UNITED STATES OF AMERICA v. ALAN J. DISOMMA, JR CRIMINAL ACTION NO. 5:22-cr-00227 United States District Court, S.D. West Virginia Filed November 07, 2023 Aboulhosn, Omar J., United States Magistrate Judge ORDER AND PROPOSED FINDINGS AND RECOMMENDATION *1 On November 6, 2023, the parties came before the undersigned for a hearing concerning several matters: the Defendant's hand-written[1] Second Motion to Dismiss Indictment as a Matter of Law (ECF No. 76), Motion to Dismiss for Fast and Speedy Trial Violation (ECF No. 85), Motion to Retain Expert Witness (ECF No. 86), Motion to Compel Attendance of Witness (ECF No. 87), and Motion Requesting Access to Defendant Cell Phone (ECF No. 99), as well as the Response of the United States to Defendant's Second Motion to Dismiss Indictment (ECF No. 91), Response of the United States to Defendant's Motion to Dismiss Based on Speedy Trial Violations (ECF No. 93), Response of the United States to Defendant's Motion to Retain Expert Witness (ECF No. 92), Memorandum in Opposition to Defendant's Motion to Compel Attendance of Witness (ECF No. 96) and its supporting exhibits (ECF Nos. 96-1, 96-2), and finally, the Response of the United States to Defendant's Motion Requesting Access to Defendant Cell Phone (ECF No. 106). For the reasons stated herein, the Court finds that the Defendant's motions should be denied.[2] BACKGROUND On December 20, 2022, an indictment was returned against the Defendant charging him with violating 18 U.S.C. §§ 2422(b) and 2423(b) – attempted enticement of a minor and traveling in interstate commerce for the purpose of engaging in illicit sexual activity (ECF No. 11). The indictment charges that, on or about December 10, 2021, through on or about December 18, 2022, the Defendant used cellular networks and the internet to knowingly attempt to persuade, induce, entice and coerce two minors who had not attained the age of 18 years to engage in sexual activity, and on or about December 18, 2022, the Defendant traveled from Payson, Arizona to Charleston, Kanawha County, West Virginia, for the purpose of engaging in illicit sexual conduct. ARGUMENTS Defendant's Second Motion to Dismiss: In support of his second motion to dismiss, the Defendant argues the charging statute is vague, violating his due process rights, and again contends that pursuant to Russell[3], the United States' law enforcement agents engaged in outrageous government conduct that shocks the conscience, and absent this conduct, the crime would not have happened. The Defendant also asks the Court to consider his version of the events that transpired during his communications with the undercover agent – he was plotting to have her arrested for sexually exploiting her minor daughters, plus exposure to drug use and poor living conditions. The Defendant was very concerned about their welfare, and was trying to get the undercover agent's address so that he could alert authorities. When he was arrested, the Defendant had electronic devices and other gifts he planned to give to the minor girls, not sex toys or other paraphernalia like others similarly charged. His plan was to accompany the undercover agent to her home, when he could then call police and get help for the girls. *2 The Defendant also asserts that his free speech rights under the First Amendment is protected, which includes his text messages during this sting operation, and that text messaging is not a crime. The Government's case is without merit, as it has presumed the Defendant's intent. The Government's conduct was the primary factor in charging the Defendant, using “fake” minors, does not reflect the legislative intent behind the statute, and the statute does not facially prohibit the Defendant's actions. Further, the Defendant restates that the charging statute is vague, overbroad, and ambiguous, to the extent its application violates his due process rights, and should be resolved in his favor. In response, the United States incorporates by reference to the factual allegations in support of the offenses contained in the indictment, as well as its arguments against the Defendant's prior motion to dismiss due to entrapment (See ECF Nos. 26, 30, 30-1). The United States argues that a grand jury deemed the factual allegations set forth in this matter sufficiently demonstrated intent to commit a crime, and the Defendant's selective narrative of the events and his alleged good intentions are questions for a jury. The United States further notes that the use of “fake” minors is not dispositive on the constitutional viability of the statutes, it is the Defendant's intent that matters: the Fourth Circuit understood this rationale in United States v. Kelly, 510 F.3d 433, 440-441 (4th Cir. 2007) when it denied a motion to dismiss based upon the fact that no actual minor was involved. Moreover, a substantial number of prosecutions for violations of these statutes involve the use of fictional minors, and the use of undercover agents posing as parents of fictional minors, and the resulting convictions have been routinely upheld in this Circuit. The United States also disputes the Defendant's claim that the statutes are vague – a plain reading of the statutes provides sufficient notice to the Defendant what criminal activity is prohibited. Despite the Defendant's attempt to demonstrate vagueness by pointing out his factual interpretation of the case regarding his intent, this does not render the unambiguous statutes unconstitutionally vague. Again, this is resolved by the jury system. In sum, the United States asks this Court to deny this motion. Defendant's Motion to Dismiss for Speedy Trial Violation: The Defendant next argues that the indictment be dismissed based on violations to his right to a speedy trial. He notes his arrest on December 18, 2022 and his initial appearance on December 19, 2022 when he mentioned he had early onset dementia. However, the Defendant asserts that he had demanded a speedy trial when he was represented by counsel at the time, and would not waive it – his trial was initially scheduled for February 14, 2023. The Defendant also notes that based on his early onset dementia claims, the Court sent him off for an evaluation at Fort Worth Federal Medical Center, and following receipt of the evaluation report, during a hearing on May 31, 2023, the Court granted the Defendant's request for a second psychological evaluation. On September 8, 2023, the Defendant states he again appeared before the Court which had deemed him competent to stand trial, and a trial would begin the second week of November. The Defendant argues that the “tolling of time should stop” at September 8, 2023, when the “dementia issue was finally settled” and that he has spent at least 120 days, or at most 175 days, waiting for trial. In response, the United States sets forth the procedural history in this case[4], and points out that due to the Defendant's competency allegations, District Judge Volk entered an order committing the Defendant for a period of thirty days to undergo a competency evaluation (See ECF Nos. 40, 41). District Judge Volk explicitly determined the time between February 14, 2023 and “the date in which a new trial date will be scheduled upon receipt of the preceding report” was excludable under the Speedy Trial Act, 18 U.S.C. § 3161. Following receipt of the evaluator's report on April 17, 2023, District Judge Volk scheduled a competency hearing for April 27, 2023, but the Defendant moved to continue it due to his counsel's scheduling conflicts and the Defendant had not yet returned to the Southern District of West Virginia. A hearing was held on May 31, 2023 during which the Defendant asked for a second competency evaluation – District Judge Volk granted the Defendant's motion and made explicit Speedy Trial Act findings on the record. The Defendant requested an extension of time to complete his second evaluation, and then filed an amended motion, which District Judge Volk granted by Order entered July 10, 2023, directing the evaluation to be completed by August 25, 2023 (See ECF No. 65). District Judge Volk determined “the time necessary to determine the Defendant's mental competency” was excludable under the Speedy Trial Act. Before the second competency evaluation took place, on August 9, 2023, the Defendant filed a motion asking to proceed pro se; District Judge Volk set a hearing on the motion for September 1, 2023. In the meantime, District Judge Volk received the results of the second competency evaluation on August 24, 2023 and ordered the competency hearing be held contemporaneously with the Defendant's motion to proceed pro se. *3 The hearing on both matters eventually took place on September 8, 2023, and the Defendant was found competent to stand trial and to proceed pro se; the trial was scheduled to begin on November 7, 2023 (See ECF No. 83). Thereafter, District Judge Volk entered an order sua sponte continuing the trial to December 12, 2023, and determined that the time between November 7, 2023 and December 12, 2023 was excludable under the Speedy Trial Act in order to permit the resolution of the Defendant's pending pretrial motions (ECF No. 89). While the United States concedes that pursuant to pertinent jurisprudence, the delay between the Defendant's arrest and trial, which is nearly one year, tends to indicate presumptive prejudice to the Defendant, the foregoing procedural history demonstrate that the reasons for the delay tip in favor of the United States: the majority of the delay was due to the Defendant's own competency allegations and motion to extend deadlines to attend a second competency evaluation. The Defendant asked to proceed pro se, which was granted by District Judge Volk, and even allowed a nearly two-month continuance of trial so that the Defendant could familiarize himself with the Federal Rules of Evidence and Criminal Procedure to prepare for trial. The Defendant has filed numerous pretrial motions that the United States has responded to, and the Court continued the trial another month on its own to allow for timely resolution of same. There is no evidence that the United States intentionally delayed the trial in this case, or that it had improper motive to do so. While it is conceded that the Defendant demanded a speedy trial, the Defendant has not shown any prejudice by the delay. Further, while the Defendant does not explicitly cite a Speedy Trial Act violation, the United States again notes that the causes for the delays are primarily due to the Defendant's competency allegations. The Defendant has filed numerous pretrial motions, including four to dismiss the indictment, all of which remain pending, thus the time between January 17, 2023 and the present does not count toward the seventy-day clock pursuant to the Act. Also, only twenty-seven days passed between December 21, 2022, when the Defendant made his initial appearance, and January 17, 2023, when he filed his initial pretrial motions to dismiss, therefore, the seventy-day clock has not expired pursuant to the Act. In sum, the United States asks this Court to deny this motion. Defendant's Motion to Retain Expert Witness: The Defendant also requests this Court approve funding so that he may retain Bonnie Burkhardt as an expert witness to testify in his case. He asserts that she is an expert on due process issues concerning charges under 18 U.S.C. §§ 2422(b), 2423, having authored a book on the subject; the Defendant contends this evidence would be beneficial at trial. The United States responds that while the Defendant should have filed such a motion ex parte, he still must demonstrate with specificity why this expert is required. The United States further notes that due process violations are matters of law that are not properly introduced as evidence by a defendant at trial. Also, the Defendant has not filed any motions to suppress any evidence, and only seeks Ms. Burkhardt's testimony for trial, not for pretrial purposes. Since the proffered testimony would not be admissible at trial as to any viable defense, the United States asks this Court to deny the motion. In the event the Court grants this motion, the United States requests the Court require the Defendant to make all appropriate expert disclosures pursuant to Rule 16(b)(1)(C) of the Federal Rules of Criminal Procedure, and upon such disclosure, the United States will notice its intent to request a Daubert hearing. Defendant's Motion to Compel Attendance of Witness: *4 The Defendant also moves the Court to compel the appearance of West Virginia State Trooper J.B. Yeager pursuant to a subpoena to testify about her investigation of the Defendant. The Defendant states he received a letter dated October 2, 2023 from Special Agent John J. Nickum that the Defendant needed to provide a summary of the testimony sought and its relevance to the proceeding pursuant to Touhy regulations.[5] The Defendant states that since Trooper Yeager is the only investigator involved, she needs to be compelled to testify about the “outrageous government conduct”, and he is not seeking documents or papers, suggesting Touhy is inapplicable. In response, the United States argues that in addition to the Department of Justice's (DOJ) notification of the requirements the Defendant must meet to obtain authorization for Trooper Yeager to testify at the pretrial motions hearing, the Defendant was advised that ultimately, it is up to the Federal Bureau of Investigation (FBI) in consultation with the DOJ to decide if she may testify. Regardless, the Defendant did not serve a proper Touhy request as required by 28 C.F.R. § 16.23(c) which provides that an affidavit or statement seeking testimony setting forth a summary of the testimony sought, he merely filed a motion to compel. To that extent, the United States moves to quash the subpoena that Trooper Yeager be compelled to testify for pretrial motions hearing purposes. The United States points out that numerous decisions in this Circuit have followed Touhy, finding that it is required prerequisite to obtaining documents, testimony, or other information from the FBI/DOJ or current/former employee of the FBI/DOJ – the Defendant's pro se status is not an exception to this requirement. The United States requested the Defendant comply with 28 C.F.R. § 16.23(c) via letter (ECF Nos. 96-1, 96-2), but he refused, having filed a motion to compel instead. Additionally, the United States moves to quash the subpoena of Trooper Yeager as her testimony is not required for the resolution of the pretrial motions pending before this Court at this stage of the proceedings. Defendant's Motion Requesting Access to His Cell Phone: The Defendant indicates he wants to compare his text messages with the undercover agent (Trooper Yeager/a.k.a. Julie Duncan) from his cell phone with the one provided by the Government. He contends that the version of the text messages provided by the Government appears redacted and does not tell the full story – that the Defendant intended to report “Duncan” to police for criminal activity. In response, the United States notes that due to his incarcerated status, the Defendant is not permitted by the facility to possess a cell phone, but the United States will provide two sets of PDF documents that are complete extractions from two different cell phones of the text messages between the Defendant and the undercover officer. The United States represents that one extraction report contains 503 pages that has already been produced in discovery (identified as “DISOMMA-0005-0141”) and the other extraction report contains 8 pages of messages sent by the Defendant from a different phone, but does not include any response message from the undercover agent because the Defendant mistyped the agent's cell phone number. The Defendant also communicated with the agent from a third phone and those PDF messages have been produced already (identified as “DISOMMA-0142-0153”), but those messages were not recovered from any of the cell phones seized from the Defendant. The United States that the two extraction reports will be mailed to the Defendant at the Southern Regional Jail and a courtesy electronic copy will be provided to his Advisory Counsel. DISCUSSION *5 As to the Defendant's Second Motion to Dismiss, the Court once again adopts and incorporates by reference its earlier findings and conclusion that this motion should be denied (See ECF No. 34): during this most recent hearing, the Defendant brought nothing new to the table suggesting the United States, through its undercover agent, engaged in any conduct that shocks the conscience or that the United States induced him to commit a crime. Moreover, while the Defendant alleges a different perspective or take on the United States' allegations, the Court FINDS that the reconciliation of these diverging narratives are within the province of the jury. Accordingly, the undersigned hereby respectfully PROPOSES that the District Judge confirm this foregoing finding and RECOMMENDS that the District Judge DENY the Defendant's Second Motion to Dismiss Indictment as a Matter of Law (ECF No. 76). As to his motion to dismiss for speedy trial rights violations, the Court notes that most of the delays were caused by the Defendant himself, and further, he alleges nothing to suggest the United States unduly delayed his trial or had an improper motive for doing so. Additionally, the Court has explicitly found following each continuance in these proceedings such time frames were excludable under the Speedy Trial Act, as noted by the United States, supra. In any event, having evaluated whether the Defendant's speedy trial right has been violated under the pertinent legal principles, particularly when considering that there are still pending pretrial motions that the Defendant had filed before this Court, the undersigned FINDS the circumstances here do not support the Defendant's argument.[6] Accordingly, the undersigned hereby respectfully PROPOSES that the District Judge confirm this foregoing finding and RECOMMENDS that the District Judge DENY the Defendant's Motion to Dismiss for Fast and Speedy Trial Violation (ECF No. 85) As for his motion to retain an expert witness, there is no question that the Defendant failed to comply with the requirements under Rule 16(b)(1)(C) by making the appropriate expert disclosures, however, the Defendant is free to explore this line of defense, and has able Advisory Counsel to assist him in this pursuit. Nevertheless, because the Defendant has signaled his intentions for this expert witness concerns a defense strategy and/or whether the United States' proffered evidence in this matter should be suppressed, clearly, this concerns a stage of these proceedings that does not concern the undersigned, but the District Judge (See ECF No. 28). Moreover, to the extent that the Defendant has argued that he intends the witness to testify about matters that concern due process violations or warrantless searches, the undersigned is mindful that typically, courts do not hear expert testimony regarding Fourth Amendment or constitutional issues. As noted by the United States, there are no pending motions to suppress evidence in this matter, but regardless, the undersigned has no authority to decide what evidence or witness testimony would be admissible at trial. (Id.) To the extent the Defendant moves to retain an expert witness for the pretrial motions proceedings before the undersigned, the Motion to Retain Expert Witness (ECF No. 86) is DENIED. *6 Regarding the Defendant's motion to compel the appearance of Trooper Yeager, the undersigned notes that the Defendant again appears to raise factual defenses to the United States' allegations at trial, and is a question for the jury, not for this Court. In any event, it appears that the Defendant has had every opportunity to comply with the requirements pursuant to 28 C.F.R. § 16.23(c), as he admits he received letters notifying him what he needed to do to in order to obtain this witness's appearance to testify at trial. Because the Defendant has failed to comply with the necessary prerequisite to ensure Trooper Yeager's appearance for pretrial motions purposes, the Motion to Compel Attendance of Witness (ECF No. 87) is therefore DENIED, and to the extent the United States has moved to quash the subpoena for a pretrial motion hearing before the undersigned, that motion is GRANTED. Finally, regarding the Defendant's Motion Requesting Access to Defendant Cell Phone (ECF No. 99), the United States has demonstrated that it has produced, and will soon produce discovery that alleviates the Defendant's concerns to the extent the United States is permitted to do so given the Defendant's incarcerated status, which prohibits him from possessing a cell phone. The United States represents that it has produced discovery to the Defendant as it would have if he was represented by counsel – as a practical matter, cell phones are not turned over to defense counsel. Both Advisory Counsel for the Defendant and the Assistant United States Attorneys represented that they would meet after the hearing concerning the issues of alleged missing text messages and/or other communications that took place on the fetish website, and any other discovery matters raised by the Defendant. Accordingly, this Motion is DENIED as MOOT. In accordance with Rule 59(a) and (b) of the Federal Rules of Criminal Procedure governing rulings on both non-dispositive and dispositive motions, this ruling may be contested by filing objections no later than fourteen days from the date of filing this Order with District Judge Frank W. Volk. If objections are filed, the District Court will consider the objections and modify or set aside any portion of the Order found clearly erroneous or contrary to law. The Clerk is directed to send a copy of this Order to the Defendant, Advisory Counsel for Defendant, and to the Assistant United States Attorney. Footnotes [1] On September 11, 2023, the Court found the Defendant made a knowing, intelligent, and voluntary waiver of his Sixth Amendment right to counsel and permitted him to proceed pro se with Kristopher Faerber, Esq. to act as his advisory counsel. (ECF No. 82) [2] On January 24, 2023, the undersigned denied the Defendant's previous motions to dismiss (ECF No. 34) which is pending appeal before the District Judge (ECF No. 39). [3] The undersigned construes the Defendant's argument as it concerns the holding in United States v. Russell, 411 U.S. 423 (1973). [4] The undersigned is familiar with the case history and with the Defendant's competency allegations raised during the pretrial motions hearing on January 24, 2023 and will not belabor those points here, but acknowledges that the Defendant's “Motion to Clarify Record” as it concerned the Defendant's alleged early onset dementia issues was denied as moot because at the time the Defendant failed to demonstrate any such mental infirmities that would interfere with his ability to understand these proceedings (ECF No. 34 at 7). [5] Pursuant to United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951) (holding that federal employee could not be held in contempt for refusing to produce subpoenaed documents, where his refusal was based on regulations prohibiting the disclosure of official information without prior authorization, and that such regulations do not invade a court's authority to determine admissibility of evidence). [6] “In order to properly assess whether a pretrial delay contravenes the Constitution's speedy trial guarantee, Supreme Court precedent requires the balancing of four considerations: (1) the length of delay; (2) the reasons therefor; (3) the timeliness and vigor of the assertion of the speedy trial guarantee; and (4) prejudice to the defendant.” See United States v. Hall, 551 F.3d 257, 271 (4th Cir. 2009) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972)). “To prevail on their speedy trial claim, the Defendant[ ] [is] obliged, under Barker, to establish ‘that on balance, [the] four separate factors weigh in his favor.’ ” Id. (quoting United States v. Thomas, 55 F.3d 144, 148 (4th Cir.1995)). In the matter before the undersigned, on balance, the Defendant is unable to demonstrate these four factors weigh in his favor that merits dismissal of this indictment.