DEFENDANT DANIEL POULIN REPRESENTED BY DANIEL POULIN, DAVID J. VAN DYKE HORNBLOWER, LYNCH, RABASCO & VAN DYKE, LYNNE A. WILLIAMS
PLAINTIFF USA REPRESENTED BY GAIL FISK MALONE, MARGARET D. MCGAUGHEY, JAMES L. MCCARTHY
ORDER ON MOTION FOR RECONSIDERATION
JOHN A. WOODCOCK, JR. CHIEF UNITED STATES DISTRICT JUDGE
It is difficult to know why Daniel Poulin and his attorney are so brimming with a sense of injustice. From his girlfriend's daughter's early to late teens, Mr. Poulin surreptitiously videotaped her while she was naked in a series of family bathrooms. Utterly obsessed for years with this young girl, Mr. Poulin ended up constructing a highly elaborate secret studio with multiple hidden pinhole cameras in the walls of the bathroom and he recorded countless hours of her most private moments. Initially unsophisticated, as time went on, he constructed an elaborate studio in the family bathroom with multiple cameras angled to capture her genitals. Toward the end, he installed a toilet camera and videotaped her going to the bathroom. Mr. Poulin's production of pornography was found out. His girlfriend discovered four discs on the ground outside their home, put the discs in a discplayer, and recognized her daughter as the naked female. Immediately after his activity was discovered, Mr. Poulin confessed to a number of friends that he had been taping her for years, that he was sick, and that he needed help. He assisted law enforcement in locating the pinhole cameras and consented to the seizure of a cache of digital media discs in his mother's attic. In light of this accumulated evidence, it was virtually inevitable that Mr. Poulin would be charged, convicted, and sentenced for his criminal actions.
Mr. Poulin was indicted federally with the production of child pornography and was well represented by an exceptionally able Maine lawyer. He waived jury trial, and at the close of a four-day trial the Court found Mr. Poulin guilty as charged. Even though his guideline sentence was between 210 and 262 months, the Court sentenced Mr. Poulin to the statutory minimum of 180 months incarceration, the most lenient sentence it could legally impose. Mr. Poulin appealed the guilty verdict to the Court of Appeals for the First Circuit and the First Circuit affirmed the conviction.
Despite overwhelming evidence that Mr. Poulin is actually guilty of this crime, confessed to much of it, was properly convicted, and received the most lenient sentence that the law allows, his attorney appears to believe that Mr. Poulin, not the young woman, is the victim of his own crime. His current defense lawyer has written increasingly hot memoranda, proclaiming his actual innocence, accusing the prosecutor of all manner of misconduct, charging law enforcement with manufacturing evidence, and blasting the Court for not agreeing with her. Her latest barrage includes an accusation that during the pendency of the original action, the Court improperly forced the defense to abandon legitimate complaints about egregious police and prosecutorial misconduct, refused to hold an evidentiary hearing on the Government’s misconduct, and dismissed the motion to dismiss for prosecutorial misconduct. She now charges that the Court is completely mischaracterizing her arguments, utterly mischaracterizing the record, completely ignoring the Government’s horrendous pattern of bad faith manipulation of the circumstances, whitewashing her persuasive claims of a fraud on the Court, presenting a false rendition of the events in this case, and misunderstanding the applicable standards of review.
Although nonplussed by counsel’s rhetorical indignation, the Court will address once again her angry assertions in a final effort to address her concerns. But Mr. Poulin and Attorney Williams should know that the Court recalls this case extremely well. It remembers the hours of video that Mr. Poulin took of this unsuspecting young woman. It recalls the victim’s credible and persuasive testimony. It recollects the photographic evidence of the Poulin bathroom in Islesford, which Mr. Poulin constructed, and the multiple minute secret cameras placed in the rivets located strategically to gain revealing angles of this young girl’s body. It recalls the toilet camera, the gynecological images, and the overwhelming evidence that this young woman was a minor when some of the most graphic pornographic images were made. The Court remains convinced beyond any shadow of a doubt that Mr. Poulin did precisely what the grand jury charged and that he has been properly incarcerated for his horrendous breach of trust, his multi-year invasion of this girl’s privacy, and his deliberate, obsessive, and injurious criminal acts.
I. LEGAL STANDARD
A motion “to alter or amend a judgment” is available under Federal Rule of Civil Procedure 59(e). Fed.R.Civ.P. 59(e). Such motions are sometimes referred to in shorthand as “motions for reconsideration.” E.g., United States v. $23, 000 in U.S. Currency, 356 F.3d 157, 165 n.9 (1st Cir. 2004). “However, a Rule 59(e) motion is not a vehicle to force the court to think twice; it is not an opportunity for the losing party simply to press his unsuccessful arguments a second time in the hope that, by repetition, the court will see them his way.” Widi v. McNeil, 2:12-cv-00188-JAW, 2014 U.S. Dist. LEXIS 19778, *3 (D. Me. Feb. 18, 2014). Thus, the motion “is normally not a promising vehicle for revisiting a party’s case and rearguing theories previously advanced and rejected.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).
Instead, the motion provides the court with an opportunity to correct “manifest errors of law or fact or to present newly discovered evidence.” Lakshman v. Univ. of Me. Sys., 338 F.Supp.2d 162, 164 (D. Me. 2004) (internal quotations omitted). “As an ‘extraordinary remedy’, a motion for reconsideration’s utility is properly limited to: ‘(1) the availability of new evidence not previously available, (2) an intervening change in controlling law, or (3) the need to correct a clear error of law or to prevent manifest injustice.’” Nw. Bypass Grp. v. U.S. Army Corps of Eng’rs, 490 F.Supp.2d 184, 187 (D.N.H. 2007) (quoting Villanueva-Mendez v. Nieves Vazquez, 360 F.Supp.2d 320, 324 (D.P.R. 2005)).
The Court recited most of the salient historical facts in its January 27, 2014 Amended Order. See Am. Order on Mot. Under 28 U.S.C. § 2255, at 2-3 (ECF No. 295). However, to provide context, the Court recites the facts essential to this decision.
A. Mr. Poulin’s Conviction
On March 12, 2008, a grand jury indicted Mr. Poulin on one count of production of child pornography. Indictment (ECF No. 1). Before trial, Mr. Poulin and his counsel, David Van Dyke, discovered a number of problems with evidence generated by the Maine State Police Computer Crimes Unit (MCCU). These problems, described in more detail below, centered on an intake form generated by the MCCU and certain reports authored by MCCU forensic examiner Inez Dudley. Mr. Poulin also alleged that Assistant United States Attorney (AUSA) Gail F. Malone, the federal prosecutor handling his case, made deliberate misstatements to Mr. Van Dyke and the Court during the period of pre-trial discovery, and supplied certain evidence to Mr. Van Dyke that she knew to be fabricated. After significant motion practice on this issue, including a motion to dismiss the indictment and a motion to suppress evidence, the Government agreed not to use any of the evidence generated by the MCCU at trial and the Court otherwise denied Mr. Poulin’s motion to dismiss for prosecutorial misconduct. Order on Mots. to Dismiss the Indictment on the Grounds of Prosecutorial / Investigative Misconduct (ECF No. 157) (Aug. 17, 2009). The Government honored its commitment not to use evidence from the MCCU.
At the close of a four-day bench trial from September 8 through September 14, 2009, this Court convicted Mr. Poulin of the charges against him. Courtroom Minutes: Trial Proceedings (ECF No. 184) (Sept. 14, 2009). On January 27, 2010, the Court sentenced Mr. Poulin to 180 months imprisonment, J. in a Criminal Case (ECF No. 190), the mandatory statutory minimum for his crime. 18 U.S.C. § 2251(e).
The First Circuit affirmed Mr. Poulin’s conviction on direct appeal. United States v. Poulin, 631 F.3d 17 (1st Cir. 2011).
B. Procedural Posture of this Habeas Petition
On April 6, 2012, Mr. Poulin filed a motion under 28 U.S.C § 2255 to vacate his sentence, with a supporting memorandum. Mot. Under 28 U.S.C. § 2255 (ECF No. 224) (Habeas Pet.); Supporting Mem. for a Mot. to Vacate, Set Aside, or Correct Sentence (ECF No. 223) (Supporting Mem.). The Government answered the habeas petition on October 17, 2012, and moved to dismiss it. Gov’t’s Mot. for Summ. Dismissal of Mot. to Vacate, Set Aside, or Correct Sentence (ECF No. 276) (Gov’t’s Mot. to Dismiss). Mr. Poulin replied to the Government’s motion to dismiss on January 18, 2013. Pet’r’s Reply to Gov’t’s Mot. for Summ. Dismissal (ECF No. 285) (Pet’r’s Reply).
On April 16, 2013, the Magistrate Judge issued a Recommended Decision recommending that the Court deny Mr. Poulin’s habeas petition. Recommended Decision (ECF No. 288) (Rec. Dec.). Mr. Poulin objected to the Recommended Decision on May 18, 2013, Objection to the Magistrate’s Recommended Decision (ECF No. 291), and the Government did not respond.
On January 15, 2014, the Court issued an Order denying Mr. Poulin’s habeas petition, Order on Mot. Under 28 U.S.C. § 2255 (ECF No. 293), and amended that order on January 27, 2014. Am. Order on Mot. Under 28 U.S.C. § 2255 (ECF No. 295) (Order). The Court largely approved of the Recommended Decision, but wrote separately to add detail regarding the application of the error and prejudice prongs of Strickland v. Washington, 466 U.S. 668 (1984).
Mr. Poulin filed a motion for reconsideration of the Court’s denial of his habeas petition on January 29, 2014. Pet’r’s Mot. for Recons. (ECF No. 296) (Mot. for Recons.). The Government opposed this motion on February 28, 2014. Gov’t’s Opp’n to Pet’r’s Mot. for Recons. (ECF No. 298) (Gov’t’s Opp’n). However, before counsel for Mr. Poulin could file a reply to the Government’s opposition, Mr. Poulin himself filed a pro se appeal of the Order on February 24, 2014. Notice of Appeal (ECF No. 299).
Two days after Mr. Poulin’s notice of appeal, the Government filed a motion urging the Court to recognize that the appeal had divested the Court of jurisdiction to rule on the motion for reconsideration. Gov’t’s Mot. Invoking Court’s Lack of Jurisdiction to Rule on Pet’r’s Mot. for Recons. (ECF No. 303). On March 4, 2014, counsel for Mr. Poulin replied to the Government’s opposition to the motion for reconsideration, Reply to Gov’t’s Opp’n to Pet’r’s Mot. for Recons. (ECF No. 304) (Pet’r’s Second Reply), and also opposed the Government’s motion to divest the Court of jurisdiction. Pet’r’s Objections to Gov’t’s Mot. to Dismiss Mot. for Recons. and Req. to Withdraw Pro Se Notice of Appeal (ECF No. 305). The Government replied to this opposition on March 6, 2014, but made no further arguments in support of divesting the Court of jurisdiction. Gov’t’s Resp. to Pet’r’s Objections to Gov’t’s Mot. to Dismiss Mot. for Recons. (ECF No. 306).
The Government is correct that “[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). However, Federal Rule of Appellate Procedure 4(a)(4)(B)(i) states that:
If a party files a notice of appeal after the court announces or enters a judgment--but before it disposes of any motion listed in Rule 4(a)(4)(A)--the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.
Among the motions listed under Appellate Rule 4(a)(4)(A) is a motion “to alter or amend the judgment under Rule 59, ” Fed. R. App. P. 4(a)(4)(A)(iv)—in other words, a motion for reconsideration. The net effect of these rules is to delay the effective date of the Notice of Appeal until after the Court has ruled on the present Motion for Reconsideration. Therefore, the Court has not been divested of jurisdiction, and the Notice of Appeal will be effective the date of this order.
IV. THE ISSUES AT TRIAL
A. The Temporal Window
The grand jury issued its indictment of Mr. Poulin on March 12, 2008, charging him with a violation of 18 U.S.C. § 2251(a), the production of child pornography. Indictment at 1. To prove its case, the Government was required to prove beyond a reasonable doubt that the victim was a minor when Mr. Poulin produced the images. Under 18 U.S.C. § 2256(1), a minor is defined as “any person under the age of eighteen years.” The victim in this case was born in November 1986 and turned eighteen in November 2004. The Government was therefore required to demonstrate that Mr. Poulin produced the images before November 2004.
Also, under 18 U.S.C. § 3282(a), the general statute of limitations for most criminal offenses is five years. However, on July 27, 2006, as part of the Adam Walsh Act, Congress eliminated the statute of limitations for most federal offenses involving minors. Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 211, 120 Stat. 587 (codified at 18 U.S.C. § 3299). The Government argued that the existing statute of limitations for the production of child pornography had not run as of July 27, 2006 and therefore the 2006 amendment applied to Mr. Poulin. Gov’t’s Mem. in Resp. to Def.’s Mot. for J. of Acquittal 1-6 (ECF No. 179).
At trial, although the Court suggested that the Government’s analysis was correct, the Court did not rule on the statute of limitations issue because it determined that Mr. Poulin had produced child pornography within the five year window in any event, namely after March 12, 2003 and before November 2004.
B. Sexually Explicit Conduct
The law requires that the images depict the minor engaged in “sexually explicit conduct.” 18 U.S.C. § 2251(a). The law contains a number of definitions of sexually explicit conduct, but the one applicable to this case was the “lascivious exhibition of the genitals or pubic area of any person.” Id. § 2256(2)(A)(v). Early on, Mr. Poulin produced images of the victim while she was naked, but those images would not have met this definition. To prove this element of the case, the Government was required to prove beyond a reasonable doubt that Mr. Poulin produced images that showed the “lascivious exhibition of the genitals or pubic area” of the victim. Combining the temporal window with the definition of sexually explicit conduct, the Government was required to prove that Mr. Poulin produced images of the victim engaged in the “lascivious display of the genitals or pubic area” between March 12, 2003 and November 2004.
C. What Mr. Poulin Admitted
On August 31, 2009, Mr. Poulin filed a trial memorandum with the Court, setting forth the issues that were being presented for trial. In that memorandum, Mr. Poulin emphasized in bold print:
Defendant Poulin does not now and has never denied (1) placing surreptitious cameras in bathrooms, (2) making recordings/depictions and thereby violating the privacy of various individuals.
However, Defendant Poulin adamantly denies producing child pornography.
Defendant Poulin maintains that no “toilet-cam” images were produced of any minor: Defendant Poulin maintains that he judiciously avoided making any “toilet-cam” or pornographic images of [the victim] before her 18th birthday.
Defendant Poulin maintains that the investigators and prosecutors in this matter have manipulated evidence to create the appearance that he (a) created child pornography and (b) placed that child pornography over the internet.
Pre-Trial Mem. of Def. Daniel Poulin at 3 (ECF No. 168) (emphasis in Defendant’s memorandum). During his closing argument, Mr. Poulin’s trial lawyer stressed:
Mr. Poulin has never denied - - not just as a matter of taking the stand before Your Honor, but in all of his dealings three years ago, he never denied for a moment placing surreptitious cameras in various homes, recording [the victim] at various ages.
Tr. of Proceedings 465:23-466:2 (ECF No. 199).
D. The Elements
Congress has criminalized the production of child pornography:
Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . . shall be punished . . . if that visual depiction was produced . . . using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer.
18 U.S.C. § 2251(a). Thus, to sustain its burden of proof, the Government had to prove three elements beyond a reasonable doubt:
1) That the Defendant knowingly employed or used a minor to engage in sexually explicit conduct;
2) That he did so for the purpose of making a visual depiction of the conduct; and,
3) That the visual depiction was produced using materials that had been mailed, shipped, or transported in interstate or foreign commerce.
V. THE EVIDENCE
A. Sexually Explicit Conduct
In this case, the Government produced a volume of images of the victim and a clip of one of her friends in the bathrooms of places where Mr. Poulin and the victim either lived or visited. As noted earlier, some of the images were extremely graphic and constituted pornography within the statutory definition. Still Mr. Poulin put the Government to its proof as to the “confluence” of three elements: (1) minor age, (2) sexual explicitness, and (3) production. Although Mr. Poulin contested whether the admitted images constituted pornography under the so-called Dost factor analysis, the Court found that at least some of the images would meet the statutory definition. See United States v. Amirault, 173 F.3d 28, 31-32 (1st Cir. 1999) (citing United States v. Dost, 636 F.Supp. 828, 832 (S.D. Cal. 1986)).
B. Interstate Nexus
The Government produced evidence that all the media, namely the cameras, the recording devices, and their components, were manufactured outside the state of Maine. Also, the Government called as a witness a man from Texas, Terry Dicus, who testified that he had sold Mr. Poulin cameras similar to the ones found in the Poulin bathrooms and that he had shipped those devices to Mr. Poulin in Maine. The Court found that the Government had established the interstate commerce nexus.
The most difficult element for the Government to demonstrate was that the females in the images were under eighteen when Mr. Poulin made them. Likely due to the problems with the MCCU, the Government did not attempt to date the age of the person in the images by reference to computer-generated dating.
Instead, the Government relied on extrinsic evidence combined with what the images revealed to sustain its burden of proof on this issue. For example, once the dates of birth of each of the filmed females (the victim and her friend) were established, the question was when certain filming took place. Some of the witnesses testified that the images were made in the bathroom of a house in Howland, Maine where Mr. Poulin, his girlfriend, and his girlfriend’s family lived. The Government also produced evidence through a state Fire Marshal Office report that the Howland residence burned in July 2004. As the images were made in the Howland house before it burned, the females in the Howland images were necessarily under eighteen, one being 17 and the other 16.
Another series of images was taken at a residence in Trenton, Maine where Mr. Poulin’s father, Lucien, had resided. The victim recognized two handrails near the toilet in the images that existed up to the date Lucien passed away. Lucien died when the victim was sixteen, and after Lucien’s death, Mr. Poulin remodeled the bathroom and removed the handrails. Therefore, as there were images of the victim that revealed handrails, these images had to have been taken when the victim was younger than eighteen.
In the spring of the year when the victim was fifteen, she went tanning at a local spa in Howland owned by Brenda Dunn. When she tanned, she used so-called “tanning stickers, ” which keep the area under the sticker away from the tanning source and allow the tanner to know her progress. When the victim was fifteen, she used a tanning sticker in the shape of a Playboy bunny. The sticker image dissipated as time went on. Thus, if an image showed the outline of a Playboy bunny on her body, the image would have been taken when she was fifteen.
There were two additional age markers. The day she turned eighteen, the victim got a belly button piercing, and one month after her eighteenth birthday she got a tattoo of a moon and star on her left shoulder. Thus, if the piercing or the tattoo appeared in an image, she was at least eighteen. If the piercing did not appear, she was under eighteen and if the tattoo did not appear, it was evidence that she was under eighteen.
Carefully collating all of this age evidence and comparing it with the actual images, the Court found that some of the pornographic images were in fact produced when the victim and her friend were under eighteen. For example, the Government produced images of the victim and her friend in the bathroom at the residence in Howland, which as noted burned in July 2004, when the two girls were minors. Furthermore, the primary victim did not have a belly-button piercing or a left shoulder tattoo. Contrary to Mr. Poulin’s claim that he had “judiciously” avoided recording any pornographic images of the victim before she was eighteen, the Court found these images were in fact pornographic. A hidden camera had been placed in a low position with an upward trajectory to focus on their genitals and these images met the statutory lascivious display definition. This series of images was but one of an enormous number that Mr. Poulin produced of this victim in Howland, Trenton, and Islesford, Maine during her minority, which the Court found readily met the statutory definition of pornography.
D. The Defendant’s Admissions
After his filming was found out, Mr. Poulin confessed his misconduct to at least three individuals and their testimony was introduced at trial.
The day the DVDs were discovered, Mr. Poulin confessed his activity to Paul Fernald of Islesford. 2 Tr. of Proceedings at 325:3-331:6 (ECF No. 197). Mr. Poulin told Mr. Fernald that he had “made a huge mistake” and had “basically ruined his life and [the victim’s].” Id. at 328:7-10. He confessed to “videotaping [the victim].” Id. at 328:11-12. He explained that he “had an attraction to her - - and it was something that he felt like he couldn’t control, I guess.” Id. at 328:11-14. He told Mr. Fernald that he had been taping the victim for “about four years.” Id. at 328:15-16. He said he had taped her in Trenton, in Howland and on Islesford. Id. at 328:17-18. Mr. Fernald recalled that he “might have said something about her being 14 or 15 when it started.” Id. at 328:24-329:2. He said that “mostly it was toweling off in the bath, you know, on the toilet, changing her tampon one thing he said.” Id. at 329:3-7.
In October 2006, Evelyn Boxley, an Islesford resident, observed Mr. Poulin walking across the schoolyard “sort of slumped over.” 2 Tr. of Proceedings at 276:22-277:5 (ECF No. 197). Mr. Poulin came over to her car and she asked him what was going on. Id. at 277:5-6. Mr. Poulin told Ms. Boxley that he had done “something really bad.” Id. at 277:6-7. He told her that he had “cameras” and had been “taking pictures of [the victim].” Id. at 277:9-10. She responded that it could not be that bad and he replied, “Yes, it really was.” Id. at 277:10-11.
In November 2006, Mr. Poulin called a longtime friend, George Von York, and told him that his girlfriend and her daughter had discovered video recordings made from cameras that he had placed in the bathroom of their residence. 3 Tr. of Proceedings at 391:3-6 (ECF No. 198). Mr. Poulin told Mr. Von York that he had made the recordings without the knowledge of the persons being filmed. Id. at 391:7-9. He confessed to Mr. Von York that he had begun filming the victim when she was a minor. Id. at 391:14-17. He told Mr. Von York that he “had a sexual addiction and an addiction to pornography, and he was working with other groups of people with the same problem and trying to get help at that time.” Id. at 391:18-23.
In the Court’s view, when all the evidence was considered, the Government had made out an unusually strong case that Mr. Poulin had produced pornographic images of his girlfriend’s daughter and her friend when they were minors and had used equipment that had been mailed, shipped or transported in interstate or foreign commerce.
VI. THE APPEAL
Mr. Poulin appealed his conviction to the First Circuit Court of Appeals and on January 7, 2011, the First Circuit affirmed the conviction. Poulin, 631 F.3d at 23. On appeal, Mr. Poulin raised a constitutional claim based on the Commerce Clause, id. at 20-22, and he attacked the sufficiency of the evidence to support the conviction. Id. at 22-23. This decision is final and the issues that the First Circuit resolved are not subject to attack on collateral review. United States v. Frady, 456 U.S. 152, 165 (1982) (“a collateral challenge may not do service for an appeal”).
VII. FACTUAL DISPUTES
Beginning with his initial habeas filing, Mr. Poulin has continued to make a series of extremely serious allegations against the Government, specifically against the MCCU and against AUSA Malone. Supporting Mem. Mr. Poulin’s initial memorandum sets forth the charges:
Petitioner asserts that certain findings of fact were determined by the trier in the absence of exculpatory evidence willfully suppressed by the prosecution. Petitioner further asserts that false evidence was placed into the record by the prosecution, evidence that would have been directly refuted by the suppressed exculpatory evidence. Petitioner can demonstrate clearly and convincingly that the prosecution’s numerous acts of fraud conducted in the context of discovery violations, suppression of exculpatory evidence, and defiance of the Court’s orders unfairly hampered Petitioner’s ability to prepare a defense.
Id. at 5. These allegations of prosecutorial and law enforcement misconduct have permeated all of Mr. Poulin’s filings in his habeas petition.
Specifically, Mr. Poulin says that the Government performed three separate forensic examinations: (1) a hard drive examination, (2) a media examination, and (3) a court-ordered corrective report. Id. at 7. Mr. Poulin asserts that “[e]ach examination produced information that was materially favorable to Petitioner but, in each situation, the favorable forensic information was withheld or concealed while false information was placed into the record by the prosecution.” Id.
A. “Exculpatory” and “Falsely Inculpatory” Examination Reports
In his Motion for Reconsideration, Mr. Poulin expresses his disappointment that the Court did not address in more detail his objection to the Magistrate Judge’s findings that there was a single withheld report from the MCCU, and that “false inculpatory” reports were “knowingly placed into the record.” Mot. for Recons. at 2-3.
1. The “Exculpatory” Reports
After describing the [M]agistrate Judge’s recommendation with some reverence, as “a thoughtful thirty-page decision, ” the Court reflects upon the magistrate’s determination that there was a single task force Dudley report that the prosecution was required to produce and had failed or refused to do so . . . . This is simply NOT correct. This issue was thoroughly addressed in Petitioner’s objection brief . . . . The record clearly establishes that there were at least three (3) exculpatory Dudley reports that were systematically suppressed by the prosecution on multiple occasions over the course of several years.
Id. at 2 (citing Objection at 8-10, 16-19, 20-21). The Court previously declined to address this contention in detail because, as the Court explains below, Section VIII.D.4.a.iii, infra, the reports to which Mr. Poulin refers were based on improbable evidence and conclusory assertions of wrongdoing. Furthermore, they were immaterial to the trial evidence. Id. However, in the interest of completeness and in an effort to assure Attorney Williams and Mr. Poulin that it understands, but disagrees with, their contentions, the Court recites the factual allegations on which Mr. Poulin relies most heavily.
a. The DVD Media Examination Report
In his objection to the Magistrate Judge’s recommended decision, Mr. Poulin asserts that “[t]he Magistrate [Judge] failed to address the DVD Media Examination fraud.” Objection at 8. The subject of this alleged fraud is a Media Examination Report that Mr. Poulin claims the state crime lab produced in 2007. Supporting Mem. at 9-10. Mr. Poulin further alleges that the document originally proffered to the defense as the Media Examination Report was, in fact, a fraud manufactured by Detective Stephen McFarland. Id. at 11.
To demonstrate that the original report was a fraud, it would have been helpful if Mr. Poulin had provided the Media Examination Report that he claims is correct and exculpatory. However, despite careful screening of the habeas record, the Court has not been able to locate the supposedly true report. Mr. Poulin does not at any point expressly direct the Court to Media Examination Report in the attachments to his affidavits. See Id . at 1-32. Mr. Poulin’s Affidavit hints that the Media Examination Report was “materially favorable to the defense, ” Poulin Aff. ¶ 25, and was produced “to the defense right before the start of trial, ” id. ¶ 31, so the Court assumes that the Media Examination Report must exist. Mr. Van Dyke’s Affidavit states that “[a] second . . . disk examination was . . . produced to the defense [in] early September 2009, right before trial began, ” Van Dyke Aff. ¶ 25, and identifies this report as Exhibit T. However, Exhibit T consists of a single page cover sheet marked “Page 1 of 2”; page 2 is not available. See Van Dyke Aff. at Ex. T Forensic Synopsis (ECF No. 235-4) (Forensic Synopsis). Furthermore, Mr. Poulin elsewhere alleges that Exhibit T is the “Brief Report” that is the third piece of alleged “false inculpatory evidence” offered by the Government in this case. See Poulin Aff. ¶ 25 (citing Forensic Synopsis).
The Objection claims that AUSA Malone “open[ly] “admi[tted] . . .suppression” of this DVD Media Examination. Objection at 9 (citing Objection at 18-19). As evidence of this admission, Mr. Poulin offers Exhibit R to the Van Dyke Affidavit, an email dated May 6, 2009 in which AUSA Malone wrote:
[I]n June 2007, [Detective] Steve McFarland had several [of] the DVDs recovered from Mr. Poulin delivered to the Computer Crimes Unit to determine if they could tell when the information had been burned to the disks. On April 8, 2008, you received in discovery a spreadsheet (discovery page #0279-0297) containing technical information retrieved from those disks, including the file creation date. . . . Because the review of these disks was completed in a separate operation from the review of the hard drives, the work was not ...