United States v. McCoy (678 F. Supp. 2d 1336, 2009)

SANDS, District Judge.

Presently pending before the Court are Defendant’s Motion for Extension of Time (Doc. 36); Defendant’s Motion to Dismiss the Indictment for Improper Venue (Doc. 33); Defendant’s Motion to Dismiss the Indictment on Multiple Grounds of Preclusion and Estoppel (Doc. 34); Defendant’s Motion to Unseal Transcripts of Grand Jury Proceedings (Doc. 41); Defendant’s Motion to Dismiss Indictment on Grounds of Government Misconduct Before the Grand Jury (Doc. 50); Defendant’s Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 70); Defendant’s Amended Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 72); Government’s Motion for Enlargement of Pages (Doc. 74); Defendant’s Motion to Strike (Doc. 76); and Defendant’s Motion for Continuance (Doc. 122).

For the following reasons, Defendant’s Motion for Extension of Time (Doc. 36) is DENIED as moot; Defendant’s Motion to Dismiss the Indictment for Improper Venue (Doc. 33) is DENIED and the Court will not grant leave for an interlocutory appeal of the issue; Defendant’s Motion to Dismiss the Indictment on Multiple Grounds of Preclusion and Estoppel (Doc. 34) is DENIED; Defendant’s Motion to Unseal Transcripts of Grand Jury Proceedings (Doc. 41) is DENIED; Defendant’s Motion to Dismiss Indictment on Grounds of Government Misconduct Before the Grand Jury (Doc. 50) is DENIED; Defendant’s Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 70) is DENIED as moot; Defendant’s Amended Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 72) is DENIED; Government’s Motion for Enlargement of Pages (Doc. 74) is GRANTED; Defendant’s Motion to Strike (Doc. 76) is DENIED as moot; and Defendant’s Motion for Continuance (Doc. 122) is DENIED.

PROCEDURAL BACKGROUND

The various motions were filed and fully briefed by Defendant and the Government mainly between August 22, 2008 and February 13, 2009. A hearing regarding Defendant’s four (4) Motions to Dismiss and other pending motions was held on February 27, 2009. (Docs. 101, 111). After the Court granted several Motions to Continue Trial in the Interest of Justice (see Docs. 25, 99, 105), trial has been set for the Court’s January 2010 Albany Term. (Doc. 119).

FACTUAL SUMMARY

Defendant, a resident of Minnesota, is a fiction writer. As many authors tend to do, Defendant’s body of work pertains to a particular range of subject matter. In Defendant’s case, according to the Indictment against him, the preferred literary milieu is “obscene ‘fantasy’ stories describing in explicit and graphic detail the sexual abuse, rape, and murder of children.” (Doc. 1 at 2). At all times relevant to the Indictment, Defendant’s fiction was posted on the Internet.

After Defendant’s writings came to the attention of federal authorities during the child pornography prosecution of a separate criminal defendant, federal agents from the Middle District of Georgia conducted an investigation into Defendant. (Doc. 37 at 1 to 2). In 2005 and 2006, an undercover agent engaged in email correspondence with Defendant in which Defendant provided links to websites on which his writings could be obtained. (Doc. 37 at 3 to 7). The agent activated the links and downloaded numerous stories attributed to Defendant from the websites into the Middle District of Georgia. (Doc. 37 at 7). One of the websites, www.youngstuff.com, was hosted in the Southern District of Texas; another website, ftp.asstr.org, was hosted in the Northern District of California. (Doc. 37 at 2, 7). All of the stories were allegedly written and posted by Defendant in the District of Minnesota. (Doc. 37 at 6).

On June 13, 2007, the Grand Jury in the Middle District of Georgia returned a one-count Indictment against Defendant charging a violation of 18 U.S.C. § 1462, Transportation of Obscene Matters. (Doc. 1). Expressly included in the charge is Defendant’s aiding and abetting liability under 18 U.S.C. § 2. (Doc. 1 at 1 to 2). The Indictment alleges that Defendant “did knowingly use an interactive computer service for carriage in interstate and foreign commerce obscene matters, and [did] aid and abet persons known and unknown to the grand jury in the use [of] an interactive computer service for carriage in interstate and foreign commerce obscene matters.” (Doc. 1 at 1). Providing alleged facts in support of the charge, the Indictment alleges that Defendant “used an interactive computer service to transmit to the Middle District of Georgia and elsewhere, links to three websites: www.young-stuff.com/frank,ftp.asstr.org/ pub/Authors/Frank_McCoy/index.htm; and www.mrdoubleena.com/htm/frank/ index.htm; ... from which web sites the obscene stories were downloaded into the Middle District of Georgia and elsewhere.” (Doc. 1 at 1-2). In relevant part, 18 U.S.C. § 1462 provides that: “Whoever ... knowingly uses any ... interactive computer service ... for carriage in interstate or foreign commerce— (a) any obscene, lewd, lascivious, or filthy ... writing ... or other matter of indecent character; ... — Shall be fined under this title or imprisoned....” 18 U.S.C. § 1462.

On November 21, 2005, one-and-a-half years prior to the Indictment’s issuance, Federal Magistrate Judge Franklin L. Noel of the District of Minnesota had issued an Amended Order in which he denied the Government’s application for a search warrant of Defendant’s home there. (Doc. 84-2 at 5). In the Amended Order, Judge Noel stated that to issue the search warrant, “this Court, applying contemporary Minnesota standards, must conclude that the fictional stories described in the affidavit meet the Miller [v. California ] standard.” (Doc. 34-2 at 4 (emphasis added)). Judge Noel described the Miller standard as: “a state could outlaw works that, applying contemporary community standards, depict or describe specific sexual conduct in a patently offensive way and which taken as a whole do not have serious literary, artistic, political, or scientific value.” (Id.). Judge Noel concluded that:

In light of the language used by the Supreme Court in Ashcroft [v. Free Speech Coalition], and in light of the evolution of community standards since the Court decided Miller, this Court is unprepared to conclude that the depraved fictional stories described in the affidavit submitted in support of the Search Warrant are obscene, within the meaning of Miller v. California.... The written works at issue in the instant search warrant application appear to be available only to those, like the investigators in this case, who expressly seek such content.... As the Court is unwilling to subscribe to the Government’s effort to criminalize the written word, it is unable to conclude that there is probable cause to believe that evidence of any crime will be found on the computers the Homeland Security Agent seeks to search.

(Doc. 34-2 at 4 to 5).

The Government appealed Judge Noel’s ruling. (Doc. 34-2 at 6 to 10). On December 2, 2005, Federal District Court Judge Ann D. Montgomery, also of the District of Minnesota, issued a Memorandum Opinion and Order denying the Government’s appeal and adopting Judge Noel’s Amended Order. (Doc. 34-2 at 11). Judge Montgomery stated that “the pivotal issue is whether the writings expected to be found at the premises described in the search warrant constitute obscene, lewd, lascivious, or filthy writings.” (Doc. 34-2 at 13). But, Judge Montgomery said, “the Court is not prepared to hold that the writings are obscene under the definition of Miller.” (Doc. 34-2 at 14). Judge Montgomery gave four reasons for her ruling. First, “[wjhile many persons, including this Court, find the materials at issue depraved and disturbing, community standards have significantly evolved since Miller.” (Id.). Second, the stories “are not publically available on the internet; rather, the ICS agent specifically requested them in an email.” (Id.). Third, “the writings themselves are replete with warnings that the material contained within could be considered objectionable.” (Id.). Finally, based upon a reading of Ashcroft, “[gjiven the fictional nature of the writings ... the warrant must be denied.” (Id.). Judge Montgomery concluded, “In sum, the Court agrees with Judge Noel’s declaration that he is not willing to participate in the criminalization of the written word, available only to those who specifically seek it out.” (Id.).

In the hours prior to Judge Noel’s initial Order denying the Government’s search warrant application, Magistrate Judges in both the Northern District of Texas and the Middle District of Georgia had granted search warrants to the Government in relation to the investigation and prosecution of Defendant. (Doc. 51 at 18 n. 1).

Defendant alleges that the Government, while serving its role as prosecutor in the Grand Jury process, did not submit the Orders of Judge Noel and Judge Montgomery to the Grand Jury for its deliberation. (Doc. 50 at 3 n. 1 and accompanying text). The Government has not affirmed or denied Defendant’s allegation. (See Doc. 58 at 8 (describing the facts regarding the Grand Jury); see generally Doc. 58). The transcripts of the Grand Jury’s proceedings are sealed. (Cf. Doc. 41).

DISCUSSION

I. DEFENDANT’S MOTION FOR EXTENSION OF TIME (Doc. 36)

Defendant’s Motion for Extension of Time (Doc. 36) requests an adjustment of the time periods set in the Court’s Order of July 18, 2008 (Doc. 31) for the filing of a proposed briefing schedule. This issue was addressed by both Defendant and the Government in the motion hearing of February 27, 2009. (Doc. Ill at 102-43). The Court, however, notes that Defendant has successfully filed four (4) Motions to Dismiss since filing his Motion for Extension of Time (Doc. 36). (See Docs. 33, 34, 50, 72). Thus, Defendant’s Motion for Extension of Time (Doc. 36) is DENIED as moot.

II. DEFENDANT’S MOTION TO DISMISS THE INDICTMENT FOR IMPROPER VENUE (Doc. 33) AND ADDENDUM THERETO (Doc. 35)

Defendant’s Motion to Dismiss the Indictment for Improper Venue (Doc. 33) argues that the Middle District of Georgia is an improper venue for the criminal trial of Defendant under the charges alleged in the Indictment. Furthermore, Defendant’s Addendum to Motion to Dismiss for Improper Venue (Doc. 35) asserts that should the Court deny Defendant’s Motion to Dismiss the Indictment for Improper Venue (Doc. 33) then Defendant should be permitted to raise the issue to the Eleventh Circuit on interlocutory appeal. For the following reasons, Defendant’s Motion to Dismiss the Indictment for Improper Venue (Doc. 33) is DENIED, and the Court will not grant leave for an interlocutory appeal of the issue.

As an initial matter, the Court finds the Indictment to be valid on its face. The Indictment “contains the elements of the offense intended to be charged,” it “sufficiently apprises the defendant of what he must be prepared to meet,” and because it tracks the language of 18 U.S.C. § 1462, the Indictment is “accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.” Russell v. United States, 369 U.S. 749, 763, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); see United States v. Bobo, 344 F.3d 1076, 1083 (11th Cir.2003). Because the Indictment is valid on its face and Defendant has failed to show it to be otherwise invalid, the Court may continue to address the alleged jurisdictional deficiencies raised by Defendant.

In briefs and oral argument, Defendant repeatedly argues that the Indictment does not allow for criminal venue in this District because the Indictment does not assert that Defendant transported obscene matter into this District. “Instead,” argues Defendant, “the indictment alleges only that the defendant told someone in this district where such material may be found — which is insufficient for the establishment of venue here; ... defendant’s alleged actus reus did not occur in any part of this district.” (Doc. 38 at 9). Further argues Defendant: “In short, the indictment fails to allege that [Defendant] disseminated anything that was obscene anywhere, let alone having disseminated it through or into this district.” (Doc. 33 at 8). As the Court understands Defendant’s argument, Defendant is asserting that because the face of the Indictment charges him with using a computer to transmit into this District links to three website addresses — www.young-stuff.com/frank, ftp.asstr.org/pub/Authors/Frank_McCoy/ index.htm, and www.mrdoubleena.com/ htm/frank/index.htm — rather than any actual allegedly obscene writing, venue in this District is improper even if the recipient of the message containing the links to three website addresses later visited those websites and transmitted the allegedly obscene material into this District. The Court emphasizes for the purposes of its ruling that the Indictment charges Defendant only with sending links to three website addresses to this District; Defendant is not charged with directly sending to this District any allegedly obscene writing. (See Doc. 1).

At oral argument, the Government repeatedly argued that the charged conduct “is the transportation of the links to an undercover agent in Georgia.” (Doc. Ill at 21). Under this approach, the Government and Defendant appear in accord regarding the nature and circumstances of the charged conduct. And if this were indeed the sole position on which the Government stood, then the Court would agree with Defendant that venue is improper in this District in this case. The Court would side with Defendant because the Court would find that the text of the links themselves (e.g., “www.young-stuff. eom/frank,” “ftp.asstr.org/ pub/Authors/Frank_McCoy/index.htm,” and “www.mrdoubleena.com/htm/frank/index. htm”), viewed in an email message separate and apart from the website content, is not obscene as a matter of law under the three-factor test established by the Supreme Court in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Straining to find words in the text of the links that could even be arguably obscene, the Court finds that neither “young-stuff,” “asstr,” nor “mrdoubleena,” viewed separately or together and by the most puritanical standards, “appeal[ ] [solely] to the prurient interest” or “depiet[ ] or describe[ ], in a patently offensive way, sexual conduct specifically defined by” Georgia law. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

The Government, however, states an alternative and more-favorable position in its Response to Motion to Dismiss the Indictment for Improper Venue (Doc. 37). The Government’s brief asserts that Defendant’s allegedly illegal conduct was his causing the allegedly obscene writings to be transmitted via a computer to this District from Texas and California when the links for www.young-stuff.com and ftp. asstr.org that had been emailed by Defendant were activated by the recipient in this District. (Doc. 37 at 11). The Court understands the Government’s argument to be that Defendant aided and abetted those servers in their interstate transportation of the allegedly obscene material to this District.

The Government argues, and the Court agrees, that this theory of criminal liability is supported by the Eleventh Circuit’s unpublished opinion, United States v. Hair, 178 Fed.Appx. 879 (11th Cir.2006). In Hair, a case involving transmission of images of child pornography under a separate statute, the Eleventh Circuit found “ample evidence that the defendant aided and abetted Yahoo in actually transferring the images of child pornography.” Hair, 178 Fed.Appx. at 885. The Eleventh Circuit based its finding on the Government’s evidence “that the defendant had the intent to transmit images to the undercover agent, and [that] by setting up and using the Yahoo server and the ‘briefcase’ function, Hair caused Yahoo — without the knowledge of the company — to violate § 2252A(a)(l).” Id. The evidence had shown that the Hair defendant had sent to the undercover agent “an email with ‘links’ to a Yahoo ‘briefcase’ containing child pornography.” Id. at 882.

The facts in Defendant’s case, as alleged by the Government and charged in the Indictment, are strikingly similar to those in Hair. The facts, if proven by the Government, indicate that Defendant, by emailing to this District the links to the websites, aided and abetted the servers for www.young-stuff.com and ftp.asstr.org in making interstate transmissions of the allegedly obscene writings to this District. In light of the Eleventh Circuit’s reasoning in Hair and the similarity of the current facts to that opinion, the Court finds the Government’s theory persuasive.

Building upon its theory of liability, the Government’s brief argues under United States v. Bagnell that “the interstate shipment of [obscene] materials are continuing offenses that occur in every judicial district which the material touches.” United States v. Bagnell, 679 F.2d 826, 830 (11th Cir.1982). Bagnell explains that 18 U.S.C. § 1462 is a statute covered by the venue provisions of 18 U.S.C. § 3237(a), “which declares that any offense ‘involving ... Transportation In Interstate commerce’ is a continuing offense that may be prosecuted in any district in which the crime took place” including “the district in which the materials were received.” Id. at 831; see also Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 583, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (“If a publisher chooses to send its material into a particular community, this Court’s jurisprudence teaches that it is the publisher’s responsibility to abide by that community’s standards.”). The Government’s stance, therefore, is that by aiding and abetting in the continuing offense of transmitting allegedly obscene writings, Defendant is subject to prosecution in this District, wherein the allegedly obscene writings were received.

Defendant attempts to counter in his written Reply to the Government’s Response (Doc. 38) that the undercover agent who activated the links to the website addresses “is the only entity to whom ‘transportation’ could be attributed ... as it was his affirmative act of going to a web site and downloading the stories that constituted ‘transportation.’ ” (Doc. 38 at 6 (emphasis Defendant’s)). Defendant supports this position by arguing that while “the Texas and California based companies were in possession of computers on which the stories were located, neither of those companies has been alleged to have performed any act remotely resembling ‘transportation.’ ” (Id.).

Defendant’s position, however, does not seem technically correct, particularly in light of Hair and the Supreme Court’s description of Internet operations in Reno v. Am. Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). For the purposes of this case, the Court understands the operations of the Internet to be that servers are the sources from which electronic information is transmitted to a user. Cf. Hair, 178 Fed.Appx. at 882 n. 3 (“The briefcase and its contents are actually ‘located’ on an internet server, which is controlled by the owner/operator of the website. In this case, Yahoo owned the server on which the briefcase was located.”); Hair at 885 (“We conclude that there was ample evidence that the defendant aided and abetted Yahoo in actually transferring the images of child pornography.”). The Supreme Court explains that:

“[H]ost” computers [are] those that store information and relay communications .... Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation.... Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods .... The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers.... In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world.

Reno v. Am. Civil Liberties Union, 521 U.S. 844, 850-54, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). In less tech-sawy terms, a server or “host” is a necessary middleman that stores the creator’s electronic content and transmits it to the recipient. Defendant’s counterargument appears to discount this fact, apparently asserting instead that the content was simply waiting somewhere to be snatched by the recipient. The Court does not find that this theory comports with reality, particularly in light of the Supreme Court’s observation that “[u]nlike communications received by radio or television, ‘the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial.’ ” Reno, 521 U.S. at 854, 117 S.Ct. 2329. The realistic theory is the Government’s: that the servers transmitted the allegedly obscene stories to this District, that Defendant allegedly aided and abetted this transmission, and that Defendant properly faces prosecution in this District. Venue, therefore, is not improper in the Middle District of Georgia.

For the reasons articulated above, Defendant’s Motion to Dismiss the Indictment for Improper Venue (Doc. 33) is DENIED.

Defendant’s Addendum to Motion to Dismiss for Improper Venue (Doc. 35) asserts that this Court’s denial of his improper venue motion should be immediately appealable to the Eleventh Circuit. (Doc. 31 at 1). The Court does not agree that Defendant’s improper venue claim carries the same imminent constitutional considerations as a claim of double jeopardy or a prosecution touching the Speech or Debate Clause. (See Doc. 35 at 2 to 3). Contrary to Defendant’s assertion that the Indictment “fails to establish constitutional criminal venue in [this] district” (Doc. 35 at 4), the Court’s reasoned legal analysis above clearly establishes that venue is proper in this District under the Indictment. Were the Court to grant leave for an interlocutory appeal under these circumstances, then this Court and the Eleventh Circuit would be flooded with requests for interlocutory appeals from virtually every future denial of an improper venue motion. The Eleventh Circuit has clearly stated that “an immediate appeal will not lie from an order pertaining to venue in a criminal case.” United States v. Snipes, 512 F.3d 1301, 1301-02 (11th Cir.2008) (“[T]his Court lacks jurisdiction over this appeal under the collateral order doctrine. We conclude that an order pertaining to venue is effectively reviewable after entry of judgment ” (emphasis added).). This Court must follow the Eleventh Circuit’s clear precedent, particularly where the order is unlikely to be granted on appeal and the appeal would serve only to unnecessarily further delay disposition of the case. Therefore, the Court refuses to grant leave for an interlocutory appeal of the Court’s denial of Defendant’s Motion to Dismiss the Indictment for Improper Venue (Doc. 33).

III. DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON MULTIPLE GROUNDS OF PRECLUSION AND ESTOPPEL (Doc. 34)

Defendant’s Motion to Dismiss the Indictment on Multiple Grounds of Preclusion and Estoppel (Doc. 34) asserts that the pair of Orders from the District of Minnesota, issued in November and December of 2005, which denied the Government’s request for a search warrant of Defendant’s home by finding that no crime of obscenity had occurred, caused the criminal prosecution of Defendant to be “litigated to a conclusion.” (Doc. 34 at 8). Therefore, argues Defendant, “the indictment against him must be dismissed on one or another ground of preclusion.” (Doc. 34 at 9). The grounds of preclusion that Defendant cites in his Motion are (i) res judicata; (ii) collateral estoppel; (iii) law of the case doctrine; (iv) judicial estoppel; and (v) equitable estoppel. (Doc. 34 at 22). In its Response, the Government states that Defendant’s claims are “erroneous” and should be denied. (Doc. 51 at 17). At oral argument, the Parties focused exclusively on Defendant’s res judicata grounds of preclusion. (See Doc. Ill at 33 to 61). Guided therefore by the emphasis provided by the Parties — and particularly by Defendant — the Court’s following Discussion will focus mainly upon res judicata. For the following reasons, Defendant’s Motion to Dismiss the Indictment on Multiple Grounds of Preclusion and Estoppel (Doc. 34) is DENIED.

A. Res Judicata

1. Parties’ Arguments

Defendant argues in his Motion that “[sjince the Minnesota litigation culminated in final judgments on the merits, any subsequent claim, anywhere, based on the same showing faces a judgment bar, as claims that are the subject of final judgments on their merits are entitled to res judicata effect.” (Doc. 34 at 10). Defendant bases this argument on an Eleventh Circuit case from 1994, which cites and quotes a 1990 Eleventh Circuit decision for the proposition that “a federal court must apply federal law to determine the preclusive effect of a prior federal court decision,” and that “[t]he doctrine of res judicata in federal law prohibits ‘the filing of claims which were raised or could have been raised in an earlier proceeding.’ ” United States v. Barnette, 10 F.3d 1553, 1561 (11th Cir.1994) (quoting Citibank, N.A. v. Data Lease Fin. Corp., 904 F.2d 1498, 1501 (11th Cir.1990)); (see Doc. 34 at 9 to 10). Defendant recognizes that res judicata “prevents collateral attack on the result of a completed lawsuit between the same parties” (Doc. 34 at 10), “is inapplicable unless the earlier case proceeded to final judgment on the merits” (id. (citing Bradford v. Bronner, 665 F.2d 680, 682 (5th Cir.1982))), and “requires that respect be accorded the prior judgment.” (Doc. 34 at 11). Defendant catalogs examples from case law regarding the “binding res judicata effect in a subsequent private federal action under 42 U.S.C. § 1983” of “a state court’s determination of probable cause” (Doc. 34 at 11 to 13), and uses those examples to argue that “if federal courts afford state-court probable cause determinations (that constitute final judgments on the merits) res judicata effect — then surely a federal court would extend the same to another court.” (Doc. 34 at 13). Based on this recognition, Defendant concludes that “the written opinions of Judge Noel and Judge Montgomery constitute final and binding judgments as to the government’s claim” and therefore that “the government is barred from attempting to relitigate the claim while shopping around the country for a favorable ruling from a court that it believes may be more friendly.” (Doc. 34 at 14).

The Government’s Response states that Defendant had failed to provide “any authority for its proposition that the denial of an application for a federal search warrant in the District of Minnesota constitutes a ‘final judgment’ precluding ... a Middle District of Georgia grand jury from returning an indictment.” (Doc. 51 at 17 to 18). Based on Seventh Circuit precedent, the Government argues that “the denial of an application for a search warrant does not preclude the Government from presenting the very same application to a second magistrate in the same district.” (Doc. 51 at 18 (citing United States v. Pace, 898 F.2d 1218, 1230-31 (7th Cir.1990) and United States v. Savides, 658 F.Supp. 1399, 1402 (N.D.Ill.1987), and citing as contra United States v. Davis, 346 F.Supp. 435, 442 (S.D.Ill.1972))). Therefore, argues the Government, “the denial of a search warrant application could not possibly constitute a ‘final judgment’ affecting the authority of a grand jury in another district from making a probable cause determination.” (Id.). The Government further argues, under Supreme Court precedent, that “a magistrate judge’s ruling regarding an application for search warrant has no bearing on any matter other than that particular application being presented at that time.” (Doc. 51 at 18-19 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.”))). Finally, looking at the facts of the instant case, the Government observes that the Opinions from the District of Minnesota were not the first findings regarding probable cause: Federal Magistrate Judges in the Northern District of Texas (Hon. Irma C. Ramirez) and the Middle District of Georgia (Hon. Richard L. Hodge) had earlier granted search warrants regarding this criminal matter, albeit by a matter of hours. (Doc. 51 at 10 to 11, 18 n. 1). Therefore, the Government argues, “if one were to accept the reasoning of the defense with respect to the affect [sic] of a magistrate’s ruling on an application for search warrant, the [N.D. Tex. and M.D. Ga.] rulings that probable cause existed ... would control since they were entered ... prior to [Judge Noel] entering his order and amended order.” (Doc. 51 at 18 n. 1).

Defendant’s Reply argues that his previous cataloguing of “citations discussing the binding res judicata effect, in federal litigation, of prior state court probable cause determinations” provides ample case law regarding final judgment. (Doc. 47 at 3). Based upon two District Court opinions from separate districts in Illinois, Defendant argues that preclusive effect should be given to both a magistrate’s refusal to sign a search warrant (Doc. 47 at 3 (citing United States v. Davis, 346 F.Supp. 435, 442 (S.D.Ill.1972))), and a magistrate’s refusal to sign if the government is given the chance to appeal that refusal (id. (citing United States v. Savides, 658 F.Supp. 1399, 1404 (N.D.Ill.1987))). Defendant therefore argues that, based on the facts from the District of Minnesota wherein the Federal Magistrate Judge’s refusal to issue a search warrant was memorialized in a written order and the appeal to the District Court Judge was denied on constitutional grounds in a memorandum opinion and order, “[t]here can be no doubt ... that what happened ... had all the hallmarks of a final judgment between these same parties, on the same matter.” (Doc. 47 at 3 to 4). Following a cataloguing of cases in which he emphasizes the proposition that an essential element of res judicata doctrine is the opportunity to fully and fairly litigate a claim (Doc. 47 at 4 to 5), Defendant also cites case law stating that a “final order of judgment” requires “some clear and unequivocal manifestation by the trial court of its belief that the decision made, so far as [the court] is concerned is the end of the case.” (Doc. 47 at 5 (quoting Illig v. Union Elec. Co., 334 F.Supp.2d 1151, 1155 (E.D.Mo.2004))). Defendant concludes that because all of the hallmarks of res judicata were present, “leaving nothing remaining to be done with respect to the litigation,” the District of Minnesota Orders “constitute a final judgment[ ] and present a res judicata bar to re-litigation of the case.” (Doc. 47 at 5 to 6).

At oral argument, Defendant introduced two Supreme Court cases from the 1925 term for the proposition that a district judge’s refusal to vacate a warrant is a final decree. (Doc. Ill at 40 to 44). Aside from this addition, no new argument was introduced at the hearing. (See Doc. Ill at 33 to 61).

2. Court’s Analysis and Conclusion

Turning initially to Defendant’s recitation of the elements of res judicata in his Reply brief, the Court finds that the search warrant “claim” was not fully and fairly litigated (see Doc. 47 at 4 to 5) because one party to the present litigation — Defendant—was not even involved in the Minnesota presentations, deliberations, or determinations. The only parties participating were the Government, the Federal Magistrate Judge, and, later, the District Court Judge. Furthermore, while Defendant argues that a “final order of judgment” requires “some clear and unequivocal manifestation by the trial court of its belief that the decision made, so far as [the court] is concerned is the end of the case” (Doc. 47 at 5), the Orders from the District of Minnesota submitted by Defendant clearly lack such language. Judge Noel’s Order only denies the search warrant application, albeit with the disclaimer that “the Court is unwilling to subscribe to the Government’s effort to criminalize the written word.” (Doc. 34-2 at 5). Judge Noel did not indicate that the case was concluded as far as he was concerned. Likewise for Judge Montgomery’s decision, which ultimately adopts Judge Noel’s ruling and denies the search warrant application. (Doc. 34-2 at 15). Nowhere does Judge Montgomery state that judgment has been rendered and the case closed. In fact, Judge Montgomery indicates an expectation of a future search warrant application in her proposition that “[i]f the search warrant application contained any indication that any of the nineteen stories were descriptions of actual events the author perpetrated or witnessed, the outcome may well be different.” (Doc. 34-2 at 14 (emphasis added)). Even under Defendant’s own definition of res judicata, then, the facts of this case do not satisfy all of the requirements.

Defendant’s definition of res judicata, however, is inapplicable in the context of this case. The Supreme Court stated in 1948 that “res judicata ... applies to criminal as well as civil proceedings ... and operates to conclude those matters in issue which the verdict determined though the offenses be different.” Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948) (emphasis added). Nearly three decades later, the old Fifth Circuit interpreted Sealfon and its progeny to phrase “the criminal res judicata doctrine” in the following terms: “A question or issue determined by a prior acquittal may not be relitigated in a criminal proceeding against the same person.” Douthit v. Estelle, 540 F.2d 800, 803 n. 5 (5th Cir.1976) (emphasis added). Douthit remains good law in the Eleventh Circuit. See United States v. Hewitt, 663 F.2d 1381, 1387-88 (11th Cir.1981) (citing Douthit for the proposition that “no collateral estoppel operated to bar prosecution”); see also Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (adopting as binding precedent in the Eleventh Circuit all former Fifth Circuit decisions rendered before October 1,1981).

The cases relied upon by Defendant do not deal with the res judicata effect of one criminal case upon another criminal case. Rather, the cases cited by Defendant— including United States v. Barnette — deal with the preclusive effect of either a criminal case upon a subsequent civil case or a civil case upon another civil case. In Barnette, for example, the defendant in a civil damages suit arising out of a criminal RICO conviction argued that the government should have been barred from bringing the civil suit because it could have brought the civil claims as part of the criminal trial. United States v. Barnette, 10 F.3d 1553, 1561 (11th Cir.1994). The Eleventh Circuit observed that “the doctrine of res judicata often has been held not to bar a civil case brought subsequent to a criminal trial.... Barnette has not cited any case from any jurisdiction that even hints that a prior criminal restitution order is res judicata against a subsequent damages action.” Id. at 1561-62. Because Defendant’s cited cases come from contexts inapplicable to the instant matter — one criminal case’s preclusive effect on a second criminal case — his definition of res judicata is consequently inapplicable here. The Court will apply the definition that is appropriate here: that from Douthit and, earlier, Sealfon.

In the instant case, the Court finds that there has been no previous criminal “verdict,” Sealfon at 578, 68 S.Ct. 237, or “acquittal,” Douthit at 803 n. 5, and thus res judicata does not preclude the Grand Jury’s subsequent criminal Indictment. The previous occurrences at issue are the separate Orders issued by a Federal Magistrate Judge and a District Court Judge denying the Government’s application for a search warrant on grounds that no crime had been committed under those Judges’ interpretations of Supreme Court precedent. Those decisions were not, as Defendant argues, final judgments on the merits. They were merely denials of a search warrant application where evidence was being sought to support a potential allegation of a criminal violation.

The only Federal Court of Appeal to consider the question found that the Fourth Amendment “on its face does not prohibit the government from seeking a second magistrate’s approval to search when another magistrate denies a search warrant” and flatly rejected “[a] blanket rule barring the government from resubmitting a warrant application to a second magistrate.” United States v. Pace, 898 F.2d 1218, 1230-31 (7th Cir.1990). Instead, the Seventh Circuit held that the Fourth Amendment’s requirements were only “whether the magistrate really was ‘neutral and detached,’ and whether probable cause actually existed, not how many magistrates the government applied to before finally obtaining a warrant.” Id. at 1231 (emphasis added). Because the Supreme Court’s opinion in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), allows for the validity of a search warrant even when the supporting affidavit contains knowingly false information so long as the other material in the warrant affidavit suffices to show probable cause, the Seventh Circuit reasoned that “[t]here is even less reason to suppress evidence from a search pursuant to a warrant issued by a magistrate who properly found probable cause based strictly on facts that the warrant affiant honestly and reasonably believed” although the request had been denied by a previous magistrate. Pace, 898 F.2d at 1231. The Seventh Circuit made this decision in full contemplation of the two district court decisions on which Defendant heavily relies in both his briefings and oral argument: United States v. Savides— which was the case on direct appeal to the Seventh Circuit — and United States v. Davis.

The Supreme Court decisions from the 1925 term that were introduced by Defendant at oral argument are unavailing. In Steele v. United States No. 2, the Supreme Court held that a District Court’s “refusal to vacate the search warrant and to return the liquor seized was a final decree” and “is therefore res judicata as against” the defendant, a Prohibition-era bootlegger. Steele v. United States, 267 U.S. 505, 507, 45 S.Ct. 417, 69 L.Ed. 761 (1925). As explained in Steele No. 1, the National Prohibition Act provided for a judge or commissioner to issue a search warrant to seize liquor and its containers following a finding of probable cause, but if probable cause was controverted or a seized item was not described in the warrant then the property was to be returned. Steele v. United States, 267 U.S. 498, 500-01, 45 S.Ct. 414, 69 L.Ed. 757 (1925). In an attempt to obtain his seized whiskey, the Steele defendant had attacked the issuing commissioner’s probable cause determination, but the District Court had denied the defendant’s motion to vacate the search warrant. Id. at 499-500, 45 S.Ct. 414. In Steele No. 1, the Supreme Court found the search warrant sufficient and affirmed the District Court’s ruling. Id. at 505, 45 S.Ct. 414. In Steele No. 2, the Supreme Court addressed the question of whether the search warrant had been properly executed. Steele, 267 U.S. at 506, 45 S.Ct. 417. To arrive at the question, the Supreme Court first tackled the defendant’s failure to raise the issue in the court below, which rendered the defendant “not in a position to raise the question” because “[t]he refusal to vacate the search warrant and to return the liquor seized was a final decree. The question is therefore res judicata against him.” Id. at 507, 45 S.Ct. 417. The Supreme Court then launched into a discussion of why the District Court’s ruling would be upheld even if the instant defendant were in a position to raise the question. Id. at 507-10, 45 S.Ct. 417. Before concluding, however, the Supreme Court restated that “the fact of the existence of probable cause in the issue of the search warrant was res judicata, made so by the judgment of the court in the case preceding that the property could not be returned to Steele.” Id. at 511, 45 S.Ct. 417.

Defendant has not convinced the Court that the attachment of res judicata effect to a District Court’s denial of a defendant’s motion to vacate a search warrant under the National Prohibition Act logically leads to res judicata effect attaching to a District Court’s denial of the Government’s application for a search warrant under Federal Rule of Criminal Procedure 41. For starters, assuming the Steele cases survived the end of the Prohibition era, Steele had been limited by a subsequent Supreme Court decision. In Cogen v. United States, the Supreme Court found that where “it is apparent that the motion to quash the search warrant [and for return of the property] is an incident merely; that the real purpose of the application is to suppress evidence; and that it is but a step in the criminal case preliminary to the trial thereof ... the order made on the motion is interlocutory merely.” Cogen v. United States, 278 U.S. 221, 227, 49 S.Ct. 118, 73 L.Ed. 275 (1929). The District of Columbia Circuit explained that Cogen “narrowed the scope of Steele No. 2 even as to orders arising out of the separate proceedings provided in the National Prohibition Act.” Nelson v. United States, 208 F.2d 505, 517-18 n. 54 (D.C.Cir.1953) (citing Cogen, 278 U.S. at 226, 49 S.Ct. 118). Thus, the proposition from the Steele cases on which Defendant relies applies only to motions for the return of property under the National Prohibition Act. Furthermore, and quite simply, a judge’s ruling that probable cause exists is different than a ruling that probable cause is lacking. A finding of probable cause is an affirmation that the Government has adduced evidence sufficient to meet a certain constitutional threshold. Such a finding is generally permanent; barring Governmental misconduct, the Government’s evidence does not risk wilting below the threshold in the future. On the other hand, a finding that probable cause is lacking states nothing more than that the Government has not yet met the threshold. Nothing prevents the Government from gathering more evidence and making more attempts until the threshold is achieved, similar to the Supreme Court permitting the Government to submit its evidence to later grand juries following a grand jury’s return of no true bill. See United States v. Thompson, 251 U.S. 407, 414-16, 40 S.Ct. 289, 64 L.Ed. 333 (1920). A finding of no probable cause, then, is not permanent. Therefore, assuming that Steele No. 2 reaches to the present day and instant circumstances, 'its holding nevertheless does not apply in this case to render the District of Minnesota Orders res judicata.

The Court finds that, because the Fourth Amendment and Franks v. Delaware allow for the re-application of a previously denied search warrant request, a Federal Magistrate Judge’s denial of a search warrant application cannot be a final judgment on the merits. Accord Pace, 898 F.2d at 1230-31. Nor, it follows, is a Federal District Court Judge’s adoption on appeal of that Federal Magistrate Judge’s denial a final judgment on the merits. Pursuant to this finding, the Orders of Judge Noel and Judge Montgomery have no res judicata effect on the subsequent criminal Indictment returned by the Middle District of Georgia Grand Jury against Defendant.

B. Collateral Estoppel

1. Defendant’s Argument

Defendant argues that “in any subsequent litigation involving the same class and character of fictional stories (under the same or similar facts), relitigation (by the government) of the constitutional issues that were resolved by the Minnesota court is collaterally estopped.” (Doc. 34 at 10). Defendant also cites case law that “there is some authority that the requirement [of finality of the prior judgment] is more relaxed for collateral estoppel or issue preclusion.” (Doc. 47 at 6 (quoting Kaspar Wire Works, Inc. v. Leco Eng’g & Machine, Inc., 575 F.2d 530, 538 n. 11 (5th Cir.1978))).

2. Court’s Analysis and Conclusion

For the reasons explained above that the District of Minnesota decisions regarding the search warrant applications were not “litigations,” the collateral estoppel doctrine, as defined by Defendant, is inapplicable to this case. And as with his res judicata argument, Defendant’s definition of collateral estoppel suffers from being culled from the incorrect context. Kaspar Wire Works was a patent infringement matter, applying the civil notion of collateral estoppel. See Kaspar Wire Works, 575 F.2d at 532.

Collateral estoppel in the criminal context “is a narrow exception to the Government’s right to prosecute a defendant in separate trials for related conduct.” United States v. Quintero, 165 F.3d 831, 835 (11th Cir.1999) (quoting United States v. Brown, 983 F.2d 201, 202 (11th Cir.1993)). Collateral estoppel applies in the criminal context “when an issue of ultimate fact has once been determined by a valid and final judgment.” Id. (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)). In other words, collateral estoppel “bars a subsequent prosecution only where a fact or issue necessarily determined in the defendant’s favor in the former trial is an essential element of conviction at the second trial.” United States v. Magluta, 418 F.3d 1166, 1174 (11th Cir.2005) (quoting Brown, 983 F.2d at 202). In the Eleventh Circuit, an analysis of criminal collateral estoppel is comprised of two steps. United States v. Ohayon, 483 F.3d 1281, 1286 (11th Cir.2007). “First, the Court must decide whether it can ascertain the basis of the acquittal at the first trial.” Quintero, 165 F.3d at 835 (quoting United States v. Garcia, 78 F.3d 1517, 1521 (11th Cir.1996)). “More precisely, a court must determine whether the jury’s verdict of acquittal was based upon reasonable doubt about a single element of the crime which the court can identify.” Magluta, 418 F.3d at 1174 (quoting Brown, 983 F.2d at 202). “Second, the court must determine whether the elements of the crime upon which the prior acquittal was based are also essential elements of the crime for which the defendant is to be retried.” Quintero, 165 F.3d at 835 (quoting Garcia, 78 F.3d at 1521).

Clearly, criminal collateral estoppel does not apply to the current case. Defendant has not yet faced trial. Defendant has not been acquitted. And Defendant is not currently facing a second trial in which the elements of a previous acquittal are essential. As explained above, the Court does not find that the Orders from Judge Noel and Judge Montgomery were valid and final judgments for purposes of res judicata or collateral estoppel. Therefore, collateral estoppel is inapplicable here.

C. Law of the Case Doctrine

1. Defendant’s Argument

Defendant states that “[t]he law of the case doctrine ... prevents collateral attacks against the court’s rulings during the pendency of a lawsuit.” (Doc. 34 at 10). Defendant asserts that “[t]he rationale on which the law of the case doctrine is based is the same as that for stare decisis — when a district judge has rendered a decision in a case, and the case is later transferred to another judge, the successor should not ordinarily overrule the earlier decision.” (Doc. 34 at 11 (citing Loumar, Inc. v. Smith, 698 F.2d 759, 762 (5th Cir.1983))).

2. Court’s Analysis and Conclusion

Nowhere does the Docket indicate that this case has been transferred from any other court. {See Docket). Therefore, the law of the case doctrine, as defined by Defendant, is inapplicable to this case.

In the Eleventh Circuit, “[t]he law of the case doctrine applies in both the civil and criminal context.” United States v. Means, 135 Fed.Appx. 293, 295 (11th Cir.2005) (citing Alphamed, Inc. v. B. Braun Medical, Inc., 367 F.3d 1280, 1286 n. 3 (11th Cir.2004)). The law of the case doctrine states that “an issue decided at one stage of a case is binding at later stages of the same case.” United States v. Escobar-Urrego, 110 F.3d 1556, 1560 (11th Cir.1997). In other words, “a decision of a legal issue or issues ... establishes the ‘law of the case’ and must be followed in all subsequent proceedings in the same case in the trial court or on a later appeal in the appellate court.” Id. at 1561 (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)). While the law of the case doctrine is an important policy, it “is not an inexorable command,” and exceptions exist if “the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.” Id. (quoting White, 377 F.2d at 431-32).

After examining the Orders by Judge Noel and Judge Montgomery, the Court finds that the issue decided by the District of Minnesota was the denial of the search warrant application. (See Doc. 34-2 at 5 (Judge Noel deciding that “The application for the Search Warrant must be DENIED”); Doc. 34-2 at 15 (Judge Montgomery denying the appeal and adopting Judge Noel’s Order regarding the search warrant)). The issue decided was not, as Defendant argues, the Judges’ refusal to find probable cause on constitutional grounds. While the refusal to “criminalize the written word” (Doc. 34-2 at 5) was an express component of the Judges’ Orders, the issue decided was not whether a crime had been committed but whether probable cause existed to issue a search warrant based upon “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Because the Grand Jury Indictment relies in no part upon the search warrant application denied by Judge Noel and Judge Montgomery, the law of the case doctrine is inapplicable as so presented by Defendant.

D. Judicial Estoppel

1. Parties’ Arguments

Defendant’s Motion argues that, while before the District of Minnesota the Government had stated the facts of the case as “McCoy emailed the stories” (Doc. 34-2 at 7) to the Middle District of Georgia, the Government’s version of the facts before the Middle District of Georgia has been that “McCoy sent an email into this district, instructing Agent Brant where his stories may be found.” (Doc. 34 at 15). Because of this inconsistency — that in one forum the Government said the email contained the stories, while in another forum the Government said the email contained only links to the stories — Defendant argues that “the government ought to be judicially estopped from asserting a factually inconsistent position in these proceedings.” (Doc. 34 at 16). Defendant argues that the facts of this case satisfy all three of the factors described by the Eleventh Circuit in Stephens v. Tolbert: “(1) whether a later position asserted by a party was clearly inconsistent with an earlier position; (2) whether a party succeeded in persuading a court to accept an earlier position, ‘so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled’; and (3) whether the party with an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” (Doc. 34 at 16 (quoting Stephens v. Tolbert, 471 F.3d 1173, 1177 (11th Cir.2006))).

The Government’s Response argues that the Government’s statement before the District of Minnesota “was (at worst) an inartful colloquial summarization of the facts set forth in Agent Shold’s affidavit, which were ... the same facts presented to the grand jury sitting in the Middle District of Georgia which returned the indictment.” (Doc. 51 at 21).

Defendant’s Reply observes that, in the Government’s Motion for Order to Unseal Case filed with the District of Minnesota on May 9, 2008 (Doc. 46-9), the Government again asserted the factual position that “McCoy had ... sent [these stories] via email to an undercover police officer in Georgia” (Doc. 46-9 at 1). (Doc. 47 at 9). Defendant argues that this version of the facts — that the email contained the stories — should “be characterized as the government’s consistently asserted position before [the Minnesota] court” and causes the Government’s argument in its Response to become “considerably less tenable owing to the fact that the representation was made twice.” (Doc. 47 at 9).

2. Court’s Analysis and Conclusion

The Stephens v. Tolbert factors are not, as Defendant argues, satisfied by the facts of this case. First, while it may appear inconsistent on the micro level to state in one forum that the email contained the stories and state in another forum that the email contained links to the stories, looking from the macro level — the totality of the case — this factual difference does not appear “clearly inconsistent.” Stephens, 471 F.3d at 1177. Although one version of the facts asserts Defendant’s principal liability and the other asserts accessory liability, these positions are not “clearly inconsistent” in light of the fact that “[a]iding and abetting need not be specifically alleged in the indictment; assuming the evidence supports it, the accused can be convicted of aiding and abetting so long as the jury is instructed on it.” United States v. Martin, 747 F.2d 1404, 1407 (11th Cir.1984). Defendant’s accessory liability was, it follows, always implied. Second, the Government clearly did not “sueceed[ ] in persuading a court to accept [the] earlier position,” Stephens, 471 F.3d at 1177, because the District of Minnesota denied the search warrant application. Third, the Government derives no “unfair advantage” nor imposes any “unfair detriment” on Defendant through this “inconsistent position,” Stephens, 471 F.3d at 1177, because no search warrant was obtained from the District of Minnesota — a detriment to the Government and an advantage to Defendant — and because it would be an absurdity to find that holding the parties to the true facts of the case is “unfair.” The facts are what they are.

Once again, Defendant draws mainly from a civil case — Stephens v. Tolbert was a false arrest claim — in support of his position rather than from criminal actions. To his credit, Defendant cites with a “see also” the Eleventh Circuit’s more-recent criminal decision of United States v. Cam-pa. (Doc. 34 at 16). Campa, though, does not assist Defendant. There, the Eleventh Circuit instructed that “[c]ourts consider two factors in determining whether to apply the doctrine [of judicial estoppel]: whether the ‘allegedly inconsistent positions were made under oath in a prior proceeding’ and whether such inconsistencies were ‘calculated to make a mockery of the judicial system.’ ” United States v. Campa, 459 F.3d 1121, 1152 (11th Cir.2006). The second factor is clearly not satisfied here: the Court finds that in no way were the Government’s inconsistent renditions of the facts of this case “calculated to make a mockery of the judicial system.” Campa, 459 F.3d at 1152. The Court, therefore, will not invoke judicial estoppel here.

E. Equitable Estoppel

1. Defendant’s Argument

Defendant’s Motion argues that the Court should impose equitable estoppel, and argues strenuously under United States v. Davis and United States v. Savides. (Doc. 34 at 17 to 21). Defendant concludes that “in the instant case the government was equitably estopped from convening the Middle District of Georgia Grand Jury upon the same showing that was the subject of the [sic] Judge Montgomery’s ruling on appeal.” (Doc. 34 at 21).

2. Court’s Analysis and Conclusion

Nowhere does Defendant state the standard this Court should apply in evaluating his claim for equitable estoppel. (See Doc. 34 at 17 to 21). Unlike judicial estoppel, which “protects the sanctity of the oath and the integrity of the judicial process,” equitable estoppel “is designed ‘to ensure fairness in the relationship between the parties.’ ” Bates v. Long Island R.R. Co., 997 F.2d 1028, 1037 (2d Cir.1993) (quoting Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C.Cir.1980)). More than a century ago, the Supreme Court stated that equitable estoppel is the “general proposition that, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.” Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed. 578 (1895). Modern federal courts have stated that the party seeking to invoke equitable estoppel “must have been an adverse party in the prior proceeding, must have acted in reliance upon his opponent’s prior position, and must now face injury if a court were to permit his opponent to change positions.” Konstantinidis, 626 F.2d at 937. Aside from arguing that he was the adverse party in the prior District of Minnesota search warrant deliberations, Defendant has shown neither reliance nor injury nor that the Government is attempting to change positions. Therefore, this Court will not apply equitable estoppel here.

For the foregoing reasons, Defendant’s Motion to Dismiss the Indictment on Multiple Grounds of Preclusion and Estoppel (Doc. 34) is DENIED.

IV. DEFENDANT’S MOTION TO DISMISS INDICTMENT ON GROUNDS OF GOVERNMENT MISCONDUCT BEFORE THE GRAND JURY (Doc. 50)

Defendant’s Motion to Dismiss Indictment on Grounds of Government Misconduct Before the Grand Jury (Doc. 50) asserts that the Government’s failure to inform the Grand Jury of the Middle District of Georgia of the refusal by the Federal Magistrate Judge and Federal District Court Judge in the District of Minnesota to issue search warrants rendered the Grand Jury unable to “independently make its probable cause determination” and “substantially influenced the Grand Jury’s decision to indict, in derogation of [Defendant’s] rights under the Fifth Amendment.” (Doc. 50 at 1). Defendant asserts that by failing to submit the District of Minnesota Orders to the Grand Jury, the Government caused a “material omission” that amounts to “prosecutorial misconduct.” (Doc. 50 at 8). Defendant asserts that the necessary remedy is “dismissal of the indictment in this case.” (Id.). For the following reasons, Defendant’s Motion to Dismiss Indictment on Grounds of Government Misconduct Before the Grand Jury (Doc. 50) is DENIED.

A. Parties’ Arguments

Defendant’s Motion argues that because “the government insufficiently instructed the Grand Jury on the facts and law necessary for it to independently make its probable cause determination — particularly, that the Grand Jury’s deliberations were misled by the government’s material omission of the 2005 Minnesota litigation and judgment, and the attendant possible legal consequences and implications thereof,” the alleged failure “substantially influenced the Grand Jury’s decision to indict, in derogation of [Defendant’s] rights under the Fifth Amendment.” (Doc. 50 at 1). Defendant asserts that the Indictment returned by the Grand Jury should be summarily dismissed because the Government’s alleged “material omission of fact, and legal instruction, before the Grand Jury was obviously made with the intent of precluding