USA v. McCoy, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff(s),
vs.
ISAIAH MCCOY,
Defendant(s).
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CR 23-00085-SOM-KJM-1
ORDER DENYING IN PART
DEFENDANT’S DISCOVERY MOTION
(ECF NO. 144)AND REQUIRING
GOVERNMENT RESPONSE TO
REMAINING ISSUES
ORDER DENYING IN PART DEFENDANT’S DISCOVERY MOTION (ECF NO. 144)
AND REQUIRING GOVERNMENT RESPONSE TO REMAINING ISSUES
The court has reviewed Defendant Isaiah McCoy’s
discovery motion. To the extent this order leaves any portion of
that motion pending, the Government’s response is due by 4:00
p.m. on Tuesday, April 16, 2024. Mr. McCoy may file an optional
reply before this court rules, which is likely to occur by the
afternoon of April 18, 2024. The court will decide the motion
without a hearing.
The court directs the Government to address in its
response the portion of the motion asserting that some of the
discovery is not actually viewable at FDC.
The motion complains that nonexplicit material has been
included on the explicit hard drive. The court’s understanding is
that, quite apart from any dispute about what is and is not
sexually explicit, the Government has produced material extracted
from cell phones in an intact manner. That is, when the extracted
material included both explicit and nonexplicit material, the
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Government included all of that material on the explicit hard
drive without dissecting that material into explicit and
nonexplicit categories. This has the advantage of avoiding
confusion that might result if explicit material were cut out of
a text message chain, leaving the ensuing messages without
context. It also has allowed production of discovery even in the
face of disputes about what is and is not explicit.
The court understands that Mr. McCoy can view the
explicit hard drive in a designated room at FDC from 7 a.m. to 8
p.m. every day (or alternatively he could be taken on work days
to view the material at a Homeland Security office during normal
business hours, which would avoid disruptions relating to prison
operations). While the court understands that Mr. McCoy would
have greater access to the material on the explicit hard drive if
at least the nonexplicit material on the explicit hard could be
loaded onto the laptop he has in his cell, the court is not
presently persuaded that the access he has been afforded is
insufficient. To the extent the motion argues that Mr. McCoy’s
rights are being violated by the inclusion of nonexplict material
on the explicit hard drive, the motion is denied.
Notwithstanding the court’s preceding ruling, the court
remains willing to consider reasonable measures to increase Mr.
McCoy’s access to discovery materials. The court therefore asks
the Government to address in its response whether it could
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produce another copy of the explicit hard drive so that Mr. McCoy
could not only go to the designated room to view the intact phone
extractions on the already produced explicit hard drive, but
could also work with a second copy of the explicit hard drive to
delete the explicit material in the same manner in which he says
he has deleted the explicit material that was inadvertently
included in the nonexplicit hard drive. What the court is
positing is that Mr. McCoy could prepare for himself a version of
what is now the explicit hard drive that contains only what is
clearly nonexplicit material that could then be loaded onto the
laptop he has in his cell. For this to work, the Government would
need to review the result of Mr, McCoy’s deletions to ensure that
it does not include explicit material, and disputes about what is
and what is not sexually explicit would need to be resolved. Mr.
McCoy could avoid such disputes by erring on the side of
deletions (e.g., by deleting all photos and videos).
In addressing increased access, the court is not ruling
that the present access is constitutionally deficient. For that
reason, the court is not placing on the Government the burden of
deleting nonexplict material from the explicit hard drive. Had
the hours that Mr. McCoy could go to the room been more limited,
this court would likely reach a different conclusion.
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Mr. McCoy’s motion also complains about discovery he
says the Government should have obtained. To the extent Mr.
McCoy’s motion seeks an order directing the Government to obtain
material, that portion of the motion is denied. A defendant has
no right to control what evidence the Government gathers.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 15, 2024.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
USA v. Isaiah McCoy, Criminal No. 23-00085-SOM-KJM-1; ORDER DENYING IN PART
DEFENDANT’S DISCOVERY MOTION (ECF NO. 144) AND REQUIRING GOVERNMENT RESPONSE TO
REMAINING ISSUES
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