Opinion
Case No. 3:05-cr-148.
July 21, 2006
DECISION AND ORDER
On May 2, 2006, this case was referred to the Magistrate Judge "on the specific issue of the requests filed by defense counsel in the Notice Regarding Discovery" (Doc. No. 20). In that Notice, filed under seal with Court permission, Defendant's counsel list sixteen investigative tasks which they wish to perform in preparing to try this case, and note that the list is non-exhaustive. Id. at 7. They request an order from this Court that does all of the following:
The Order of Reference mentions 28 U.S.C. § 636(b)(1)(A), (B), and (C) and § 636(b)(3). Because the Notice Regarding Discovery is a non-dispositive pre-trial matter, a magistrate judge may rule on it. See also Fed.R.Crim.P. 59. Either party may object within ten days, but this Order is effective unless stayed pending decision on any such objections. S.D. Ohio Civ. R. 72.3.
1. Finds that "this non-exhaustive list of tasks are [sic] necessary for a constitutionally sufficient defense of Mr. Baxter";
2. Finds "[t]hat Mr. Baxter's counsel and experts are entitled to complete these tasks with zero risk of an investigation, search, arrest and/or indictment for performing these necessary tasks"; and
3. "It is the government's responsibility to construct, if possible, a mechanism by which these constitutionally necessary tasks can be performed such that defense counsel and its experts' risk of investigation, search, arrest and/or indictment is in fact zero." Id.
Defendant placed his principal reliance on the Order of United States Magistrate Judge Frank H. McCarthy in United States v. Shreck, Case No. 03-CR-43-EA (February 8, 2006; copy attached to Doc. No. 20). After the Order in question, Magistrate Judge McCarthy recommended that the Indictment in the Shreck case be dismissed on bases similar to those asserted by Defendant here. That recommendation was rejected by District Judge Claire Eagen in an opinion filed May 23, 2006. In the course of doing so, Judge Eagen approved, with one amendment, a plan offered by the United States to enable the defendant to conduct the investigation he claimed was necessary with the exception that it was not necessary "to create additional images, virtual or real, depicting minors involved in sexually explicit activity."
Defendant also cites a number of unreported Ohio decisions in support (Doc. No. 20 at n. 2), but has not attached copies.
Magistrate Judge McCarthy's Order is a matter of public record, even though the copy filed with this Court was attached to a document filed under seal; the Court furnished a copy to Assistant United States Attorney Sheila Lafferty on June 29, 2006.
Defense counsel Boland is also counsel of record for the defendant in the Shreck case.
Upon review of Judge Eagen's Order, it appeared to the undersigned that the plan approved by him, perhaps with some modification, adequately accommodated Defendant's desire to investigate and prepare for trial, thoroughly and without revealing trial strategy, and the interests of the United States in enforcing the child pornography laws. The parties were therefore ordered to file any objections they had to this Court's adoption of Judge Eagen's procedure. The Government does not object, but Defendant does (Objections, Doc. No. 26).
Procedural History
Defendant stands indicted on one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1) and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) (Indictment, Doc. No. 2). The case is pending before Judge Rose on Defendant's two Motions to Dismiss. The first of these asserts that the statute on which the Indictment is grounded is unconstitutional on its face and as applied and that the Indictment is defective under the Notice Clause because of its failure to identify the alleged obscene material and because it is drawn in the disjunctive (Doc. No. 15). The second contends 18 U.S.C. § 2252 "is unconstitutional on its face, prevents Mr. Baxter from obtaining a fair trial and reduces defense counsel to ineffective[ness]." (Doc. No. 16).On March 2, 2006, Defendant filed the referred matter, a Notice Regarding Discovery, in which his counsel assert that they cannot render effective assistance of counsel, either at trial or on the motions sub judice, unless they are permitted to conduct certain investigative tasks (Doc. No. 20). Judge Rose permitted the Notice to be filed under seal (Notation Order granting Doc. No. 19) and on March 29, 2006, conducted, at Defendant's request, an ex parte hearing, on the Notice. After the matter was referred, the Magistrate Judge noted that no attorney-client communications or work product was revealed during the March 29, 2006, hearing and ordered Defendant to "file with the Court not later than June 15, 2006, any authority Defendant wishes the Court to consider supporting the propriety of having this matter decided on a sealed record and ex parte" (Order for Supplemental Briefing, Doc. No. 23, at 1-2). No supplemental brief has been filed.
Analysis
Defendant's counsel first assert that all of the investigative tasks they desire to perform would be violations of the same statutes their client is charged with violating, 18 U.S.C. § 2252. They note that the statute has no exception for receipt or possession of these materials for use in judicial proceedings and that one of them, Mr. Boland, has already been subjected to search pursuant to warrant for such materials in connection with his defense of Mr. Shreck in the Oklahoma case, showing that the Government intends to enforce the statute vigorously, even with respect to defense counsel. They also acknowledge that the Court has no authority to create or impute an exception to the statute (Notice Regarding Discovery, Doc. No. 20, at 8-9). Because the United States has not seen the list of proposed investigative tasks, its counsel has not been in a position to agree or disagree that performing these tasks would violate the law. The Court therefore assumes arguendo that they would and that the United States is not prepared to recognize an exception for defense counsel here, any more than in Oklahoma.Secondly, counsel argue that all of the investigative tasks they seek to perform are necessary for a constitutionally sufficient defense. However, they provide no argument about why these tasks are constitutionally necessary beyond the general proposition about the fundamental right to present a defense. They rely instead on authority: Magistrate Judge McCarthy's decision in Shreck and four unreported decisions of Ohio Common Pleas Courts which they have not furnished to the Court (Notice Regarding Discovery, Doc. No. 20, at 3, n. 5). However, the appeal to authority is unavailing: Judge McCarthy's decision has been overruled by Judge Eagen and this Court is unable to assess the persuasiveness of the Common Pleas cases with which it has not been furnished. As a pure matter of authority, Defendant's arguments for the constitutional necessity of similar investigative tasks has been rejected by Judge Sargus of this Court. United States v. Halter, 2:04-cr-189 (Opinion and Order, March 31, 2005).
Notice Regarding Discovery, Doc. No. 20, at 4, n. 14, citing Chambers v. Mississippi, 410 U.S. 284 (1973).
In his Objections to this Court's proposed adoption of the mechanism for investigation endorsed by Judge Eagen, Defendant argues "[t]he mechanism this court suggests bypasses an important ruling in this matter. That ruling is a pre-cursor to Mr. Baxter's response to any proposed mechanism. Are the tasks that were placed on the record before Judge Rose necessary for a constitutionally sufficient defense of Mr. Baxter or not?" (Objections, Doc. No. 26, at 2). Again the Objections contain no argument for the constitutional necessity of these investigative tasks.
With due respect to counsel's position, the Court does not agree that it must decide the constitutional question presented before considering a mechanism for the investigative tasks. Federal courts are counseled to avoid deciding constitutional questions unless necessary. Slack v. McDaniel, 529 U.S. 473, 485 (2000), citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). As Judge Eagen points out in Shreck, the usual point in time for evaluating the constitutional effectiveness of counsel is after trial, applying the standard of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a criminal defendant has suffered unconstitutional ineffective assistance of counsel only if counsel's performance was deficient and that deficiency prejudiced the case. Counsel offer no authority for the proposition that the tasks they propose to perform would be done by any competent counsel defending a case such as this. Compare Wiggins v. Smith, 510 U.S. 539 (2003); Rompilla v. Beard, 545 U.S. 374 (2005). Obviously, the potential prejudice from failure to perform them cannot be assessed in advance of trial; Defendant could well be acquitted without any of the evidence these tasks would unearth. The Court accordingly declines to decide at this stage of the proceedings whether these investigative tasks are constitutionally necessary. If the investigative tasks counsel believes are necessary to an adequate defense can be conducted without deciding in advance whether they are constitutionally necessary or not, Defendant has no basis to demand a decision in advance whether or not they are constitutionally necessary.
The mechanism endorsed by Judge Eagen and which this Court proposed to counsel for adoption in this case is as follows:
1. A defense expert would be permitted to visit web sites chosen by the defense in the presence of a federal law enforcement agent and defense counsel.
2. An Assistant United States attorney would be assigned to address any issues arising in the course of the work process described in ¶ 1.
3. The tasks completed by the defense expert would be done on a government-owned and provided computer at a location of the Government's choice and within a government-determined time period, with the Government's time and location choices subject to Court review for reasonableness.
4. The defense expert would be permitted only to visit those web sites allegedly visited by Defendant prior to his arrest.
5. All screen images downloaded and captured by the defense expert would be immediately placed under seal and filed with the Court; they could not be removed from the location referred to in ¶ 3 except for filing with the Court.
6. Neither the expert nor defense counsel may create or manipulate images to make images of minors engaging in sexually explicit conduct.
7. The United States Attorney for the Southern District of Ohio agrees not to prosecute any activity by the expert or defense counsel taken in accordance with this plan.
8. The federal law enforcement agent and Assistant United States Attorney assigned to monitor this work process would be prohibited from any communication, directly or indirectly, with any law enforcement agent or attorney involved in any way with the prosecution of this matter.
( United States v. Shreck, Opinion and Order of May 23, 2006.)
Defendant objects that this mechanism does not permit counsel to complete the investigative tasks counsel believe are necessary and outlined in the Notice Regarding Discovery and ex parte hearing before Judge Rose on March 29, 2006. Without determining a priori whether those tasks are constitutionally necessary, the Magistrate Judge concludes that, although they go beyond what was allowed in Shreck, they are reasonably calculated to lead to potentially admissible evidence. That is, given the Court's general knowledge about the Internet and digital imaging, the tasks which defense counsel propose to have completed could reasonably bear on Defendant's guilt or innocence on one or more elements of the offenses with which he is charged. Given that conclusion, neither the Court nor the Assistant United States Attorney should second-guess defense counsel's strategic choices. Further, using the mechanism adopted in Shreck, those tasks can be carried out in a way which protects the public interest in preventing the creation or dissemination of any child pornography and the confidentiality of defense counsel's trial preparation and strategy. The Court accordingly adopts ¶¶'s 1, 2, 3, 5, 6, 7, and 8 of the Government proposal in Shreck. This procedure is referred to hereinafter as the "Investigative Mechanism."
All of the investigative tasks listed in the Notice Regarding Discovery may be completed within the Investigative Mechanism.
To the extent the Notice Regarding Discovery seeks a ruling at this stage of the case that any of the items downloaded from the Internet or created within the Investigative Mechanism can be admitted in evidence at trial, such ruling is withheld. All such items will be filed with the Court and arguments as to their admissibility made to Judge Rose at or before the time of trial. All the investigative tasks shall be completed not later than September 30, 2006.