Opinion
Case No. 2:04-CR-189.
March 31, 2006
OPINION AND ORDER
This matter is before the Court for consideration of the Defendant's Motion to Dismiss the Indictment on the basis that the statute at issue is unconstitutional because it allegedly prevents Defendant from obtaining a fair trial and allegedly renders his counsel ineffective. (Doc. #91). For the reasons that follow, the motion is denied.
I.
The Defendant in this case was found guilty, on November 18, 2005, of one count of an Indictment charging him with knowing possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2) and one count of forfeiture pursuant to 18 U.S.C. § 2353(a)(1) and (a)(3).
Defendant has previously sought dismissal of the Indictment in this case. In his first Motion to Dismiss, filed prior to trial, Defendant argued that 18 U.S.C. § 2252 is unconstitutional as applied to him because the statute allegedly fails to provide Defendant with sufficient notice as to how to determine whether conduct is illegal under the statute. The Court rejected Defendant's motion, finding that § 2252 could not be more clear in its prohibition against the possession of visual depictions of actual minors engaging in sexually explicit conduct. The Court observed that "Defendant's difficulty in discerning a virtual from an actual image of a child does not change the fact that possession of actual child pornography is not constitutionally protected. . . ." ( Opinion and Order, November 4, 2005, Doc. #61 at 5).
More specifically, Defendant argued that the statute is overbroad because he cannot discern whether a visual image obtained from the Internet involves the use of an actual minor or not. Defendant further argued that the statute is vague for the same reason.
In his second Motion to Dismiss, filed in the context of Fed.R.Crim.P. 29, Defendant argued that § 2252 is unconstitutional as applied to him in that the statute violates the Commerce Clause of the United States Constitution, Article I, § 8, cl.3. As this Court previously observed, there are two ways to establish the jurisdictional requirement under § 2252(a)(4)(B). First, the Government can show that the depictions Defendant possessed were "mailed, shipped and transported in interstate commerce or foreign commerce." Second, the Government can show that the depictions were "produced using materials which have been mailed or so shipped or transported, by any means including by computer. . . ." 18 U.S.C. § 2252(a)(4)(B). In this case, the Government presented evidence that the charged images themselves traveled in interstate or foreign commerce. Further, with respect to the two videos, which Defendant was charged with possessing via access to the Internet, the Government presented sufficient evidence to show that the demand for child pornography is such that the market for such videos substantially affects interstate commerce. ( Opinion and Order, November 29, 2005, Doc. #86). Thus, the Court rejected Defendant's constitutional challenge to § 2252.
The Court notes the recent Sixth Circuit opinion on this jurisdictional element, United States v. Chambers, No. 02-5865 (March 23, 2006) (slip op., recommended for publication). There, the Defendant argued that § 2252 was unconstitutional as applied to him because the only evidence presented to satisfy the Commerce Clause element of the statute was that the Polaroid film used to create images of child pornography was produced either in Massachusetts or the Netherlands. The Sixth Circuit rejected Defendant's argument, finding a sufficient nexus for interstate commerce since even "homegrown child pornography can feed the national market and stimulate demand." Id., slip op. at 12, quoting United States v. Gann, 2005 WL 3528917 at *6 (6th Cir. December 21, 2005).
In his present Motion to Dismiss the Indictment in this case, Defendant argues that § 2252 is unconstitutional because it allegedly deprives him of the right to a fair trial and allegedly renders his counsel ineffective. Before considering the merits of this motion, the Court addresses the concerns raised by the United States as to the timeliness of the Defendant's motion.
As the United States points out, the only appropriate vehicle for addressing the motion, at this juncture in the action, is pursuant to Rule 29. The rule provides, in relevant part:
(c) After Jury Verdict or Discharge.
(1) Time for a Motion. A defendant may move for a judgment of acquittal, or renew such a motion, within 7 days after a guilty verdict or after the court discharges the jury, whichever is later, or within any other time the court sets during the 7-day period.
Defense counsel raised the issue which is the subject of the present motion shortly before the jury began deliberating in this case. The Court asked counsel why this matter had not been raised earlier, and counsel represented that he was awaiting a decision from a court in the State of Ohio to support his position. The Court indicated to defense counsel that he could file a written motion, if appropriate, following the conclusion of the case.
Although the verdict was rendered on November 18, 2005, the present motion was not filed until December 29, 2005, well outside the seven day time limit set forth in Rule 29(c)(1). As the United States points out, defense counsel never sought leave of court to extend the 7 day filing deadline under Rule 45. The present motion is indeed untimely. For this reason alone, the Court finds the motion without merit. Even if the motion were timely, the Court finds the substance of the motion itself to be without merit.
The decision from the Court of Common Pleas for Ashtabula County, on which defense counsel relies, was issued on November 16, 2005.
Fed.R.Crim.P. 45(b) states that the "court may not extend the time for taking any action under Rules 29, 33, 34 and 35, except to the extent and under the conditions stated in them." Any motion for extension of time should have been filed within the seven day period set forth in Rule 29.
Defendant argues that § 2252 is unconstitutional because it allegedly deprives him of the right to a fair trial and renders his counsel ineffective. According to the Defendant, the statute criminalizes the sort of conduct which Defendant claims is necessary to defend the charges against him.
Defendant points to seventeen tasks which he claims his counsel was precluded from performing. These are: (1) receiving a complete forensic copy of the evidence in this matter; (2) possessing the alleged contraband items and accessing them during trial: (3) compiling a list of websites visited by the Defendant, visiting the same, and summarizing the contents; (4) downloading samples of images from the visited websites; (5) visiting other child pornography websites to investigate the source of alleged contraband; (6) determining the existence of websites using adults made to appear as minors; (7) searching the Internet for websites using the filenames of the charged items; (8) searching the Internet for images that have been digitally altered to appear as minors; (9) summarizing the types of images and content of newsgroups allegedly visited by Defendant; (10) providing testimony about the typical content and images found on the newsgroups; (11) visiting each of the newsgroups accessed by Defendant and downloading samples therefrom; (12) searching and visiting other newsgroups with digital images of what appear to be minors; (13) searching and visiting other newsgroups with digital images of altered images of adults; (14) copying the charged items in this case; (15) making trial exhibits from other digital images; (16) copying the charged items and distributing them to witnesses for trial; (17) presenting expert witness testimony on digital images at a motion to dismiss hearing, to show that Defendant could not know whether the image possessed was prohibited by § 2252 or protected by the First Amendment. (Motion to Dismiss at 4-5).
The Court notes that it has already considered a somewhat related effectiveness of counsel issue in this case. Prior to the start of trial, the United States Attorney's Office brought to the Court's attention that one of Defendant's counsel was under investigation by the FBI for alleged possession of materials in violation of § 2252. Defendant was made aware of this potential conflict of interest and the possible effect on Defendant's right to effective assistance of counsel. Defendant stated on the record that he waived any rights in this regard and wished to proceed with counsel's representation. (Hearing, October 28, 2005, Tr. at 9-10). Although Defendant's present effectiveness of counsel issue is different because the attack goes to the constitutionality of § 2252 itself, the Court is nevertheless suspect of Defendant's attempt to claim his counsel was precluded from performing effectively.
This Court simply fails to find any merit to the claim that § 2252 somehow deprives the Defendant of the right to a fair trial or the effective assistance of counsel. As the Court stated on several occasions prior to and during trial, § 2252 could not be more clear in its prohibition that possession of visual depictions of actual minors engaged in sexually explicit conduct is prohibited. Defendant's argument that he has difficulty discerning a virtual from an actual image of a child does not change the fact that possession of actual child pornography is not constitutionally protected and is a violation of the statute. As the Court has previously stated, what is relevant to determining whether the Defendant violated the statute are the charged images themselves. Defense counsel's suggestion that his inability to search the Internet for other images, which may or may not be of actual children, and his inability to morph other images, have no bearing on images charged in this case.
Moreover, Defense counsel's suggestion that he was deprived of the opportunity to examine the images charged in this case or to use them during trial is wholly without merit. The Court conferred with counsel on this very issue prior to trial and the United States proposed that the images be made available for Defense counsel's review, subject to a protective order, with the supervision of the FBI. Defendant was never deprived of the right to view the evidence on which charge was based. Defendant was also never deprived of the right to access the evidence for use at trial.
Defense counsel took issue with this procedure. The Court finds the procedure for providing access to defense counsel no different from that used in the handling of contraband in a drug or gun case. In the Court's view, if Defense counsel's arguments were carried to their logical end, any attorney defending a client against a drug charge would have to be permitted to manufacture or distribute drugs in order to properly defend his or her client. In this regard, the Court notes that it is not at all persuaded by the decision in United States v. Quinton Shreck (N.D. Oklahoma Feb. 8, 2006). In the Court's view, the decision effectively allows counsel to possess and create illegal images.
The Court is not persuaded by the decision of the Court of Common Pleas for Ashtabula, Ohio in State of Ohio v. Brady. There, Dean Boland, defense counsel in this case, was serving as an expert witness in the defense of a state prosecution for possession of child pornography. The state court found that the defendant was denied the effective assistance of counsel and his expert witness because Boland ran the risk of federal indictment for possession of the charged items. For this reason, the court dismissed the indictment against the defendant in that case.
In sum, the Defendant's present motion challenging the constitutionality of § 2252 is untimely and lacking in substantive merit.
II.
The Defendant's Motion to Dismiss the Indictment ( Doc. #91) is DENIED.