County Superior Court
Plaintiff: Meghan E. McDonough, Esq.
Defendant: Sinclair T. Banks, Esq.
State of Rhode Island (State) has charged Rudy L. Munoz
(Defendant) with one count of transfer of child pornography
in violation of G.L. 1956 §§ 11-9-1.3(a)(2) and
11-9-1.3(b) and one count of possession of child pornography
in violation of §§ 11-9-1.3(a)(4) and 11-9-1.3(b).
The Defendant appeals a Superior Court Magistrate's
denial of a Super. R. Crim. P. 9.1 Motion to Dismiss and four
interrelated motions. Jurisdiction is pursuant to G.L. 1956
following facts are gleaned from the criminal information
package. Detective Kevin Harris (Det. Harris), a detective
with the Coventry Police Department and member of the Rhode
Island Internet Crimes Against Children (ICAC) Task Force,
informed Detective Lieutenant Stephen Riccitelli (Det. Lt.
Riccitelli or Detective Lt. Riccitelli), also a member of
ICAC, that on December 24, 2014, Det. Harris connected
directly to Internet Protocol (IP) address 126.96.36.199 on a
peer-to-peer file sharing network and downloaded a number of
suspected child pornography files. After watching one of the
videos, Det. Lt. Riccitelli determined that its subject
matter, consisting of a prepubescent female giving an adult
male oral sex, constituted child pornography under §
on his training and experience, Det. Lt. Riccitelli knows
that peer-to-peer networks are typically free, easily
downloadable over the Internet, and used to share electronic
files with other users in the network. In addition, Det. Lt.
Riccitelli knows that users often utilize the peer-to-peer
network to share and obtain child pornography. The name of
the file viewed by Det. Riccitelli is "pthc pedo rare
deepthroat 5yo wow no gaging.mpg." In his affidavit
contained in the criminal information package, Det. Lt.
Riccitelli explained that "pthc" stands for
"pre-teen hard core." He further explained that
peer-to-peer network users can enter text-based search terms,
such as "pthc, " to obtain a list of other
users' files available for download that match the search
term. These files include the users' IP addresses. A user
can then select a specific file from the list to download.
the American Registry of Internet Numbers, Det. Lt.
Riccitelli determined that Cox Communications, Inc. owned IP
address 188.8.131.52. On February 5, 2015, in response to an
administrative subpoena, Cox Communications, Inc. provided
the name and address for the IP address subscriber: Rudy
Munoz, 120 Elmdale Avenue, Providence, Rhode Island 02909.
Through research and surveillance, Det. Lt. Riccitelli
confirmed that two individuals named Rudy Munoz with two
different dates of birth resided in the single-family
residence located at 120 Elmdale Avenue and that a car
registered under the name Rudy Munoz had been parked in the
March 13, 2015, a search warrant issued for the person of
Rudy Munoz, the 120 Elmdale Avenue premises, all computer
hardware, computer software, computer-related documentation,
records, documents, material and passwords or other data
security devices related to the acquisition, possession, and
transfer of child pornography. In addition, the search
warrant provided for an on-site forensic preview and off-site
forensic analysis of seized electronic evidence. On March 17,
2015, at 6:30 A.M., members of the ICAC Task Force, including
Det. Lt. Riccitelli, executed the search warrant. Upon
entering 120 Elmdale Avenue, ICAC Task Force members
encountered Rudy L. Munoz (Defendant), his mother, his
brother, his girlfriend, and his father, who is also named
Rudy Munoz. Detective Lt. Riccitelli explained to the
occupants that the ICAC Task Force had a search warrant
pursuant to an ongoing child pornography investigation.
time, Det. Lt. Riccitelli did not know which Rudy Munoz, the
son or the father, was the subscriber assigned to the IP
address. Detective Lt. Riccitelli decided that he would
interview Defendant first. Before the interview began, Det.
Lt. Riccitelli read Defendant his Miranda rights. See
Miranda v. Arizona, 384 U.S. 436, 456, 467 (1966). After
reading and signing the rights form, Defendant confirmed that
he understood his rights and expressed his willingness to
talk with the detectives. Detective Macera (Det. Macera) and
Det. Lt. Riccitelli interviewed Defendant in the bedroom. The
interview was audio recorded, transcribed, and included in
the criminal information package. See Witness
Statement of Defendant. During the interview, Det. Lt.
Riccitelli asked Defendant if he ever used any file sharing
software. Defendant responded, "I had one, but I removed
it." Id. at 13. He then told the detectives
that he used "Shareaza" and has
"BitComet" on his newer computer. Id. at
14. He explained to detectives that file sharing software
allows users to get files in "bits and pieces . . . from
different people to -- to view." Id. at 15.
Detectives then asked the Defendant if he looked at images or
videos of child pornography on his computer or cell phone.
Id. at 18. Defendant responded, "[c]ell phone,
no. Computer, once. But I -- I tried to delete it."
Id. He told the detectives it was a video depicting
"a young girl and a guy and I delete [sic] it when I saw
it." Id. He further stated that "[i]t was
just a blow job, and then I d- deleted it." Id.
at 19. The detectives then asked the Defendant the age of the
girl in the video. Id. He responded, "[a]round
twelve or something I think, eleven? Twelve/eleven."
Id. Detective Lt. Riccitelli asked Defendant what
search terms he entered to find the video on the peer-to-peer
network. Id. at 20. He responded that he searched
for "[y]oung girl giving blow jobs." Id.
When asked if he had videos or pictures, he responded,
"[n]ot pictures, I have videos usually."
Id. at 30. He was asked how many times he has
downloaded pictures or videos of child pornography.
Id. at 25. He stated "[a]round twenties
[sic]." Id. at 29. He then told the detectives
that the average age of the girls in the videos he has viewed
is "[t]welve to sixteen" and that he entered
"twelve-year-old or fourteen-year-old" as his
search terms on file sharing software. Id. at 30,
35. He also described the video that had been obtained by
Det. Harris from the IP address assigned to 120 Elmdale
Avenue as depicting a pre-pubescent female giving an adult
male oral sex. Id. at 19.
the interview, Det. Lt. Riccitelli concluded that
Defendant's father, Rudy Munoz, was the IP address
subscriber and that Defendant, Rudy L. Munoz, was the
individual in possession of and transferring child
pornography. Defendant was taken into custody and transported
to the Lincoln Woods State Police barracks. Police seized one
HP Pavilion laptop, one Sager laptop, and one HTC cell phone.
digital forensic report contained in the criminal information
package notes that on April 20, 2015, a forensic examination
of the HP Pavilion laptop uncovered seventy-five deleted
images of child pornography "depict[ing] nude
prepubescent females engaged in sexual acts, includ[ing]
bondage, and/or the graphic exhibition of their
genitals." Digital Forensic Examination Report, at 1.
The forensic report also includes descriptions of three of
the seventy-five images: (1) depicting "a nude
prepubescent female in a bathtub being urinated on by an
adult male[;]" (2) depicting "a prepubescent female
performing oral sex on an adult male while
handcuffed[;]" (3) depicting "a nude prepubescent
female being vaginally penetrated by an adult male's
penis." Id. at 3. The forensic analyst reported
that these images were found in unallocated space on the HP
Pavilion laptop and obtained through a data carving process.
Id. According to the forensic analyst, files located
in a computer's unallocated space contain no metadata
and, though they may have once been accessible, they are no
longer reachable by the user. Id.
31, 2015, the State filed a criminal information against
Defendant charging him with (1) the transfer of child
pornography in violation of §§ 11-9-1.3(a)(2) and
11-9-1.3(b) and (2) the possession of child pornography in
violation of §§ 11-9-1.3(a)(4) and 11-9-1.3(b). On
September 16, 2015, Defendant filed a Super. R. Crim. P. 9.1
motion to dismiss the criminal information along with a
supporting memorandum of law. On October 16, 2015, Defendant
filed a supplemental memorandum in support of his motion to
November 16, 2015, Defendant filed seven motions: (1)
"Motion for an order that the prosecution shall, in
their response to Defendant's Motion to Dismiss the
information, state their proposed jury instructions for the
two crimes charged under R.I.G.L. 11-9-1.3[;]" (2)
"Motion for the prosecution to be ordered to obtain
comprehensive immunity for defense counsel and defense
experts, failing which the case will be dismissed[;]"
(3) "Motion . . . for the Court and the prosecution to
explain, precisely, what the defense can lawfully do
to defend Mr. Munoz in this case, consistent with his rights
to effective assistance of counsel and a fair trial[;]"
(4) "Motion to exclude from the trial any and all
imagery of child pornography offered by the
prosecution[;]" (5) "Motion . . . for the
prosecution to produce the source code of the software the
police allegedly used to download alleged child porn from the
Defendant's computer[;]" (6) "Discovery
Motions: for an opportunity to inspect and test the seized
computers and imagery, for the prosecution's expert's
full report, and for the prosecution expert's
C.V.[;]" and (7) "Motion . . . for the prosecution
to be required to prove, by expert testimony, at a
preliminary evidentiary hearing before trial, that the
alleged child pornography imagery is of actual child
pornography not of virtual child pornography[.]" In
addition, Defendant filed a second supplemental memorandum in
support of his motion to dismiss.
January 4, 2016, Defendant filed his third supplemental
memorandum along with "Defendant's motion and memo
that the prosecution be ordered to declare immediately its
supporting inductive principles for its two inferential
claims that there is probable cause that: 1) actual
child porn was seized, and, 2) that the Defendant
knew the seized imagery was actual child
porn[.]" On June 7, 2016, Defendant filed his fourth
supplemental memorandum. On July 13, 2016, Defendant filed
his fifth supplemental memorandum along with a "Motion
to transmit images in the Superior Court courtroom, during a
probable cause hearing, in order to support the
Defendant's Motion to Dismiss the case for lack of
14, 2016, the State filed its objection to Defendant's
motion to dismiss. On July 27, 2016, Defendant filed his
sixth supplemental memorandum. On August 22, 2016, Defendant
filed his seventh supplemental memorandum. On September 7,
2016, Defendant filed his eighth supplemental memorandum. In
addition, he filed a motion for four already filed and served
motions to be heard before the probable cause motion is ruled
upon, including the following: motion that the State provide
immunity for defense counsel and seek immunity for defense
counsel under federal law; motion that the Attorney General
and Judge explain how defense counsel can zealously do his
defense job without immunity; motion to show Judge
computer-generated imagery Youtube videos in court; and
motion that State provide its proposed jury instructions. On
September 19, 2016, Magistrate McBurney, as requested by
Defendant, heard the four motions prior to his probable cause
determination. The Magistrate ultimately denied these
motions. Subsequently, the Magistrate denied Defendant's
Super. R. Crim. P. 9.1 motion to dismiss for lack of probable
cause. No orders were entered at that time.
October 6, 2016, Defendant filed a notice of appeal of the
Magistrate's denial of his motion to dismiss. On October
14, 2016, Defendant filed a supplemental notice of appeal and
index of remaining appealed issues. On October 17, 2016,
Defendant filed the same notice of appeal and supplemental
notice of appeal and index of remaining appealed issues in
Kent County. Three days later, he again filed the same notice
of appeal and supplemental notice of appeal and index of
remaining appealed issues in Providence County. On January
30, 2017, Defendant filed his ninth supplemental memorandum.
On February 14, 2017, the State filed its objection to
Defendant's motion to dismiss. On February 27, 2017,
Defendant filed a motion and supporting memorandum to show
computer-generated-imagery (CGI) video images in the Superior
Court to Justices Montalbano and Matos, in support of his
appeal against his denied motion to dismiss, and in support
of his other appeals (against his other denied and
unaddressed motions). On the same date, Defendant filed a
memorandum in response to the State's objection.
April 13, 2017, Defendant refiled his second, fifth, sixth,
and seventh memoranda with this Court. He also refiled his
"Motion to transmit images in the Superior Court
courtroom, during a probable cause hearing, in order to
support the Defendant's Motion to Dismiss the case for
lack of probable cause" and his "Motion . . . to
show CGI video images in the Superior Court, to Justices
Montalbano and Matos, in support of his appeal against his
denied Motion to Dismiss, and in support of his other appeals
(against his other denied and unaddressed motions)[.]"
In addition, Defendant refiled his response memorandum to the
1, 2017, the Magistrate entered orders for the
Defendant's motions previously heard and denied on
September 19, 2016, including (1) denial of motion that
Attorney General provide immunity from state prosecution and
seek immunity from U.S. Attorney General's Office for
defense counsel; (2) denial of motion that Attorney General
and Judge explain how defense counsel can zealously do his
job without immunity from federal and state prosecution; (3)
denial of motion to show the Judge in Court two
hyper-realistic computer-generated-imagery Youtube videos as
relevant to probable cause motion to dismiss; (4) denial of
motion that at the probable cause stage, the Attorney General
provide its proposed jury instructions as to elements of
crimes charged; and (5) denial of motion to dismiss.
6, 2017, Defendant timely refiled his notice of appeal along
with his supporting memorandum after the Magistrate entered
the five separate orders. In addition, Defendant filed a
motion that the State make a copy of the seized evidence in
this case and deliver the copy to Defendant's expert in
Oregon. The docket sheet indicates that on June 13, 2017
(date stamped June 19, 2017), Defendant again filed his
notice of appeal of the Magistrate's orders and
of a Magistrate's Decision
Superior Court's review of Administrator/Magistrate
decisions is governed by § 8-2-11.1(d). Section
party aggrieved by an order entered by the
administrator/magistrate shall be entitled to a review of the
order by a justice of the superior court. Unless otherwise
provided in the rules of procedure of the court, the review
shall be on the record and appellate in nature. The court
shall, by rules of procedure, establish procedures for review
of orders entered by the administrator/magistrate, and for
enforcement of contempt adjudications of the
administrator/magistrate." Sec. 8-2-11.1(d).
2.9(h) of the Superior Court Rules of Practice presently
governs the standard of review. Rule 2.9(h) provides:
"The Superior Court justice shall make a de novo
determination of those portions to which the appeal is
directed and may accept, reject, or modify, in whole or in
part, the judgment, order, or decree of the magistrate. The
justice, however, need not formally conduct a new hearing and
may consider the record developed before the magistrate,
making his or her own determination based on that record
whether there is competent evidence upon which the
magistrate's judgment, order, or decree rests. The
justice may also receive further evidence, recall witnesses
or recommit the matter with instructions." Super. Ct.
9.1 Motion to Dismiss
addressing a motion to dismiss a criminal information, a
[Superior Court] justice is required to examine the
information and any attached exhibits to determine whether
the state has satisfied its burden to establish probable
cause to believe that the offense charged was committed and
that the defendant committed it."' State v.
Martini, 860 A.2d 689, 691 (R.I. 2004) (quoting
State v. Fritz, 801 A.2d 679, 682 (R.I. 2002));
see also State v. Reed, 764 A.2d 144, 146 (R.I.
2001); State v. Aponte, 649 A.2d 219, 222 (R.I.
1994). "A motion justice's review with respect to
the existence of probable cause (vel non) is limited
to 'the four corners of the information
package.'" State v. Baillargeron, 58 A.3d
194, 197 (R.I. 2013) (quoting State v. Young, 941
A.2d 124, 128 (R.I. 2008)). Furthermore, "the trial
justice should grant the state 'the benefit of every
reasonable inference' in favor of a finding of probable
cause." Young, 941 A.2d at 128 (quoting
State v. Jenison, 442 A.2d 866, 875-76 (R.I. 1982)).
Therefore, probable cause sufficient to support a criminal
information is established when, after taking into account
relevant facts and circumstances, a reasonable person would
believe that the charged crime occurred and was committed by
Defendant. See Martini, 860 A.2d at 691.
Constitutional Challenge to the Rhode Island ...