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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

v.

ANDRE EUGENE SHAW,

Defendant.

Case No. 3:15-cr-00227-SI

OPINION AND ORDER

Billy J. Williams, United States Attorney, and Gary Y. Sussman, Assistant United States 

Attorney, United States Attorney’s Office for the District of Oregon, 1000 S.W. Third Avenue, 

Suite 600, Portland, Oregon 97204. Of Attorneys for United States of America.

Richard L. McBreen III, OWENS & MCBREEN, P.C., 319 S.W. Washington Street, Suite 614, 

Portland, OR 97204. Of Attorneys for Defendant Andre Eugene Shaw.

Michael H. Simon, District Judge.

Defendant Andre Eugene Shaw (“Defendant”) was indicted in this criminal action for

possession of false identification cards and supplies for making false identification cards, among 

other charges. Before the Court is Defendant’s Motion to Compel Informant’s Identity and 

Defendant’s Motion to Compel Disclosure of Mirror Images of Computer Hard Drives. For the 

reasons that follow, the Court defers ruling on Defendant’s Motion to Compel Informant’s 

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Identify (Dkt. 22) pending an in camera hearing. Defendant’s Motion to Compel Disclosure of 

Mirror Images of Computer Hard Drives (Dkt. 23) is DENIED.

BACKGROUND

A search warrant for Defendant’s home was signed on December 17, 2014. The warrant 

authorized the seizure of multiple items including records, documents, or contraband relating to 

the production, transportation, distribution, and possession of child pornography; selling and 

buying of children; blackmail; interstate communication of threats; receiving proceeds of 

extortion; and fraud and related activity in connection with computers and identification 

documents. The Government executed the warrant on December 18, 2014. Law enforcement 

officials seized, among other things, multiple firearms, silencers, ammunition, computers and 

other electronics, false identification cards, and supplies for making false identification cards. 

On June 17, 2015, a federal grand jury returned an Indictment charging Defendant with 

one count of possession of an unregistered firearm, a violation of 26 U.S.C. § 5861(d); one count 

of possession of unregistered silencers, a violation of 26 U.S.C. § 5861(d); one count of 

possession with intent to use unlawfully five or more false identification documents, a violation 

of 18 U.S.C. § 1028(a)(3), (b)(2); and one count of possession of a document-making implement 

or authentication feature with intent to produce a false identification document, in violation of 

18 U.S.C. § 1028(a)(5), (b)(1).

DISCUSSION

A. Motion to Compel Informant’s Identity

1. Legal Standard

“The government has a limited privilege to withhold an informant’s identity.” United 

States v. Henderson, 241 F.3d 638, 645 (9th Cir. 2001) (citing Roviaro v. United States, 353 U.S. 

53, 59-61 (1957)). “This privilege serves several important law enforcement objectives, 

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including encouraging citizens to supply the government with information concerning crimes.” 

Id. The defendant bears the burden of demonstrating the need for disclosure. United States v. 

Williams, 898 F.2d 1400, 1402 (9th Cir. 1990). To obtain disclosure, the defendant “must show 

more than a ‘mere suspicion’ that the informant has information which will prove ‘relevant and 

helpful’ to his defense, or that it will be essential to a fair trial.” Henderson, 241 F.3d at 645

(quoting United States v. Amador-Galvan, 9 F.3d 1414, 1417 (9th Cir. 1993)). Whenever the 

defendant makes a “‘minimal threshold showing’ that disclosure would be relevant to at least one 

defense,” the court must hold an in camera hearing on disclosure. Id. (quoting United States v. 

Spires, 3 F.3d 1234, 1238 (9th Cir. 1993)). 

In determining whether disclosure is warranted, the court must balance: (1) the extent to 

which disclosure would be relevant and helpful to the defendant’s case; and (2) the government’s 

interest in protecting the identity of a particular informant. Spires, 3 F.3d at 1238. The court 

“must consider ‘the public interest in protecting the flow of information against the individual’s 

right to prepare his defense.’” Id. (quoting Roviaro, 353 U.S. at 62). 

2. Argument

Defendant moves to compel the Government to produce the identity of a confidential

informant (“S1”). Defendant asserts that S1’s identity is relevant to Defendant’s guilt or 

innocence, and that the disclosure would be helpful to his defense and essential to the fair 

determination of his case. Defendant additionally requests the “informant file,” including:

1. The name and date of birth of S1;

2. Copies of any agreement between S1 and the Government;

3. Copies of documents relating to S1’s personal and criminal history;

4. How much money S1 is paid for his information and activities;

5. Any instructions to S1 regarding his work with law enforcement;

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6. Any documentation of past contacts S1 has had with Defendant;

7. Whether law enforcement has declined to prosecute or arrest S1 in exchange for 

his work and other benefits of the informant’s cooperation.

Defendant asserts that disclosure of information in the “informant file” is constitutionally 

required because it is essential to determining Defendant’s guilt or innocence in this case.

According to the parties, in Special Agent Charles Dodsworth’s (“S/A Dodsworth”) 

affidavit in support of the December 17, 2014 search warrant for Defendant’s residence, S/A 

Dodsworth describes information that S1, who is involved in the production and distribution of 

child pornography, provided to law enforcement investigators. S1 told law enforcement

investigators that someone using the screen name “Reedemer” was blackmailing him online.

“Reedemer” was aware of S1’s child pornography activities and threatened to expose those 

activities unless S1 paid him. S1 reported that “Reedemer” also used him as a conduit to receive 

blackmail payments from other “Reedemer” victims. According to S1, the blackmail payments 

were sent to S1 in the form of wire money transfers. S1 would then send the money to a person 

in Oregon who S1 knew as “Joe.” In order to make the anonymous financial transactions, S1 

received false identification cards from “Joe.” According to S1, “Reedemer” provided the false 

identification cards to “Joe.” Law enforcement investigators assert that “Joe Stanis” is an alias 

used by Defendant. 

The Government additionally asserts that “Reedemer” demanded photographs of S1’s 

daughter. S1 was instructed to turn his daughter over to “Joe,” which he did on two separate 

occasions. It was S1’s understanding that “Joe,” or others that “Joe” knew, would take sexually 

explicit photographs of S1’s daughter. S1 was instructed to buy costumes, props, and a camera

for the photography sessions, which S1 provided to “Joe” and “Joe” returned to S1. Investigators 

later found Defendant’s palm print on a box containing the costumes and camera.

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Defendant argues that the disclosure of S1’s identity is necessary because S1 was a 

participant in the alleged criminal conduct, as well as a witness. For example, S1 may have 

information that could establish whether the false identification cards were made by Defendant 

or by another individual. Additionally, S1 may have information regarding whether Defendant 

had knowledge that what he was transporting to S1 were false identification cards. Thus, 

Defendant argues that S1 has information “‘relevant and helpful’ to his defense, or that will be 

essential to a fair trial.” Henderson, 241 F.3d at 645 (quoting Amador-Galvan, 9 F.3d at 1417).

The Government responds that it anticipates seeking additional charges against 

Defendant stemming from his alleged role in blackmailing and extorting other individuals, as 

well as his alleged role in the production of child pornography involving S1’s daughter. The 

Government asserts that S1 will be a direct victim in at least some of these counts and a 

percipient witness to others. Thus, the Government states that if a grand jury returns a 

superseding indictment, the Government will provide Defendant with S1’s identity, although not 

with his date of birth, and with discovery of statements made by and evidence obtained from S1. 

The Government represents that it will provide Defendant with a copy of any plea or cooperation 

agreement reached with S1, as well as S1’s criminal history.1

The Government, however, does not provide any date by which they intend to seek 

additional grand jury proceedings. Additionally, the Government asserts that it will disclose S1’s 

identity only if grand jury returns a superseding indictment. Thus, any voluntary disclosure by 

the Government is speculative at this time. 

Two of the four charges against Defendant relate to the alleged possession and creation of 

false identification cards. According to S1, “Reedemer” provided Defendant with false 

 

1 Because S1 was not a paid informant, the Government asserts that there are no records 

of payment for information or activities.

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identification cards, which Defendant in turn provided to S1. Thus, S1 may have information that 

could establish whether the false identification cards were made by Defendant or by another 

individual, and that could establish whether Defendant had knowledge that what he was 

transporting were false identification cards. Accordingly, Court finds that Defendant has made a 

“‘minimal threshold showing’ that disclosure would be relevant to at least one [of his] 

defense[s].’”2 Henderson, 241 F.3d at 645 (quoting Spires, 3 F.3d 1238). Thus, the Court is 

required to hold an in camera hearing to determine whether disclosure of S1’s identity to 

Defendant is warranted. Id.

B. Motion to Compel Disclosure of Mirror Images of Computer Hard Drives 

1. Legal Standard

FRCP 16(a)(1)(E)(i) provides that a criminal defendant is entitled to discovery of 

documents and tangible things that are within the government’s possession, custody, or control if 

the requested information is “material to preparing the defense.” Information is in the 

government’s possession if the prosecutor “‘has knowledge of and access to the documents 

sought by the defendant.’” United States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010) (quoting 

United States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995)). In order to obtain discovery under 

FRCP 16, a defendant must make a prima facie showing of materiality. United States v. Mandel, 

914 F.2d 1215, 1219 (9th Cir. 1990). “Neither a general description of the information sought 

nor conclusory allegations of materiality suffice; a defendant must present facts which would 

tend to show that the Government is in possession of information helpful to the defense.” Id.

 

2

The Court notes that the Government makes no argument to the contrary.

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2. Argument

Defendant moves to compel the production of mirror images of hard drives seized during 

the December 18, 2014 search of his home. Defendant asserts that information contained on the 

hard drives is material to preparing his defense against the charges of alleged possession and 

creation of false identification cards. That is, Defendant represents that the hard drives contain 

information for relevant files including the dates of their creation, modification, and access, and 

that Defendant will use this information to counter prosecution arguments regarding the creation 

of the allegedly false identification cards and Defendant’s intent in their creation and purported 

use. Defendant additionally asserts that that information from the hard drives is material as it 

may help him establish that the skills used in the commission of the alleged offenses were not 

sophisticated. The Court finds that these facts satisfy the prima facie showing of materiality 

required under FRCP 16. See Mandel, 914 F.2d at 1219.

The Government responds that the hard drives are exempt from FRCP 16 disclosure 

under the Adam Walsh Child Protection and Safety Act (the “Act”), 18 U.S.C. § 3509. The Act 

provides, in relevant part:

(1) In any criminal proceeding, any property or material that 

constitutes child pornography . . . shall remain in the care, custody, 

and control of either the Government or the court.

(2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal 

Procedure, a court shall deny, in any criminal proceeding, any 

request by the defendant to copy, photograph, duplicate, or 

otherwise reproduce any property or material that constitutes child 

pornography . . . so long as the Government makes the property or 

material reasonably available to the defendant.

(B) For the purposes of subparagraph (A), property or material 

shall be deemed to be reasonably available to the defendant if the 

Government provides ample opportunity for inspection, viewing, 

and examination at a Government facility of the property or 

material by the defendant, his or her attorney, and any individual 

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the defendant may seek to qualify to furnish expert testimony at 

trial.

18 U.S.C. § 3509(m). The Government asserts that each of the hard drives that Defendant seeks 

copies of is encrypted and that Defendant has refused to decrypt any of them.3Thus, although the 

Government has a valid warrant to search the hard drives, it has been unable to access the data 

located on the drives. As a result, the Government does not know whether the hard drives

actually contain child pornography. Nonetheless, the Government argues that the hard drives are 

exempt from disclosure under the Act.

Defendant recognizes that courts have found a sufficient basis to apply the Act where 

“there is an indictment [charging a defendant with possession of child pornography because] a 

federal grand jury has already found probable cause to believe that the material at issue is child 

pornography.” United States v. Battaglia, 2007 WL 1831108, at *2 (N.D. Ohio June 25, 2007). 

Here, however, Defendant has not been indicted on any charges relating to child pornography. 

The Government does not provide the Court with any authority for the proposition that material 

may be protected under the Act even though there has been no determination—preliminary or 

otherwise—that the material is or may be child pornography.

The Government asserts that Defendant should be required to either decrypt the hard 

drives or forego their disclosure under FRCP 16. To do so, however, may be to require 

Defendant to choose between giving up his Fifth Amendment right against self-incrimination and 

giving up his right to discovery under the Federal Rules of Criminal Procedure. The Court will 

 

3 As the Government notes, courts are reluctant to order a defendant to decrypt an 

encrypted hard drive because it may implicate the defendant’s Fifth Amendment right against 

self-incrimination. See In re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335, 1341 (11th Cir. 

2012) (holding that the defendant’s “decryption and production of the hard drives’ contents 

would trigger Fifth Amendment protection because it would be testimonial, and that such 

protection would extend to the Government’s use of the drives’ contents.”).

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not order Defendant to make that choice and thus declines to order Defendant to decrypt the hard 

drives. 

The Government adds in its response to Defendant’s motion that the Government will 

provide Defendant’s counsel and his expert “reasonable access to, and an ample opportunity to 

examine, any drive or device that does contain child pornography at a government facility, just 

as it does in every child pornography case.” Dkt. 24 at 9 (emphasis in original). Here, as 

discussed, it is unknown whether the hard drives contain child pornography. Defendant has not 

made a showing, however, of why the opportunity to access and examine the hard drives at a 

government facility would be insufficient.4 Accordingly, Defendant’s Motion to Compel 

Disclosure of Mirror Images of Computer Hard Drives is denied, but the Government must 

permit Defendant’s counsel and expert reasonable access to and an ample opportunity to 

examine the hard drives that are the subject of this motion at an appropriate government facility.

5

CONCLUSION

The Court defers ruling on Defendant’s Motion to Compel Informant’s Identity (Dkt. 22)

pending an in camera hearing on disclosure of the confidential informant’s identity. Defendant’s 

Motion to Compel Disclosure of Mirror Images of Computer Hard Drives (Dkt. 23) is DENIED. 

It is further ordered that the parties shall file within 30 days a status report updating the Court on 

these issues.

 

4 Defendant has leave to renew his Motion to Compel Disclosure of Mirror Images of 

Computer Hard Drives if he believes that he is able to make such a showing.

5

The Court reiterates that it is not ordering Defendant to decrypt the hard drives and 

make them accessible to the Government.

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IT IS SO ORDERED.

DATED this 1st day of March, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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