video analysis on the dTective System from Ocean Systems
M. 3DMetrics
1. Operation of 3DFlash!Cam
N. Henninger Education Center
1/2. AVID 101/110 Intro to Media Composer Editing & Effects
O. WPAFB/NAIC
1. Close Range Photogrammetry Methodologies
P. Peter Ratner/James Madison University
1. Fundamentals of Creating Virtual People



I. DEFENDANT’S “DAUBERT” LLE

Rule 702 of the Federal Rules of Evidence provides that, “[iJf . . . specialized
knowledge will assist the trier of fact to understand evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto. ...” In Daubert, the Supreme Court set forth five factors
to guide a court in assessing the reliability of scientific expert testimony. Those
now-familiar factors are: (1) “whether a theory or technique .. . can be (and has been)
tested”; (2) “whether the theory or technique has been subjected to peer review and
publication”; (3) “the known or potential rate of error”; (4) “the existence and

maintenance of standards controlling the technique's operation”; and (5) whether the

technique or method has met with general acceptance. Daubert, 509 U.S. at 593-94. In
Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 147 (1999), however, the
Supreme Court held that the Daubert 's “gatekeeping” obligation applies not only to
“scientific” expert testimony, but to all kinds of expert testimony. Indeed, as the Court
noted, Rule 702 makes no distinction between “scientific” knowledge and other forms of
specialized knowledge. See id, At the same time, the Supreme Court acknowledged
that, although the fundamental task of the trial court remains the same no matter what
sort of specialized information is proffered, the Daubert factors set forth above ought not
be considered a definitive check list suitable for the evaluation of all kinds of evidentiary

submissions involving specialized knowledge. See id.



children portrayed in pornographic images.” United States v. Farrelly, 2004 WL
2625830, at *3 n.4 (6th Cir. Oct. 25, 2004) (emphasis added) (“The question of whether
the images are virtual or real is one of fact, to be determined by evidence about which
argument can be made to the jury.”); see also United States v. Slanina, 359 F.3d 356 (5"
Cir. 2004) (‘Free Speech Coalition did not establish a broad requirement that the
Government must present expert testimony to establish that the unlawful image depicts a
real child.”) (per curiam); United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir. 2003)
(same); United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (per curiam) (holding
that images alone were sufficient to prove that production of charged images involved use
of a real minor); United States v. Fuller, 77 Fed. Appx. 371, 379 6 Cir. 2003)
(unpublished) (jury could draw its own conclusions from viewing images); United States
y. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002) (despite unconstitutional jury instruction,
examination of charged images showed that no reasonable jury could have found that
images depicted virtual children as opposed to actual children); see also People v.
Normand, 345 Ill. App.3d 736 (2004) (holding that under Illinois child pornography
statute “the trier of fact may make a determination as to how an image was produced from
the image itself”); Porath v. State, 2004 WL 1660763,. At *10 (Tex. App. (14 Dist.) Jul.
27, 2004) (“The Supreme Court in Free Speech Coalition . . . did not establish a broad
requirement that the government must present expert testimony to establish that the

unlawful image depicts a real child.”); State v. Holze, 683 N.W.2d 93 (Wis. App. May 4,



B. ether Depicted Child is “Real” Child is Ju juestion

Defendant correctly recognizes that, with regard to the “completed” possession and
receipt charges (as opposed to the lesser-included attempt charges discussed above), it is
the government’s burden to establish to the jury’s satisfaction that the non-attempt images
and videos depict actual children being sexually exploited. See generally Ashcroft v. Free
Speech Coalition, 535 U.S. 234 (2002) (holding that the government must prove beyond a
reasonable doubt that an image of child pornography depicts a “real” child); United States
y. Hilton, 386 F.3d 13 (1St Cir. 2004) (same). Defendant’s unsupported claims to the
contrary notwithstanding, however, the government is not required to call witnesses who
were actually involved in the manufacture of the child pornography in order to prove its
case.

@ Government May Present Pictures and Videoclips to Jury Without Any
Expert Testimony

Although defendant elects to ignore all case-law inconsistent with his position,
there is uniform support for the position that simply entering the images into evidence can
meet the government's burden of establishing that the persons depicted are actual
children. In fact, all six circuits that have addressed the issue in light of the Free Speech
decision have concluded that the jury can make its decision by simply viewing the images
themselves, and that no expert testimony is required (though it may at the government’s
option of course be presented). As the Sixth Circuit observed last month, “at this time, it

appears that no circuit requires that expert evidence be introduced to prove the reality of

5



Richard W. Vorder Bruegge
Page 3 of 4

CURRENT PROFESSIONAL AFFILIATIONS/COMMITTEES/HONOR SOCIETIES

Scientific Working Group on Imaging Technologies (SWGIT) (Chairman, 2000-present)
Scientific Working Group on Digital Evidence (SWGDE)

American Academy of Forensic Sciences (AAFS) (Member)

Mid-Atlantic Association of Forensic Scientists (MAAFS)

American Society for Photogrammetry and Remote Sensing (ASPRS)

The International Society for Optical Engineering (SPIE)

International Association for Identification (IAI)

American Geophysical Union (AGU)

Sigma Xi

Tau Beta Pi

FORMAL PRESENTATIONS AND PUBLICATIONS

° Determining a Bank Robber's Height from Video using Reverse Projection Photogrammetry, MAAFS, 1995

¢ Some Cautions Regarding the Application of Biometric Analysis and Computer-Aided Facial Recognition in

Law Enforcement , ADPA, 1996 (co-author with T. Musheno)

Reverse Projection Photogrammetry (Photographic Resources Update/1996) (co-author w/ W. J. Stokes)

Photogrammetry as a Means to Detect Photographic Deception (AAFS/1997)

Detecting Fraud and Alteration in Digital Imagery (FBI DISLE/1997)

Photographic Identification of Blue Jeans from Bank Surveillance Film (AAFS/1998)

Digital Imaging and the Examination of Photographic Evidence (IAI/1998)

Noise Reduction of Video Imagery Through Simple Averaging (SPIE/1998)

Photographic Identification of Denim Trousers from Bank Surveillance Film (J Forensic Sci 1999;

44(3):613-622)

Image Processing of Surveillance Video Tape & the Identification of a Mini-Van (AAFS/1999)

Knuckle Crease Patterns & Stray Marks as a Means of Photographic Identification(AV/1999)

Digital Evidence Laboratories (IAFS/1999 Workshop)

Digital Image Processing in Forensic Photographic Examinations (LAFS/1999)

Developing a Digital Evidence Program for your Laboratory (AAFS/2000 Workshop)

Analytical Photogrammetric Analysis of Bank Robbery Surveillance Film (AAFS/2000) (co-author w/ D.A.

Bonner)

* Identification of Individuals through Photographic Facial Comparisons (LACV/2000) (co-author w/ T.
Musheno)

¢ The Scientific Working Group on Imaging Technologies: Developing Practical Guidelines for Law

Enforcement Applications (AV/2000 Workshop)

Image Analysis: Getting the most out of your surveillance images (NATIA/2000)

Techniques in Forensic Image Comparisons (Toronto Police Forensic Identification Seminar/2001)

Techniques in Forensic Photogrammetry (Toronto Police FIS/2001)

The Scientific Working Group on Imaging Technologies (SWGIT) and the Future of Imaging in Law

Enforcement (Toronto Police FIS/2001)

° Forensic Photogrammetry (Forensic Video and the Law/May 2001 and October 2001)

© Scientific Working Group on Imaging Technologies (SWGIT) Update (AI/2001 Workshop)

eo eeee



presenting the testimony of a physician that characteristics such as the proportions, body
fat distribution, and skin tone of the children depicted are consistent with those of real
children. In this case, pediatrician Dr. Sam Wassif is expected to testify that the images
he reviewed are of real minor children being sexually molested. Testimony from such a
medical expert is helpful in establishing the age of the child. Moreover, such testimony
can demonstrate to the jury that the images in question are of real children. For example,
in United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987), the First Circuit held that the
government need not present morphing expert testimony. The court also noted that
during the direct examination of the pediatrician, the following exchange took place,

which would also help negate such speculation:

Q[:] And why do you conclude that, Doctor? People can doctor photographs.
People can alter photographs. Why do you conclude that these are not altered
photographs or.perhaps composites of adult genitalia, let’s say, with children’s
torsos and arms and legs and heads?

A[:] Well, I think that that kind of conglomeration of parts, body parts, would be
very bizarre appearing, because of the differences in size, texture. The gestalt
would be wrong; in other words, the total picture would not be of a normal
human being, most likely.

Id. at 1019. See also United States v. Bender, 290 F.3d 1279, 1282 (11th Cir. 2002)
(pediatrician testified that “photographs appeared to portray real children”); United
States v. Vig, 167 F.3d 443, 449-50 (8th Cir. 1999) (jury could infer from images and

pediatrician's testimony that children depicted were real).



A
4 3
UNITED STATES DISTRICT COURT oO -_ PAs)
NORTHERN DISTRICT OF ILLINOIS . = BE
. EASTERN DIVISION Laat < OD
So a
UNITED STATES OF AMERICA ) B by
) No. 03 CR 1032 v %S
v. )
) Hon. John F. Grady
H. MARC WATZMAN, also known )
as “Marvin Barash,” )
“Herb Watman,” and ) Uy,
*“Chiefer4@doglover.com” ) a ny
oT F_F 24,0
To: Thomas Anthony Durkin Patrick W. Blegen
Durkin & Roberts 53 W. Jackson, Suite 615

53 West Jackson Boulevard, Suite 615 Chicago, IL 60604
Chicago, IL 60604

PLEASE TAKE NOTICE that on, Wednesday, December 01, 2004, the
undersigned filed with the Clerk of this Court the following document
in the above captioned case: GOVERNMENT’S RESPONSE TO DEFENDANT H. MARC
WATZMAN’S Daubert FILING;, service of which is being made upon you. *

Respectfully submitted,

PATRICK J. FITZGERALD
United States Attorney

BY: ws hatbewe But [op

T. MARKUS FUNK

Assistant United States Attorney
219 South Dearborn - 5000
Chicago, Illinois 60604

(312) 886-7635

STATE OF ILLINOIS )
} ss
COUNTY OF COOK }

Clara Long, being first duly sworn on oath deposes and says that she is
employed in the Office of the United States Attorney for the Northern
District of Illinois; and that on December 01, 2004, she caused the foregoing
Notice and the above-described ed to the above named
individual(s)on said date.

before me

this lst day of December, 2004

"OFFICIAL SEALTM
Peggy M. Zabinski
Notary Public, State of Illinois
‘My Commission Exp. 06/04/2006

Nees



An example of such appropriate use of such expert testimony to meet the government’s

burden of proof appears in United States v, Rearden, 349 F.3d 608 oe Cir. 2003):

The government offered the testimony of David Mark
Verrier Jones, an employee of a visual effects studio, whom
the court accepted as an expert in the creation of visual
effects based on his training and experience in the film
industry. Jones testified that in his opinion, the images

" transmitted by Rearden had not been manipulated in any
manner. He indicated that they had not been composited
(which involves the altering of images by, for example,
transferring the head of one person to the body of another) or
morphed (which in Jones's view involves the creation of an
intermediate image from two other images). Jones stated
that it was beyond the limits of modern computer graphics to
create a completely artificial picture of a believable photo-
realistic human being (except, perhaps, of people who are
very small in the background). Rearden put on no evidence
to the contrary. . .. He [Jones] examined the images and
opined that they were not manipulated, that any attempted
creation of a digital photo realistic human being would be
teadily apparent, and that these images were entirely
consistent as photographs. Based on this testimony the trier
of fact could reasonably conclude that the government had
carried its burden of proving that the images depicted actual
children.

Id, at 613-14.

Similarly, in United States v. Marchand, 308 F. Supp.2d 498 (D.N.J. 2004), a
digital imaging expert from the FBI Forensic Audio Visual and Image Analysis Unit
(FAVIAU) located in Quantico, Virginia, testified on behalf of the government and in
rebuttal to the defense’s expert. As the court stated in Marchand:

The Government introduced proof that [computer]-created
images do not look even remotely realistic. No [computer]-

11



Using the Daubert factors as a point of departure, this court is free to fashion an
approach more precisely tailored to an evaluation of the particular evidentiary
submission before it. “[T]he measure of intellectual rigor will vary by the field of
expertise and the way of demonstrating expertise will also vary.” Tyus v. Urban Search
Mgmt., 102 F.3d 256, 263 (7th Cir. 1996). Indeed, “genuine expertise may be based on
experience or training.” Id, As the Seventh Circuit pointed out in United States v.
Allen, 269 F.3d 842, 846 (7th Cir. 2001), the Advisory Committee notes to Rule 702
specifically provides that “[i]n certain fields, experience is the predominant, if not the
sole, basis for a great deal of reliable expert testimony.” Fed. R. Evid. 702, 2000
Advisory Committee Note (emphasis added). For example, trial courts now routinely
admit the testimony of law enforcement officers about the modus operandi of narcotics
dealers. See, e.g., United States v. Doe, 149 F.3d 634, 636- 38 (7th Cir. 1998); United
States v. Hubbard, 61 F.3d 1261, 1274-75 (7th Cir. 1995); United States v. Lipscomb, 14
F.3d 1236, 1239, 1242 (7th Cir. 1994). Experts in narcotics dealing typically are
qualified based solely upon their field experience. See United States v. Allen, 269 F.3d
842, 846 (7th Cir. 2001).

It is likewise well-settled that where, as here, child pornography images and
videoclips were produced after computer “morphing” technology became available,
opinion testimony from a digital imaging expert that the charged images are not

“morphed” or wholly computer generated is entirely appropriate as an aid to the jury.

10



2004) (same). Defendant’s claim that it is “impossible for a lay person to determine
whether the videos or still images contain actual children,” Defendant’s Motion at 3,
therefore flies in the face of all current circuit court decisions that have addressed this
issue. The government must therefore be permitted to introduce all of the images and
videos in defendant’s collection that depict what appears to be child pornography so that
the jury can make its final determination as to whether the images in fact depict real
minors.

(ii) Presence of Embedded Data

In some instances, even a cursory examination of a digital image can reveal
significant evidence that the image is a depiction of a real child, rather than an image of a
wholly or partially computer-generated minor. Images created with a digital camera may
contain metadata in the form of an Extended File Information (EXIF) header. An EXIF
header may include such information as the make and model of the camera used to take
the picture and the date and time the picture was taken. If the questioned image has an
EXIF header intact, it guts any claim that an image was computer-generated or altered.
Additionally, because metadata is a broad class of information, the metadata contained in
an image may also indicate whether alterations were performed on an image by programs
such as Adobe Photoshop.

(iii) Physician Testimony

The government may also support the proof that images depict real children by



one of the persons involved in the manufacturing the charged pornography. Defendant’s
arguments are fatally flawed for the following reasons:
A. Defend: I ar: it tem,
The government in its case-in-chief intends to offer the testimony of Dr. Sam
Wassif (a pediatrician) and Dr. Richard Vorder Bruegge (an FBI Forensic Image Analysis

expert) to support the government’s position that certain images contained in defendant’s

collection depict actual minors being sexually exploited. See Exhibit B (CVs of Dr.
Wassif and Dr. Vorder Bruegge). Because of the vast size of defendant’s child
pornography collection, however, the government will not offer such expert testimony as
to each image and video found in defendant’s possession. The government will not offer
such expert testimony because, as set forth below, such testimony is simply not required.
For one, defendant in the Second Superseding Indictment is charged with attempt
offenses conjunctively with the substantive receipt and possession offenses. As
recognized in United States v. Starr, 2002 WL 31098482 (N.M. Ct. Crim. App., Sep. 16,
2002), “[e]ven if the Government's evidence--whatever form it may take--is insufficient
to prove beyond a reasonable doubt that the individuals captured in the case-based
photographs are real people, vice computer-generated, nonhuman images, a conviction of
the lesser-included offense of an attempt . . . is still a viable possibility. . ..” See also
United States v. Angle, 234 F.3d 326, 342-43 (7th Cir. 2000) (defendant charged with

attempted receipt and possession of child pornography).



receiving and possessing.' Human motion in an extended video is virtually impossible to
replicate in a realistic manner. Movies such as Shrek, Finding Nemo, Final Fantasy, and
Polar Express represent the state-of-the-art in video and motion picture technology, with
each costing up to $100,000,000 or more to produce. Nevertheless, they do not come
close to replicating an actual human being. Many of the videos found in defendant’s
possession were quite lengthy, including some that were over an hour in length. It is
anticipated that Dr. Vorder Bruegge will testify that one of these videos was comprised of
over 67,000 individual images. Dr. Vorder Bruegge will testify that it is would cost
millions of dollars and thousands of man-hours to “artificially” or digitally produce such a

video, and even then the video would not look realistic.

‘As one author aptly noted:

To date, no wholly computer pornography generated child image has been
produced that is virtually indistinguishable from a real image. Experts in the
relevant community have searched for such an image and come away empty
handed. If such an image existed it would be showcased by every pedophile in the
country who was prosecuted for child pornography. As one commentator has
noted, "Every computer generation has its own mythology," and this generation’s
is the existence of virtually indistinguishable images that are wholly computer
generated.

Susan Kreston, Defeating the Virtual Defense in Child Pornography Prosecutions, 4 J. High

Tech. L. 49 (2004) (citations omitted).
14



ea eae

tame gate “Somer

vesegmyerne

FBI Expert Witness

* CURRICULUM VITAE Updated: November 10, 2004

Richard W. Vorder Bruegge, Ph.D.

Federal Bureau of Investigation

Forensic Audio, Video, and Image Analysis Unit (FAVIAU)
Engineering Research Facility, Building 27958A

Quantico, VA. 22135

(703) 632-6315 E-mail: rvorderbruegge@fbiacademy.edu

PROFESSIONAL EXPERIENCE

Jan 1995 - present

Oct 1990 - Dec 1994

EDUCATION

Forensic Scientist/Examiner of Questioned Photographic Evidence
Federal Bureau of Investigation, Investigative Technology Division, Quantico, VA.

Conducts examinations on questioned and known photographic evidence, which includes
film, video, and digital images. Supervises technical staff in forensic examinations.
Manages the National Automotive Image File and the Child Exploitation and Obscenity
Reference File. Performs research in the forensic analysis of imagery. Provides technical
assistance to law enforcement organizations in U.S. and abroad. Serves on multiple
external and FBI intemal working groups related to imaging policies and standards.

Staff Scientist
Science Applications International Corporation (SAIC), Washington, D.C.

Provided scientific and technical support to the National Aeronautics and Space
Administration (NASA) Solar System Exploration Division in the development of
missions of exploration to solar system objects including planets, comets, and asteroids.
Provided scientific and technical support in the development and operations of the
Department of Defense’s Clementine mission to the Moon. Served as Principal
Investigator under the NASA Venus Data Analysis Program.

Sep 1985 - May 1991

Sep 1981 - May 1985

Brown University

Providence, RI

Master of Science (Sc.M.) and Ph.D.
Major: Geological Sciences

Brown University
Providence, RI

Bachelor of Science (Sc.B)
Major: Engineering

FORENSIC EXAMINATION / TESTIMONY EXPERIENCE

Have worked full time in FBI laboratories dedicated to imaging science for over nine years. Conducted
video/image analysis examinations in over 500 criminal, civil and administrative matters, which includes

submissions from local, state and federal law enforcement organizations. Have testified as an ex!
Municipal, State, and Federal Courts in over 40 instances.



Id. at 4 (emphasis added). As discussed below, however, defendant’s requests are
meritless and must be denied.
L THE GOVERNMENT MAY ENT EVIDENCE THAT THI:

DEFENDANT RECEIVED AND POSSESSED CERTAIN IMAGES

WITH XPERT TESTIMONY THAT RE OF
ACTUAL MINORS

The Second Superseding Indictment charges defendant with one count of
Possession, and attempted possession, of hundreds of images and videos depicting child
pornography (Count One), with nine counts of receipt, and attempted receipt, of child
pornography (Counts Two - Ten), and with one count of transferring money overseas to
further the distribution and manufacture, and attempted distribution and manufacture, of
child pornography (Count Eleven). See Exhibit A (Second Superseding Indictment).
Defendant now argues that the government should only be permitted to make reference to
those images in defendant’s possession satisfying the completed crime in that they
“contain actual minors,” Defendant’s Motion at 1. According to defendant, the
government “has not provided a basis for a jury to conclude beyond a reasonable doubt
that the images charged in the indictment involve actual minors,” “it is impossible for a
lay person to determine whether the video or still images contain actual minors,” and
“without participating in the production of the seized images or videos, an expert cannot
know whether or not the visual depictions were created using an actual minor.”
Defendant’s Motion at 1-5. Defendant, in short, contends that the government can never

prosecute a child pornography case without the in-court testimony of either the victim or

2



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

%
EASTERN DIVISION 2 3
- re)
UNITED STATES OF AMERICA ) CO es ~o
) No. 03 CR 1032 wi Be
v. ) Hon. John F. Grady - ar)
we 4
H. MARC WATZMAN , also known _—+?) y) 3 °?
as “Marvin Barash,” ) Uy,
“Herb Watman,” and ) &p py
“Chiefer4 @doglover.com” ) 2y 77]

GOVERNMENT’S RESPONSE TO
DEFENDANT H. MARC WATZMAN’S DAUBERT FILING

The UNITED STATES OF AMERICA, by its attorney, PATRICK J.
FITZGERALD, United States Attorney for the Northern District of Illinois, submits the
following response to defendant H. Marc Watzman’s October 12, 2004, Daubert Filing.
Defendant in his filing argues that the government should be precluded (1) from making
“any reference to any digital images seized from the Defendant that do not contain actual
minors,” Defendant’s Motion at 1; and (2) from presenting any expert testimony that the
images seized from his computers and disks are of “real” children (as opposed to digitally
“morphed” children) because, according to defendant, “it is doubtful that an expert can
make such a determination even after review and analysis of the images and videos,” id.
at 3-8. As defendant sees it, “the only suitable witness to authenticate the digital images

in this case would be individuals who participated in the creation of the particular image.”


created image was adduced of a single realistic-looking
human, even fully clothed. ... Not one looked like a real
person. Yet, every picture that the Defendant possessed
appears absolutely real. Even the lighting and the shadows in
each of the pictures is perfectly consistent with the various
backgrounds contained in the images, a highly difficult feat
to accomplish virtually. Even the Defendant’s computer
expert, when asked to point out those images that did not
look like real photographs, could only point to one image,
G121, and no others. Moreover, the expert conceded that
when he looked at the pictures, he thought they were real.

Id, (citations omitted).

Here, the government has provided defendant with notice that it intends to present
the testimony of Dr. Richard Vorder Bruegge, an expert in Forensic Image Analysis at the
FBI’s Forensic Audio, Video, and Image Analysis Unit in Quantico, VA. See Exhibit A
(Dr. Vorder Bruegge’s CV). Dr. Vorder Bruegge has been certified in federal and state
courts as an expert in forensic image analysis examination on over 40 occasions, and has
been certified as an expert in child pornography involving post-Ashcroft issues and
related manipulated imagery on approximately 13 occasions. Dr. Vorder Bruegge has
examined at least 15,000 still images, as well as hundreds of videos, featuring child
pornography. Dr. Vorder Bruegge has been certified as an expert in, among others, the
federal courts in the District of Maryland, the Western District of Louisiana; the Western
District of Missouri, the Eastern District of Michigan, and the District of Minnesota. In
no instance has Dr. Vorder Bruegge been found to lack the requisite expertise after being

offered to the court as an expert.

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I. CONCLUSION

As set forth above, the government must be permitted to introduce the images of
child pornography seized from defendant’s residence. Moreover, Dr. Richard Vorder
Bruegge should, pursuant to Fed. R. Evid. 702, be qualified as an expert in the area of

Forensic Image Analysis.

Respectfully submitted,

PATRICK J. FITZGERAL]
United States Attorney

Vin END

VIRG! ALL
Assistant United States Attorneys
219 S. Dearborn St., 3rd Floor
Chicago, Illinois 60604

(312) 353-5300

By:

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