United States of America v. Mercer

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ORDER
Donovan Gene Mercer was convicted of violating 18 U.S.C. § 2252A(a)(5)(B) and
(b)(2) for accessing or attempting to access a computer disk that contains child
pornography. His conviction was affirmed on direct appeal and the district court denied his
subsequent 28 U.S.C. § 2255 motion for habeas relief on procedural grounds and without
an evidentiary hearing. He then requested a certificate of appealability from the Tenth
Circuit to challenge the district court’s denial of his motion. The Tenth Circuit granted his
request in part: it granted Defendant a certificate of appealability and vacated the portions
of the district court’s judgment denying (1) his claim challenging the accuracy of Trial
Exhibit 401, and (2) his claims of ineffective assistance of counsel related to Trial Exhibit
401, but denied a certificate of appealability as to all other claims raised in his motion.
Accordingly, the case was remanded to this Court for an evidentiary hearing on these two
issues and to enter a new judgment. For the reasons set forth below, the motion is denied.
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONOVAN GENE MERCER,
Defendant.
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Case No. CR-14-280-PRW
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Background
Defendant contends that the government submitted false evidence at trial, namely
Trial Exhibit 401,1 a summary exhibit listing the dates and times of child pornography file
downloads to Defendant’s computer. These files were downloaded to Defendant’s
computer using a program called Ares, and in pretrial discovery, the government produced
many Ares logs, like Hearing Exhibit 2,2 to the defense. Defendant claims that the times
listed in Trial Exhibit 401 were advanced five to six hours from those listed in the Ares
logs. This matters, he argues, because while he could have been home downloading files
at some of the times listed in Trial Exhibit 401, he has an alibi for at least some of the times
listed in the Ares logs.
Springing from this allegedly false evidence issue, Defendant also contends that his
trial counsel was ineffective for failing to fully explore these issues and make an alibi
defense.
Standard of Review
Federal prisoners may collaterally attack an otherwise final sentence with a motion
pursuant to 18 U.S.C. § 2255. Under § 2255, if a district court finds “that there has been
such a denial or infringement of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack,” then it must “vacate and set the judgment aside .
1 This exhibit was admitted at trial as Government Exhibit 401 and the evidentiary hearing
as Exhibit 3.
2 This exhibit was not admitted at trial but was admitted at the evidentiary hearing as
Exhibit 2.
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. . .”3 The defendant must demonstrate his right to relief by a preponderance of the
evidence.4
Evidentiary Hearing
An evidentiary hearing on Defendant’s § 2255 motion was held on August 27, 2019.
The defense put on no evidence. The government called computer forensic expert Robert
Harden to testify. In his testimony, Mr. Harden offered his expert opinion that the dates
and times of file downloads listed in Trial Exhibit 401 accurately reflect the local time in
Noble, Oklahoma, the location of Defendant’s computer, and thus accurately state the
actual local time of the file downloads.5 He explained that he reached this conclusion by
taking custody of Defendant’s hard drive, making a copy of the data on the hard drive, and
analyzing the data with a decryption tool called Internet Evidence Finder.6 This same data
was analyzed previously by Ken Rogers, the original FBI computer analyst, using a prior
version of Internet Evidence Finder to decrypt the hard drive data and then populate Trial
Exhibit 401.7 In Mr. Harden’s independent test, then, he used both the current version and
the version of Internet Evidence Finder used by Mr. Rogers to analyze the data and found
that the file download times in his recreated tests match those listed in Trial Exhibit 401.8
3 18 U.S.C. § 2255(b).
4 See United States v. Washington, 890 F.3d 891, 895 (10th Cir. 2018); United States v.
Ashton, 961 F. Supp. 2d 7, 11 (D.D.C. 2013).
5 Tr. of Evidentiary Hr’g 7:23–8:8, Aug. 27, 2019.
6 Id. 9:3–:8.
7 Id. 8:9–:24; 12:7–13:2.
8 Id. 12:7–13:13.
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Mr. Harden corroborated his findings by installing Ares to a computer, downloading a file
(a Bible reading guide) using Ares, and then using Internet Evidence Finder to analyze the
accuracy of the date and time Internet Evidence Finder stated that the file was downloaded.9
Based on this independent test, Mr. Harden found that Internet Evidence Finder accurately
stated the actual time he downloaded the Bible reading guide.10
Mr. Harden also addressed Hearing Exhibit 2, an Ares log that requires the addition
of five or six hours (depending on whether Daylight Saving Time was in effect) to
download times to reflect central time, the time zone of Noble, Oklahoma.11 He explained
that Hearing Exhibit 2 was created using a decryption tool other than Internet Evidence
Finder.12 He also testified of his belief that this tool states the download times differently
than Internet Evidence Finder because the tool believes that it needs to convert the times
to local time, when such a conversion is actually unnecessary because the times already
reflect central standard time.13
Defense counsel cross examined Mr. Harden.14
Findings of Fact
1. Trial Exhibit 401 was admitted into evidence in Defendant’s trial.15
9 Id. 18:3–19:7.
10 Id. 18:18–:19.
11 Id. 22:1–:23.
12 Id. 22:2–:4.
13 Id. 22:7–:9.
14 Id. 23:19.
15 Id. 34:25; 25:1.
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2. The information contained in Trial Exhibit 401 was populated by data that was originally
analyzed by FBI computer analyst Ken Rogers using an older version of the decryption
tool Internet Evidence Finder.16
3. The information contained in Trial Exhibit 401 was not populated by information from
Hearing Exhibit 2.17
4. Computer forensic expert Robert Harden analyzed a copy of the same data FBI computer
analyst Ken Rogers analyzed to populate Trial Exhibit 401.18
5. Computer forensic expert Robert Harden tested the accuracy of the file download time
information contained in Trial Exhibit 401 and concluded that it correctly reflects the local
time in Noble, Oklahoma (Central Standard Time).19
6. He did this by analyzing the data contents of a hard drive that was seized from Defendant
and that Mr. Rogers analyzed to populate Trial Exhibit 401.20
7. By using the current version and prior version of Internet Evidence Finder used by Mr.
Rogers, Mr. Harden confirmed the accuracy of the dates and times listed in Trial Exhibit
401.21
8. Mr. Harden corroborated his findings by performing his own independent test to determine
the correct file download time of the data that populates Trial Exhibit 401. He installed
16 Id. 16:7–:15.
17 Id. 14:9–:14.
18 Id. 8:9–:24.
19 Id. 25:1–:19.
20 Id. 8:9–:25; 9:3–8.
21 Id. 12:7–13:13.
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Ares to a computer and downloaded a Bible reading guide, and then processed the relevant
data through the current and prior version of Internet Evidence Finder used by Mr. Rogers
and found the dates and times listed in the outputs for both versions to be accurate.22
9. The Court has been presented with no evidence that Trial Exhibit 401 is inaccurate.
10. Hearing Exhibit 2, an Ares log produced to defense counsel, was not admitted into evidence
at Defendant’s trial.23
11. A decryption tool other than Internet Evidence Finder was used to create the information
in Hearing Exhibit 2.24
12. Mr. Harden believes that this tool determines the accurate download time (in this case,
central time), but then unnecessarily subtracts five or six hours in its ultimate information
output. As a result, the addition of five or six hours is required to undo this unnecessary
conversion and to reflect the actual time of download in central time.25
Conclusions of Law
1. The Defendant did not establish by a preponderance of the evidence that he is entitled to
relief because the evidence shows that the dates and times listed in Trial Exhibit 401 are in
fact accurate.
22 Id. 18:8–19:7.
23 Id. 35:1–:3.
24 Id. 22:2–:4.
25 Id. 22:1–:23.
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2. Since the dates and times listed in Trial Exhibit 401 are accurate, the use of Trial Exhibit
401 against Defendant at trial did not violate his constitutional rights because his conviction
was not obtained using false evidence.
3. Since the dates and times listed in Trial Exhibit 401 are accurate, the failure of Defendant’s
trial counsel to show him certain discovery and to pursue an alibi defense do not equate to
ineffective assistance of counsel. Defendant was not prejudiced by these inactions and the
performance of Defendant’s trial counsel was not deficient.
Conclusion
Accordingly, the Court DENIES Defendant’s Motion Under 28 U.S.C. §2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. 147).
IT IS SO ORDERED this 23rd day of September, 2019.
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