U.S. v. O'Rourke

• Citation: 470 F.Supp.2d 1049
• Decision Date: 17 January 2007
• Docket Number: No. CR 05-1126-PHX-DGC.,CR 05-1126-PHX-DGC.
• Parties: UNITED STATES of America, Plaintiff, v. Kevin D. O'ROURKE, Defendant.
• Court: U.S. District Court — District of Arizona

470 F.Supp.2d 1049

UNITED STATES of America, Plaintiff, v. Kevin D. O'ROURKE, Defendant.

No. CR 05-1126-PHX-DGC.

United States District Court, D. Arizona.

January 17, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sharon K Sexton, U.S. Attorney's Office, Phoenix, AZ, for Plaintiff.

Ian N. Friedman, Ian N. Friedman & Associates LLC, Cleveland, OH, Bruce E. Blumberg, Blumberg & Associates, Phoenix, AZ, for Defendant.

ORDER

CAMPBELL, District Judge

Defendant Kevin O'Rourke is charged with possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256, receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2) and 2256, and transportation of child pornography in violation of 18 U.S.C. §§ 2252A(a)(1), (b)(1), and 2256. Dkt. # 80. The Government also charged Defendant with distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(3), but has since withdrawn that charge. Dkt. ## 1, 80.

Defendant has filed three motions to dismiss, one motion to strike, and seven discovery motions. The Court held an evidentiary hearing on November 14, 2006, and has reviewed memoranda and other materials filed by the parties before and after the hearing. Dkt. ## 41-49, 50, 62, 63, 66-68, 70-74, 76, 85, 88, 90-92. For the reasons stated below, the Court will deny Defendant's motions.

I. Background.

Defendant O'Rourke came to the attention of the FBI on January 3, 2005, when Special Agent Robin Andrews conducted an undercover investigation of people involved in the possession and distribution of child pornography. Dkt. # 66 at 1. Conducting a search through the peer-to-peer Internet file sharing software known as "Limewire," Agent Andrews downloaded images of child pornography from Defendant's computer. Id. The FBI was able to identify Defendant through his Internet Protocol address and a subpoena of his Internet Service Provider, and subsequently obtained a search warrant for Defendant's home and computer. Id. at 2. The search warrant was executed on February 22, 2005, and Defendant's computer was found to contain 46 movie files and several hundred still images of child pornography. Id. at 3; Dkt. # 16 at 3. The Government alleges that these movies and images were saved on Defendant's hard drive and were available to be downloaded over the Internet by others using Limewire software. Dkt. # 66 at 2-3.

The Government seized Defendant's computer and presented evidence to a federal grand jury. The grand jury indicted Defendant on October 26, 2005, and later issued a superseding indictment. Dkt. ## 1, 80. On January 12, 2006, the Court denied Defendant's request for pre-trial release from custody. Dkt. # 23.

Defendant now seeks to obtain from the Government a copy of his computer hard drive containing the alleged child pornography. Defendant asserts that experts and attorneys reviewing the hard drive might be able to construct viable defenses to the charges that he knowingly obtained and distributed child pornography. Analysis of images on the hard drive might also raise questions about whether the images are of actual children, a requirement for successful prosecution under child pornography statutes after Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

Although a criminal defendant normally may obtain from the Government evidence seized from the defendant or to be used at trial against him, Fed.R.Crim.P. 16(a)(1)(E), Congress recently established different rules for child pornography cases. On July 27, 2006, President Bush signed into law H.R. 4472, known as the Adam Walsh Child Protection and Safety Act of 2006 (the "Walsh Act"). The Walsh Act prohibits the Government from releasing child pornography to defendants charged with child pornography offenses so long as the Government makes the evidence reasonably available for inspection and examination by the defendant's lawyers and experts at a Government facility. 18 U.S.C. § 3509(m).

In light of this new statute, the Government has declined to provide Defendant O'Rourke with a copy of the computer hard drive seized from his home. The Government instead has made copies of the hard drive available for inspection and examination at a Government facility.

Defendant's motions raise a number of issues. He argues that, under a correct interpretation of the Walsh Act, his attorneys are entitled to possession and control of the hard drive. If the Court disagrees and holds that access may be limited to Government facilities, Defendant contends that the statute violates his Fifth Amendment right to due process of law. Relying on the Supreme Court's decision in Ashcroft, Defendant also argues that the criminal statutes under which he is charged are unconstitutionally vague and overbroad.

The Court will first address Defendant's statutory and constitutional arguments concerning the Walsh Act, as well as his motions to compel production of the hard drive. The Court then will address Defendant's overbreadth and vagueness challenges.

II. Defendant's Statutory and Constitutional Arguments.

The relevant portions of the Walsh Act read as follows:

(1) In any criminal proceeding, any property or material that constitutes child pornography (as defined by section 2256 of this title) 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 (as defined by section 2256 of this title), so long as the Government makes the property or material reasonably available to the defendant.

(B) For the purposes of subparagraph (A), property 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 of the property or material by the defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial.

18 U.S.C. § 3509(m).

A. Officer of the Court.

Defendant argues that his lawyer is an "officer of the court" and therefore may possess and control any child pornography that the statute restricts to "the court." See 18 U.S.C. § 3509(m)(1); Dkt. # 70 at 3-4. The statute specifically provides, however, that the child pornography shall remain in the possession and control of "the Government or the court" so long as the defendant and "his or her attorney" and experts are given ample opportunity to inspect and examine it at a Government facility. 18 U.S.C. § 3509(m)(1), (2)(B). The statute thus distinguishes between a "court" and an "attorney." The statute also clearly provides that defense attorneys are to be given access at Government facilities. Defendant's reading — that defense attorneys as officers of the court are to be given independent possession and control of the material — is contrary to the statute's plain language. Defendant has provided no support for his reading of the statute and in fact retreated from this argument at the November 14 hearing.

B. Federal Rule of Criminal Procedure 16.

Defendant argues that the statute contradicts Federal Rule of Criminal Procedure 16, implying that such a contradiction somehow renders the statute invalid. Dkt. # 70 at 5. But Congress has power to override the Federal Rules of Criminal Procedure. See, e.g., United. States v. Mitchell, 397 F.Supp. 166, 170 (D.D.C. 1974), aff'd, 559 F.2d 31 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Congress' intent to do so in the Walsh Act is clear. The statute's restriction on a defense team's right to obtain possession of child pornography is imposed "[n]otwithstanding Rule 16 of the Federal Rules of Criminal Procedure." 18 U.S.C. § 3509(m)(2)(A). Given this clear statutory override of Rule 16, Defendant gains no ground by arguing that the hard drive in this case should be produced under the rule.¹

C. Due Process.

Defendant's primary challenge to the statute is based on the Due Process Clause of the Fifth Amendment.² Defendant argues that denying his attorneys and experts possession of the hard drive is fundamentally unfair and severely prejudices his ability to obtain a fair trial. Defendant appears to argue that § 3509(m) violates due process both facially and as applied to him. See Dkt. # 70 at 6-12. Other courts have held that the statute does not violate due process. See United States v. Johnson, 456 F.Supp.2d 1016, 1019-20 (N.D.Iowa 2006); United States v. Butts, No. CR-05-1127, 2006 WL 3613364, at *2 (D.Ariz. Dec. 6, 2006).

The requirements of due process can be stated in general terms. "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). "Restrictions on a criminal defendant's rights to confront adverse witnesses and to present evidence may not be arbitrary or disproportionate to the purposes they are designed to serve." Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (internal quotations omitted). In some cases, this includes the right to present evidence through expert witnesses. See, e.g., Ake. v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). "Due process guarantees that a criminal defendant will be treated with that fundamental fairness essential to the very concept of justice." United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (internal quotations omitted).

The Court concludes that the statute, properly construed, comports with due process. The statute's denial of a defense team's possession of alleged child pornography is not...