U.S. v. Cordy

• Decision Date: 25 March 2009
• Docket Number: No. 07-3538.,07-3538.
• Citation: 560 F.3d 808
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph CORDY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

560 F.3d 808

UNITED STATES of America, Plaintiff-Appellee, v. Ralph CORDY, Defendant-Appellant.

No. 07-3538.

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2008.

Filed: March 25, 2009.

James Martin Davis, argued, Omaha, NE, for appellant.

Susan T. Lehr, AUSA, argued, Omaha, NE, for appellee.

Before MURPHY, BOWMAN, and BENTON, Circuit Judges.

MURPHY, Circuit Judge.

Ralph Cordy was charged with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), convicted by a jury, and sentenced to 108 months in prison. Cordy appeals his conviction, claiming that he was denied both his Sixth Amendment right to the counsel of his choice and the effective assistance of counsel. Cordy also appeals a sentencing enhancement imposed by the district court.¹ We affirm.

I.

The National Center for Missing and Exploited Children reported the existence of two child pornography websites to Immigration and Customs Enforcement (ICE) in 2004. After the ICE Cyber Crimes Center analyzed the websites' subscriber lists, Ralph Cordy was identified as a potential consumer of child pornography.

In the spring of 2006, agents from ICE and the United States Postal Inspection Service (USPIS), along with a deputy from the Douglas County, Nebraska Sheriff's Office instigated a "knock and talk" at Cordy's home in order to "freshen" some stale information. The agents informed Cordy that they were investigating credit card violations. In response to questions about his email address and suspicious credit card charges, Cordy asked whether the inquiry was leading toward child pornography. Informed that it was, Cordy maintained that he actively searched for child pornography so that he could report it to a watchdog website. Cordy could not name the website, however. He indicated that he occasionally received unsolicited emails with subject lines referencing "Russian Lolitas" or "child pornography" but that he deleted them immediately.

Cordy denied the agents' request to search his residence. While agents from ICE and the USPIS secured the premises, the deputy sheriff obtained a search warrant. After serving Cordy with the warrant at his residence, the agents and deputy seized five computer towers, two laptop computers, and two external hard drives. Subsequently agents performed a forensic analysis of the seized hardware and identified in excess of 6000 images and 100 videos containing child pornography. Cordy was indicted for violating 18 U.S.C. § 2252(a)(4)(B), which prohibits the knowing possession of child pornography. Cordy retained a private attorney, Steven J. Lefler, to prepare his defense.

Cordy pled not guilty on October 18, 2006. That same day the district court issued its case management order and established the following deadlines: October 25, 2006 for discovery, November 7 for pretrial motions, and trial on December 11. On the day pretrial motions were due, Lefler moved to extend the deadline by two weeks, primarily because he had not yet received the search warrant and affidavit through discovery. Lefler's motion was granted, and the pretrial motion deadline was extended until November 22, 2006.

On November 21, 2006, Lefler filed a motion to suppress evidence seized as a result of the search and Cordy's statements made prior to the search. The court held a suppression hearing in December, and the motions were subsequently denied. No objections were filed to the magistrate judge's Report and Recommendation, and it was adopted on March 5, 2007 by the district court which then rescheduled trial for March 27.

Lefler moved to continue the trial for an indeterminate period of time on March 7, 2007 because of a conflicting state court trial which had been previously scheduled. Counsel also informed the court that he planned to take a "sabbatical" on June 1, 2007. The government did not object to counsel's request for a continuance, and the magistrate judge granted the motion and rescheduled trial for April 24, 2007.

The parties filed a joint motion to continue trial on March 16, 2007. The district court conducted a hearing on April 17, 2007 to consider the joint motion. The government indicated that its forensic analysis was being hindered by its dependence on a busy secret service agent and a delay in receiving the necessary specialized software. It would thus be unable to complete its analysis until the first or second week of June. Defense counsel indicated that he would likely require two weeks to respond to and analyze the results of the government's forensic analysis and determine whether or not he needed to secure an expert. He also explained that his schedule presented a number of conflicts because he would be in Italy from May 18 until June 11, on jury duty in Arizona from June 22 through July 23, and in New York from September 1 through November 15, 2007. After considering the time required for forensic analysis, the court expressed concern about defense counsel's scheduling conflicts in this case and others. Lefler indicated that he had stopped taking new cases in November of 2006, and the district court warned that it would not permit further extensions. At the conclusion of the hearing, the court rescheduled trial for July 2, 2007.

Lefler filed an array of pretrial motions on May 18, 2007, some five months after the discovery deadline. He indicated that he had "uncovered new approaches and theories concerning the government's prosecution," as well as a line of helpful cases including Ashcroft v. Free Speech Coal., 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). The motion sought to extend the motion deadline, to obtain independent analysis of the evidence seized from Cordy's residence, to declare 18 U.S.C. § 2252(a)(4)(B) unconstitutional, and to suppress compact discs seized from Cordy's residence depicting sexual contact between adults and children. He also requested the government's designation of its experts and a Daubert hearing.

Counsel's motion for independent analysis of seized physical evidence has particular relevance because of the Adam Walsh Child Protection and Safety Act, 18 U.S.C. § 3509(m) (2006). The Act provides in relevant part:

(1) [A]ny property or material that constitutes child pornography . . . shall remain in the care, custody, and control of either the Government or the court.

(2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure, a court shall deny, in any criminal proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that constitutes child pornography . . . so long as the Government makes the property or material reasonably available to the defendant.

(B) [P]roperty or material shall be deemed to be reasonably available to the defendant if the Government provides ample opportunity for inspection, viewing, and examination at a Government facility. . . .

Thus, under ordinary circumstances the defense would be limited to examining the contraband data in a government facility. In this case the data was stored in Omaha, Nebraska where Cordy was indicted.

Defense counsel and Cordy's expert concluded that the child pornography could have been placed onto his computer without his knowledge by means of a network intrusion or by a previous user. This would negate liability under the charging statute, and Lefler sought a forensic analysis of the seized data. Both the defense and the government indicated at trial that a thorough analysis of the data for this purpose would take approximately 35 days. Under the Adam Walsh Act the defense had access to the data at the government facility in Omaha, but the defense expert was located in Virginia and claimed that Cordy would be "bankrupted" if the analysis had to be done in Omaha. As a result Lefler sought an order compelling the duplication of the contraband, relying on United States v. Knellinger, 471 F.Supp.2d 640, 650 (E.D.Va.2007) (ordering government to provide defense with copy of contraband data for analysis because alternatives were prohibitively expensive).² The government later provided a copy of the data to Cordy's defense for review at a government facility in Virginia as an accommodation.

The court denied most of the defense motions on May 22, 2007, saving the motion in limine for later consideration. In addition to being untimely, the court found the motions for independent analysis of evidence, Daubert certification, and expert designation to be procedurally deficient. With respect to the motion to extend the pretrial motion deadline, the court noted that it had already expired in November. The court further explained:

Although defense counsel represents that he has uncovered "new" theories of defense, nothing in the motions filed with the Court indicates that he could not have uncovered these theories of defense prior to the expiration of the pretrial motion deadline. As defense counsel candidly stated, he has "no good reason for not having discovered" the newly found theories earlier.

On June 18, 2006, the government filed an unopposed motion to continue trial for three weeks due to the unavailability of an essential witness. The magistrate judge granted the government's request and rescheduled trial for July 24, 2007. On July 10, 2007, Lefler moved to withdraw as Cordy's attorney. A hearing on the motion was set for July 16.

At the July 16 hearing Lefler moved to continue the trial for an unspecified period of time because Cordy had fired him. Lefler indicated that Cordy had retained James Martin Davis as new counsel and that Davis would be unavailable on July 24, the scheduled trial date, because he was recovering from an angioplasty and was unable to prepare for trial on such short notice. Although Davis appeared at the hearing, he stated that he had not yet been hired by Cordy. Lefler also reported that Cordy had spent the previous month attempting to find a different attorney, only to...