USA v. Eichorn

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
v.
Justin David Eichorn,
Defendant.
File No. 25-cr-117 (ECT/SGE)
OPINION AND ORDER
Kristian C.S. Weir, United States Attorney’s Office, Minneapolis, MN, for Plaintiff United
States of America.
Arthur Waldon, IV, Waldon Law, PLLC, Lakeville, MN; and Charles L. Hawkins, Charles
Hawkins Law Office, Minneapolis, MN, for Defendant Justin David Eichorn.
In an Order and Report and Recommendation [ECF Nos. 64–65],1 Magistrate Judge
Shannon G. Elkins (1) partially granted a Motion to Compel Disclosure of Evidence
Favorable to the Defendant [ECF No. 36], and (2) recommended that three motions Mr.
Eichorn filed be denied. Mr. Eichorn’s motions include a Motion to Dismiss the Indictment
Based on Vindictive and Selective Prosecution [ECF No. 37], a Motion to Suppress
Statements [ECF No. 38], and a Motion to Suppress Evidence Obtained Through Illegal
Search and Seizure [ECF No. 40]. 	Both parties object to Judge Elkins’s Order, and Mr.
1 	The Order and Report and Recommendation is filed under two separate docket
entries. See ECF Nos. 64–65. The docket text titles ECF No. 64 the Order and ECF No.
65 the Report and Recommendation. 	Id. 	However, the documents filed under the two
entries are identical. For efficiency’s sake, only ECF No. 65 will be cited throughout this
Order.
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Eichorn objects to the Report and Recommendation. This order addresses those objections.
Familiarity with Judge Elkins’s Order and Report and Recommendation is presumed.
Begin with the parties’ objections to the Order. In this respect, the Order is reviewed
for clear error. 28 U.S.C. § 636(b)(1)(A); D. Minn. LR 72.2(a)(3). Judge Elkins ordered
the Government to produce an affidavit identifying the decoy undercover officer’s birth
date. 	ECF No. 65 at 8. 	The Government argues that the undercover officer’s age is
immaterial to whether Mr. Eichorn believed she was under the age of eighteen at the time
of the alleged offense. ECF No. 69 at 5–7. Mr. Eichorn argues that he is also entitled to
discovery of the undercover officer’s identity. 	ECF No. 68 at 1–2. 	He claims she is a
“material witness.” Id. at 2.
“Criminal defendants do not have a general constitutional right to discovery.”
United States v. Johnson, 228 F.3d 920, 924 (8th Cir. 2000) (citing Weatherford v. Bursey,
429 U.S. 545, 559 (1977)). 	“In most circumstances, then, a defendant must point to a
statute, rule of criminal procedure, or other entitlement to obtain discovery from the
government.” Id. Mr. Eichorn’s request for this discovery is based on Brady v. Maryland,
373 U.S. 83 (1963), and its progeny, and his objection relies specifically on United States
v. Barnes, 486 F.2d 776 (8th Cir. 1973).
Brady requires the prosecution to disclose “evidence favorable to an accused” where
“the evidence is material either to guilt or to punishment.” 373 U.S at 87; accord United
States v. Whitehill, 532 F.3d 746, 753 (8th Cir. 2008). Brady’s mandate “applies to both
exculpatory and impeachment evidence.” Whitehill, 532 F.3d at 753 (citing United States
v. Bagley, 473 U.S. 667, 676 (1985)). Barnes holds that “where the informant is shown to
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be a material witness and the government does not plan to use the informant as a witness
it owes a duty to make every reasonable effort to have the informant made available to the
defendant to interview or use as a witness, if desired.” 	486 F.2d at 779–80 (footnote
omitted). “[W]here the witness is an active participant or witness to the offense charged,
disclosure will almost always be material to the accused’s defense.” Id. at 778–79.
Both Brady and Barnes contain a materiality requirement, which necessitates
examining the crime with which Mr. Eichorn is charged and the undercover officer’s
involvement. 	Mr. Eichorn is charged with attempted enticement of a minor under 18
U.S.C. § 2422(b). ECF No. 17. Under this statute, the Government must prove that Mr.
Eichorn believed the undercover officer was under eighteen years of age. See United States
v. Harcrow, 135 F.4th 636, 641 (8th Cir. 2025) (describing elements for attempted
enticement of a minor). The Government’s representations—which Mr. Eichorn does not
dispute—are that the undercover officer posed for pictures in the online advertisement and
photos sent via text to Mr. Eichorn. ECF No. 69 at 5–6. Mr. Eichorn had no other contact
with the undercover officer. See id. at 6 (“Her sole contribution was to pose for photos.”).
The undercover officer was not present at the scene of the arrest. 	Id. 	Nor was she
responsible for drafting the texts sent to Mr. Eichorn. Id.
I agree with Judge Elkins that “the age of the person in the photo is material to Mr.
Eichorn’s reasonable belief regarding the decoy’s age at the time of the offense but . . . that
her identity is immaterial.” 	ECF No. 65 at 8. 	Mr. Eichorn may attempt to show at trial
that he reasonably believed the person in the photograph was not under the age of eighteen.
(In one of his text messages, he communicated that the undercover officer appeared to be
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“in [her] 20’s” in one photograph, notwithstanding text messages assuring him that she was
17. ECF No. 43-1 at 10.) The undercover officer’s age is material to that issue. That is
enough to reasonably warrant discovery of the matter, though not the question of the
evidence’s admissibility at trial. At the same time, however, the undercover officer’s role
was minor. She was not an “active participant” nor was she a “witness” to the offense. See
Barnes, 486 F.2d at 778–79. There is no indication she would be able to provide material
testimony.
Turn next to Mr. Eichorn’s objections to the Report and Recommendation. To the
extent he has objected, the standard of review is de novo. 28 U.S.C. § 636(b)(1); D. Minn.
LR 72.2(b)(3).
Mr. Eichorn objects to Judge Elkins’s recommendation that his Motion to Dismiss
the Indictment Based on Vindictive and Selective Prosecution [ECF No. 37] be denied.
The first issue is whether Judge Elkins correctly determined that Mr. Eichorn has not shown
his prosecution was “selective” in the relevant sense.
The government has “broad discretion” in deciding whom to prosecute. 	Wayte v.
United States, 470 U.S. 598, 607 (1985). But prosecutorial discretion is not “unfettered”
and is “subject to constitutional restraints.” Id. at 608 (quoting United States v. Batchelder,
442 U.S. 114, 125 (1979)). “The decision to prosecute may not be deliberately based upon
an unjustifiable standard such as race, religion, or other arbitrary classification, including
the exercise of protected statutory and constitutional rights.” 	Id. (citation modified). 	To
make out a prima facie claim of selective prosecution, a defendant must show “1) that he
has been singled out for prosecution while others similarly situated have not been
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prosecuted for similar conduct and 2) that the government’s action in thus singling him out
was based on 	an impermissible 	motive 	such as race, religion, 	or the exercise 	of
constitutional rights.” 	United States v. White, 928 F.3d 734, 742–43 (8th Cir. 2019)
(quoting United States v. Parham, 16 F.3d 844, 846 (8th Cir. 1994)). “This ‘standard is a
demanding one . . . .’” Id. (quoting United States v. Armstrong, 517 U.S. 456, 463 (1996)).
Prosecutors are entitled to “the presumption of regularity” which requires that “in the
absence of clear evidence to the contrary, courts [must] presume that they have properly
discharged their official duties.” 	Armstrong, 517 U.S. at 464 (quoting United States v.
Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)).
The first prong of the selective-prosecution analysis asks whether the challenged
prosecutorial decision had a discriminatory effect. United States v. Lazzaro, No. 21-cr-173
(PJS/DTS), 2022 WL 16948157, at *2 (D. Minn. Nov. 15, 2022) (citing Armstrong, 517
U.S. at 465).
A defendant must show that he was treated differently from
comparators—that is, other individuals: (1) who committed
roughly the same crime under roughly the same circumstances;
(2) who are outside the protected class,—i.e., who did not share
the trait or participate in the activity on which the prosecutor
allegedly relied; and (3) who were known to the prosecutor.
Id. (citation modified).
On this first prong, Judge Elkins concluded that, even though fifteen defendants
charged only in state court are similarly situated to Mr. Eichorn, the non-prosecution of
those individuals does not show that Mr. Eichorn was singled out. ECF No. 65 at 11–12.
Judge Elkins identified two independent grounds for this conclusion. First, she reasoned
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that the non-prosecution of fifteen individuals was “‘not statistically significant’ because
it ‘says nothing about the total number of individuals who could have been prosecuted in
federal court for [child enticement] but were not.’” Id. at 12 (quoting Lazzaro, 2022 WL
16948157, at *5). Second, she noted that the Government in fact charged three individuals
involved in the same sting. 	Id. 	Mr. Eichorn does not seem to dispute these conclusions.
He argues instead that, because the other three federally-charged defendants were indicted
more than two weeks after him, the “only rational inference” is that “they were charged in
an attempt to weaken any potential selective prosecution claim.” ECF No. 68 at 5–6.
This is not persuasive. As the Supreme Court has recognized, there are many factors
involved in the decision to prosecute. 	These include, among others, “the strength of the
case, the prosecution’s general deterrence value, the Government’s enforcement priorities,
and the case’s relationship to the Government’s overall enforcement plan.” 	Wayte, 470
U.S. at 607. There are many plausible explanations for why the Government indicted the
other three defendants and the timing of these indictments. Mr. Eichorn himself identifies
facts that might explain things—he asserts that the three other federally-charged defendants
had prior criminal records and were not in the United States legally. ECF No. 68 at 3–4.
The idea that the Government only charged the other defendants to undermine any selective
prosecution argument is not the “only rational inference,” as Mr. Eichorn contends. Id. at
5–6.
Mr. Eichorn objects to Judge Elkins’s conclusion that he failed to show the
Government’s decision to federally charge him was based on an impermissible motive. Id.
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at 3, 6. Mr. Eichorn relies on a press release in which then-acting United States Attorney
Lisa D. Kirkpatrick stated:
The U.S. Attorney’s Office has no tolerance for public officials
who violate federal law—particularly those laws meant to
protect children . . . . I am grateful to the Bloomington Police
Department, to the FBI, and to all law enforcement officers
who use undercover operations to identify and arrest child sex
predators to prevent them from abusing real children.
Ex. D1. 	Mr. Eichorn argues this statement is direct evidence that he was targeted for
exercising his First Amendment right to hold public office, his political affiliation, or both.
ECF No. 68 at 4, 6–7.
Mr. Eichorn must provide “clear evidence” to rebut the presumption that the
Government did not harbor an impermissible motive in charging him. See Armstrong, 517
U.S. at 464 (quoting Chem. Found., 272 U.S. at 14). As Judge Elkins correctly observed,
“political prominence is not an impermissible consideration” in deciding whom to
prosecute. 	United States v. Ojala, 544 F.2d 940, 944 (8th Cir. 1976). 	As the Seventh
Circuit reasoned,
[a]ssuming that the decision to indict Peskin and press for trial
was based in part on consideration of his political prominence,
this is not an impermissible basis for selection. It makes good
sense to prosecute those who will receive the media’s attention.
Publication of the proceedings may enhance the deterrent
effect of the prosecution and maintain public faith in the
precept that public officials are not above the law.
United States v. Peskin, 527 F.2d 71, 86 (7th Cir. 1975); accord Ojala, 544 F.2d at 944
(quoting Peskin). And, as the Eighth Circuit has noted, the “government lacks the means
to investigate and prosecute every suspected violation” of the law, and “[s]election based
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in part upon the potential deterrent effect on others serves a legitimate interest in promoting
more general compliance with” the law. 	Ojala, 544 F.2d at 945. 	Mr. Eichorn has not
shown the Government charged him based on an impermissible motive.
Mr. Eichorn objects to Judge Elkins’s recommendation that his motion to dismiss
the indictment due to vindictive prosecution be denied. 	ECF No. 68 at 7. 	“Vindictive
prosecution occurs when a prosecutor seeks to punish a defendant solely for exercising a
valid legal right. Such prosecution constitutes a violation of due process.” United States
v. Muratella, 843 F.3d 780, 782–83 (8th Cir. 2016) (quoting United States v. Williams, 793
F.3d 957, 963 (8th Cir. 2015)). The defendant bears a “heavy” burden to “demonstrate that
the ‘prosecution was brought in order to punish [him] for the exercise of a legal right.’”
Williams, 793 F.3d at 963 (quoting United States v. Leathers, 354 F.3d 955, 961 (8th Cir.
2004)).
A defendant can establish prosecutorial vindictiveness through
two 	methods; 	first, 	with 	“objective 	evidence 	of 	the
prosecutor’s vindictive or improper motive in increasing the
number or severity of charges.” United States v. Chappell, 779
F.3d 872, 879 (8th Cir. 2015) (internal quotation omitted).
“Absent such evidence, a defendant may, in rare instances,
rely upon a presumption of vindictiveness, if he provides
sufficient 	evidence 	to 	show 	a 	reasonable 	likelihood 	of
vindictiveness exists.” 	Id. (alteration in original) (internal
quotation omitted). 	In determining whether the presumption
of vindictiveness applies we examine “the prosecutor’s actions
in the context of the entire proceedings.” Id. at 880 (quotation
omitted).
Id.
Mr. Eichorn claims that Judge Elkins failed to consider Ms. Kirkpatrick’s statement
in combination with the Government’s decision not to prosecute the fifteen state-court
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defendants. 	ECF No. 68 at 7. 	This is not correct. 	Judge Elkins carefully evaluated Mr.
Eichorn’s contentions. ECF No. 65 at 14–15. Mr. Eichorn’s objections do not undermine
Judge Elkins’s conclusions.
Mr. Eichorn next objects to Judge Elkins’s determination that his warrantless arrest
was supported by probable cause. ECF No. 68 at 8–9. He asserts “there was no explicit
agreement” that Mr. Eichorn would hire the undercover officer for sex. 	Id. at 8. 	As he
sees it, the text messages between Mr. Eichorn and the undercover officer merely
demonstrate the Mr. Eichorn was “inquiring about meeting with the undercover officer,
and not specifically for sex acts.” Id. at 9.
“A warrantless arrest is consistent with the Fourth Amendment if it is supported by
probable cause.” 	United States v. Guevara, 731 F.3d 824, 832 (8th Cir. 2013) (citation
omitted). 	“Probable cause to make a warrantless arrest exists ‘when the totality of the
circumstances at the time of the arrest are sufficient to lead a reasonable person to believe
that the defendant has committed or is committing an offense.’” 	Ulrich v. Pope County,
715 F.3d 1054, 1059 (8th Cir. 2013) (quoting Borgman v. Kedley, 646 F.3d 518, 523 (8th
Cir. 2011)). 	Put another way, “probable cause for a warrantless arrest depends upon
whether, at the moment the arrest was made, the facts and circumstances within the
arresting officers’ knowledge and of which they had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that the suspect had committed or
was committing an offense.” 	United States v. Tovar-Valdivia, 193 F.3d 1025, 1028 (8th
Cir. 1999) (per curiam) (citation modified).
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As Judge Elkins observed, it is a violation of Minnesota law to “hire[] or offer[] or
agree[] to hire an individual who the actor reasonably believes to be under the age of 18
years but at least 16 years to engage in sexual penetration or sexual contact.” Minn. Stat.
§ 609.324, subdiv. 1(c)(3). 	Additionally, Minnesota law provides that “[w]hoever, with
intent to commit a crime, does an act which is a substantial step toward, and more than
prepared for, the commission of the crime is guilty of an attempt to commit that crime.”
Minn. Stat. § 609.17, subdiv. 1. Under Minnesota law, the “substantial step” requirement
is not readily susceptible to bright-line rules but rather depends on the facts of each case.
See, e.g., State v. Degroot, 946 N.W.2d 354, 363 (Minn. 2020).
In Degroot, the Minnesota Supreme Court upheld a defendant’s conviction for
attempted third-degree criminal sexual conduct. 946 N.W.2d at 357; Minn. Stat. § 609.17,
subdiv. 1 (2018) (attempt); Minn. Stat. § 609.344, subdiv. 1(b) (2018) (third-degree
criminal sexual conduct). 	An undercover officer operated a decoy profile of a fourteen-
year-old boy. Degroot, 946 N.W.2d at 358. The defendant exchanged numerous electronic
messages with the officer that involved sexual photographs and discussion, and an
agreement to meet. Id. During their text communications, the officer communicated that
he was fourteen years old. 	Id. 	The defendant asked “about preparing for anal sex,”
described “fetishized roleplay” he fantasized about for their encounter, and the defendant
and officer made plans to shower together upon their meeting. Id. The defendant entered
his car with items that he apparently intended to use during their planned sexual encounter
and drove to an agreed meet-up location. 	Id. at 358–59, 363. 	The undercover officer
directed the defendant to a parking lot across the street from the house where they would
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meet. Id. at 358. The defendant asked if there was a “Ford Taurus in [the] garage” of the
house where they were to meet, and the undercover officer replied, “yes.” 	Id. 	Police
officers observed the defendant exit his car and walk toward the house while carrying a
plastic shopping bag. 	Id. 	They arrested him while he was still in the parking lot. 	Id. at
358–59. On these facts, the Minnesota Supreme Court held the “substantial-step element”
of the attempt statute was met. Id. at 364.
Here, law enforcement posted an online advertisement for commercial sex that
included pictures of an undercover officer (the decoy). ECF No. 16 at 7–8. Mr. Eichorn
texted the phone number provided in that advertisement and said, “Hey Lexi I saw your
post and [sic] chance you are available tonight.” 	ECF No. 43-1 at 2; ECF No. 16 at 9.
From then on, discussion between Mr. Eichorn and the officers centered around topics
including (1) finding a time and location to meet up; (2) discussing the rates and sexual
services provided by the decoy; (3) photos to confirm the decoy was real; and (4) the
decoy’s age. See ECF No. 43-1. For example, the following exchange took place on March
17, 2025:
Eichorn: Ok what’s your address? Maybe we could meet
outside or public first to help us feel more comfortable
Officer: Yes we could do that . . . . . I’m sorry babe my phone
has been super busy and we hadnt talked for a while . . . . how
long are you looking to spend?
Eichorn: Qv2 or half hour
2 	“Qv” stands for “quick visit,” which is an appointment expected to last “15 minutes
or so.” ECF No. 16 at 17–18.
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Officer: $80qv or $120hh
Eichorn: Ok and what’s exactly do ya offer at that rate ?
Eichorn: ?
Officer: FS.3 No greek4 and bare5 is extra
Eichorn: Ok how much extra ?
Officer: $25
Eichorn: Ok what’s your address I’ll see if I can get there
Officer: Age/race?
Officer: ?
Eichorn: 38 and white and you?
Officer: A lil younger than my ad . . . . is that ok? I just wanna
have fun and no drama babe
Eichorn: Sure I don’t know what your ad says cuz I don’t have
it up anymore but as long as your legal age I am fine
Officer: I am 17 . . . like I said don’t want any drama but wanna
be upfront cause one guy got hella mad at me
Eichorn: Why was he so mad? I think age of consent is 17
when do ya turn 18 ?
Officer: Idk lol he was a creep anyway. I don’t turn 18 till
December
Eichorn: It’s says age of consent is 16 . . . . . . over 18 is in a
position of authority over you like a teacher or friends parent
3 	“FS” stands for “full service” which means “a sex act.” ECF No. 16 at 28–29.
4 	“Greek” refers to anal sex. ECF No. 16 at 29.
5 	“Bare” refers to “sexual intercourse without a condom.” ECF No. 16 at 29.
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ECF No. 43-1 at 7. 	Later that afternoon, Mr. Eichorn requested a photo, and the decoy
sent one. The following exchange took place:
Eichorn: Was hoping for a more full body shot but Hot you
look in your 20’s
Officer: Says the guy who won’t send me any photos lol . . .
awfully demanding. Sorry my photo isn’t good enough. I can
assure you I am 17. If you aren’t interested . . . . bye
Eichorn: 	I 	am 	interested 	on 	the 	way 	just 	trying 	to 	be
comfortable
Officer: I’ll make you comfortable . . . . how long babe? I
wanna be ready for you
Eichorn: 15 min
Officer: [sends screenshot of map]
Eichorn: Ok?
Officer: Park in the red area and let me know you are here. I
can see it from my apt and I will walk out to you
Eichorn: Ok
Officer: I am excited to meet you hun
Eichorn: Me to
…
Eichorn: Just pulling in come out what are ya wearing I’ll look
for you
Officer: All black. I don’t see any cars where I told you to park
. . . did you bring your friends truck???
Eichorn: Ya come on out I’ll look for ya
Officer: I only come out if you park where I tell you . . . . its
for my safety and to know you aren’t the cops
Eichorn: I am there
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Officer: No you aren’t. I can see that spot from my apartment
and there are no cars there. 	If you can’t find a parking spot
how are you gonna find my G spot?
Eichorn: I parked in the line you said
Officer: You are playing me . . . u must be a cop
Eichorn: By a grey ford
Officer: Are you in the turquoise SUV?
Eichorn: Yep right by that
Officer: Is that you walking in the black shirt?
Eichorn: Ya
Id. at 10–13. Law enforcement observed Mr. Eichorn arrive at the designated location in
a white Toyota Tundra wearing a black shirt. 	ECF No. 16 at 40; ECF No. 52 at 40–42.
Photos and video evidence submitted by Mr. Eichorn also show he was wearing a black
shirt. 	Exs. D22–D23. 	Mr. Eichorn exited his vehicle and walked around a wooded area
behind the truck. See Ex. D23. Mr. Eichorn walked towards the truck as officers arrived
on scene. D22 at 0:27–0:32.
These facts are like Degroot’s. (1) Mr. Eichorn’s text exchanges involved overtly
sexual discussion. (2) The officer repeatedly stated the decoy’s age was seventeen. (3) Mr.
Eichorn agreed to meet the decoy at a particular location. 	(4) He drove to that location.
(5) He exited his vehicle. 	(6) Mr. Eichorn identified himself as the person wearing the
black shirt walking in the parking lot. Keeping in mind that Degroot involved a challenge
to a conviction, it strongly supports the conclusion that there was probable cause to arrest
Mr. Eichorn. The contents of the multi-day text messages between Mr. Eichorn the officer,
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Mr. Eichorn’s actions in driving to the location specified by the officer for the meet-up,
and the fact that Mr. Eichorn confirmed he was wearing a black shirt could certainly “lead
a reasonable person to believe,” Ulrich, 715 F.3d at 1059, that Mr. Eichorn had attempted
to hire or had agreed to hire an underage person for sex acts in violation of Minnesota law.
Mr. Eichorn argues that because his arrest was unlawful, the warrantless search of
his truck cannot be supported as a search-incident-to-arrest. ECF No. 68 at 9–10. Because
I’ve concluded his arrest was not unlawful, this objection will be overruled. Mr. Eichorn
also argues that the search was unlawful “under the automobile exception.” Id. at 9. He
provides no argument to support this position. 	Regardless, Judge Elkins’s analysis is
correct. See ECF No. 65 at 20–21.
ORDER
Therefore, based on the foregoing, and on all the files, records, and proceedings
herein, IT IS ORDERED THAT:
1. 	Defendant’s Objections to the Order and Report and Recommendation [ECF
No. 68] are OVERRULED.
2. 	The Government’s Objection to the Order [ECF No. 69] is OVERRULED.
3. 	The Report and Recommendation [ECF No. 65] is ACCEPTED.
4. 	The Order [ECF No. 64] is AFFIRMED.
5. 	Defendant’s Motion to Dismiss the Indictment Based on Vindictive and
Selective Prosecution [ECF No. 37] is DENIED.
6. 	Defendant’s Motion to Suppress Statements [ECF No. 38] is DENIED AS
MOOT.
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7. 	Motion to Suppress Evidence Obtained Through Illegal Search and Seizure
[ECF No. 40] is DENIED.
Dated: February 17, 2026 	s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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