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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

UNITED STATES OF AMERICA NO. 3:16-CR-306-D

v.

DARYL GLENN PAWLAK

UNITED STATES OPPOSITION TO DEFENDANTS

MOTION FOR LEAVE TO FILE UNTIMELY MOTION TO DISMISS

The United States of America, by and through the undersigned Assistant United

States Attorney, respectfully submits the following opposition to the defendants motion

for leave to file his untimely motion to dismiss the indictment. As discussed further

below, the defendants motion for leave should be denied.

By way of background, this is a child-pornography case. The defendant, Daryl

Glenn Pawlak, is not currently in custody. On July 18, 2016, this Court issued a criminal

trial scheduling order, setting trial for September 19, 2016. (Dkt. No. 8.) On August 15,

2016, the defendant moved to continue the trial setting in this case. (Dkt. No. 11.) On

August 16, 2016, this Court granted the defendants motion, and ordered that pretrial

motions be filed by October 24, 2016. (See Dkt. No. 12.) On October 24, 2016, the

defendant filed a motion to suppress but did not file a brief in support of his motion.

(Dkt. No. 19.) Pursuant to an agreed-upon briefing schedule ordered by this Court (see

Dkt. Nos. 22, 23), on November 18, 2016, the defendant filed his brief in support of his

motion to suppress. (Dkt. No. 24.) On December 23, 2016, the United States filed its

opposition to the motion to suppress. (Dkt. No. 27.) The parties are currently seeking a

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continuance of the trial setting and related deadlines, tied to resolution of the pending

motion to suppress, to allow the parties sufficient time to prepare for an anticipated trial

in this case. (See Dkt. No. 33.)

The defendants request for leave to file another motion two months late should be

denied. The proposed untimely motion raises one argument as the basis for the

defendants requested relief: that the governments investigation into Playpen, a child-

pornography hidden-services site, constitutes outrageous government conduct. But this

argument was already briefed in the defendants suppression brief that he filed on

November 18, 2016. In addition to being largely duplicative, the defendants proposed

motion to dismiss does not address a key legal requisite that the defendant must show in

order to raise the defense set forth in his motion. As addressed in the United States

opposition to the defendants motion to suppress, this defendant is barred from raising

this claim because he cannot (and does not try to) show that he was not an active

participant in the conduct for which he is charged. See, e.g., United States v. Carriles,

541 F.3d 344, 361 (5th Cir. 2008) (reversing dismissal of the indictment and finding no

basis for a finding of outrageous conduct because the defendant was an active, willing

participant in the conduct for which he was charged with a crime). The proposed

untimely motion to dismiss does not address this deficiency.

Further, the defendant does not explain why he did not timely file the motion to

dismiss by the motions deadline, nor does he explain why he did not seek leave to file the

motion to dismiss in November. The substance of the motion, along with the timing of

its filing, suggest that its purpose is to further delay resolution of this case.

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Accordingly, the United States respectfully requests that the Court deny the

defendant leave to untimely file his proposed motion to dismiss the indictment.

DATED: December 29, 2016

Respectfully submitted,

JOHN R. PARKER
UNITED STATES ATTORNEY

/s/ Jamie L. Hoxie

Jamie L. Hoxie
Assistant United States Attorney
New York Reg. No. 4671160
1100 Commerce Street, Third Floor
Dallas, Texas 75242
Telephone: 214-659-8779
Fax: 214-659-8812
Email: Jamie.Hoxie@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on December 29, 2016, I electronically filed the above filing

with the Clerk of Court for the United States District Court, Northern District of Texas,

using the electronic case filing system of the Court. Said filing provided electronic notice

and access to this document to opposing counsel of record.

/s/ Jamie L. Hoxie

Jamie L. Hoxie
Assistant United States Attorney

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