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HomeMy WebLinkAboutCP-21-CR-0000036-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : JORDAN A. MICHAELS : CP-21-CR-0036-2010 IN RE: MOTION TO COMPEL DISCOVERY AND PETITION FOR PROTECTIVE ORDER OPINION AND ORDER OF COURT Masland, J., October 15, 2010:-- This matter arises from the Commonwealth's prosecution of Jordan Anthony Michaels (Defendant) for various charges related to the possession and dissemination of child pornography. Now before the court is Defendant's motion to compel discovery and petition for protective order asking the court to direct the Commonwealth to provide his forensic expert a duplicate copy of the computer hard drive allegedly containing child pornography. Defendant asks us to permit duplication of the hard drive so that his expert may perform forensic analysis in anticipation of trial. The Commonwealth opposes this motion, relying primarily on a provision of the Adam Walsh Child Protection and Safety Act (Act). I. Background The Act is a federal law that severely limits a defendant's right to obtain access to duplicate copies of material that may constitute child pornography in the context of a federal prosecution. In light of the Act's restrictions, the Commonwealth offers Defendant's expert the opportunity to analyze the hard CP-21-CR-0036-2010 drive at the Cumberland County Forensic Laboratory but refuses to provide a copy of the hard drive. The Commonwealth maintains that to do so would constitute a crime. The Commonwealth argues, based on the Supremacy Clause, that the Act's discovery limitation preempts the relevant Pennsylvania Rules of Criminal Procedure. Upon review, we conclude the Act does not preempt state law and grant Defendant's motion to compel subject to a strict protective order. II. Adam Walsh Child Protection and Safety Act The Act limits discovery in federal child pornography prosecutions as follows: (2)(A) Notwithstanding Rule 16 of the Federal Rules of Criminal Procedure [governing discovery and inspection under 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) 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)(2)(A)-(B) (emphasis added). -2- CP-21-CR-0036-2010 A. Scope of Discovery Limitation Federal courts have consistently upheld the constitutionality of this provision by interpreting “reasonably available” and “ample opportunity” to be consistent with federal due process rights. See, e.g. United States v. Spivack, 528 F.Supp.2d 103, 106 (E.D.N.Y. 2007). Nonetheless, these courts have held an absolute prohibition on duplicating child pornography in the context of discovery would be inappropriate. Instead, “the government must either give the defense team due-process-level access to the hard drive at a government facility or, if such access cannot be given, the government must give the defense team a copy of the hard drive, satisfying any due process concerns.” Id. (emphasis added). Thus, under some circumstances, a federal court may direct prosecutors to provide duplicate computer hard drives to a defendant for expert analysis. United States v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007) presented such a case. There, the district court conducted a preliminary hearing to determine whether the government had provided the defendant's experts an ample opportunity to inspect the computers allegedly containing child pornography. The district court concluded the government did not do so. In reaching this determination it noted the difficulties presented by requiring defense experts to conduct forensic computer analysis at a government facility. The court reasoned: [E]ven if [the expert] were able to move his equipment -3- CP-21-CR-0036-2010 to a Government facility, he would have concerns about its reliability after the move. And, even if he thought his equipment was functioning properly, his personal ability to analyze the evidence thoroughly and carefully would be compromised to such a degree that he wouldn't be able to service the client or the attorney effectively. The practical consequence of all these difficulties is that, while [the expert's] testimony indicates that it would be conceptually possible for [him] to conduct his time-consuming analysis in a Government facility, [the expert] would not agree to work on a case like [the defendant's] because he could not feasibly move his equipment to, or properly do his work in, a Government facility. Id. at 647 (citations and internal quotation marks omitted) (emphasis added). Accordingly, the district court concluded the government failed to provide the defendant ample opportunity to inspect the evidence against him and ordered the government to provide the defendant's counsel with a mirror image copy of the defendant's hard drive, subject to an appropriate protective order. Id. at 650. It must be noted that Knellinger appears to be the exception to the general rule that providing access at a government facility satisfies the Act's ample opportunity requirement. Compare United States v. Flinn, 521 F.Supp.2d 1097 (E.D. Cal. 2007). Nonetheless, it illustrates that even in the context of a federal prosecution the Act's discovery limitation is not absolute. Thus, were we to conclude the Act preempts state law, we could still find that the Commonwealth's offer of access does not provide Defendant's expert an ample opportunity to analyze the evidence thereby justifying duplication of the hard drive. -4- CP-21-CR-0036-2010 B. Preemption The Commonwealth argues the Act preempts the Pennsylvania Rules of Criminal Procedure that would otherwise permit the court to grant Defendant's motion to compel. We disagree. We start with first principles. In our federal system, the states enjoy concurrent sovereignty with the national government limited only by the Supremacy Clause of the United States Constitution. U.S. Const. art. VI, cl. 2; Tafflin v. Leavitt, 493 U.S. 455 (1990); Commonwealth v. Morris, 575 A.2d 582, 583 (Pa. Super. 1990). From the Supremacy Clause, our courts derive the principle of preemption recognizing that a state's power, “concurrent though it be, is yet subordinate to the legislation of Congress ….” Gibbons v. Ogden, 22 U.S. 1, 24 (1824) (emphasis in the original). Thus, preemption serves to invalidate state laws that are contrary to federal laws. “[O]ur sole task in determining whether a federal statute preempts a state law or action is to ascertain Congressional intent.” Morris, 575 A.2d at 584. We undertake this analysis with the presumption that Congress did not intend to preempt the Commonwealth's enforcement of its criminal law. Id. Congress may preempt state law in three ways: by express statement, by comprehensively occupying a field thereby displacing state regulation, or by conflict such that compliance with both state and federal law is physically impossible. Id.; see Pacific Gas & Electric Co. v. State Energy Resources Commission, 461 U.S. 190 (1983). -5- CP-21-CR-0036-2010 Here, the relevant section of the Act does not include a statement of preemption, nor does it completely occupy the field of criminal procedure. Even in the federal context, where it undoubtedly applies, the relevant portion of the Act only modifies one procedural rule in the limited circumstances of federal child pornography prosecutions. Restated, the Act's discovery limitation serves only to modify a Federal Rule of Criminal Procedure. As such, it has no application to a state prosecution. This interpretation also resolves the issue of conflict preemption. Because the Act's discovery limitation does not apply to a state criminal prosecution, complying with a state court order requiring the duplication of a hard drive containing child pornography would not violate the Act. Our conclusion accords with the majority of other state courts that have addressed this issue. See Washington v. Norris, 236 P.3d 225 (Wash. App. Div. 2010) (finding no congressional intent to preempt state law); Missouri ex rel. Tuller v. Crawford, 211 S.W.3d 676 (Mo. App. 2007) (concluding Act's discovery limitation to be procedural provision applicable to criminal prosecutions in federal court not state courts). Accord Massachusetts v. Ruddock, 26 Mass.L.Rptr 175, 2009 WL 3400927 (Mass. Super. 2009) (unreported opinion) (holding the Act does not prevent disclosure where applicable state procedural rule requires disclosure); Tennessee v. Allen, 2009 WL 348555 (Tenn. Crim. App.) (unpublished opinion) (“It can readily be seen that section 3509(m) does not explicitly refer to state prosecutions.”). But see Ohio v. Brady, 894 N.E.2d. 671 (Ohio 2008) (interpreting the Act to be consistent with preexisting Ohio -6- CP-21-CR-0036-2010 procedural rules governing discovery). Ultimately, criminal procedural rules constitute a traditional state law concern. See Morris, 575 A.2d at 584 (“Under our federalism, the states have the principal responsibility for defining and prosecuting crimes.”). For this reason, we assume “that the historic police powers of the States were not to be superceded by [a] Federal Act unless that was the clear and manifest purpose of Congress.” Id., quoting California v. ARC America Corp., 490 U.S. 93 (1989). A plain reading of the Act's discovery limitation does not indicate such an intention. Accordingly, the Act does not preempt state law and we will address Defendant's motion to compel pursuant to the Pennsylvania Rules of Criminal Procedure. III. Pennsylvania Law Applying Pennsylvania law, Defendant's discovery request is governed by Pennsylvania Rule of Criminal Procedure 573, which states, in relevant part: (B) Disclosure by the Commonwealth. (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items. Pa.R.Crim.P. 573(B)(1) (emphasis added). The computer hard drive allegedly containing child pornography is obviously material to the instant case. Further, Defendant's forensic expert resides in Massachusetts and has affirmed that -7- CP-21-CR-0036-2010 performing his analysis in Cumberland County rather than at his own forensic laboratory would significantly handicap his ability to provide adequate expert assistance. The Expert's sworn affidavit illustrates that it is for more than mere convenience that he requests a copy of the hard drive. That said, the Expert's affidavit does identify issues that relate to convenience and expense. Though these may be legitimate concerns, we decline to rely on them. Instead, we rely on paragraph 12 of the Expert's affidavit where he states: An ample opportunity to perform an analysis requires the opportunity to explore the evidence without interference or observation by the government. In order to perform the required work, the process must be performed in a manner that is independent from observation or intrusion by government officials. Workman Aff. at ¶12. We agree with this statement and therefore will grant Defendant's motion to compel. The Commonwealth does not oppose Defendant's request on the grounds that the information on the hard drive is not material, but because the Act renders complying with the request a crime. It bears noting that under Pennsylvania law, complying with Defendant's request in conjunction with an appropriate court order is not a criminal offense. Possession of child pornography constitutes the crime of sexual abuse of children. 18 Pa.C.S. §6312. However, the law has a clear exception: This section does not apply to any material that is viewed, possessed, controlled, brought or caused to -8- CP-21-CR-0036-2010 be brought into this Commonwealth, or presented for a bona fide educational, scientific, governmental or judicial purpose. 18 Pa.C.S. §6312(f) (emphasis added). A duly retained computer forensic expert's possession of child pornography, in compliance with a protective order, and in furtherance of a defendant's right to a fair trial, surely amounts to 1 possession for a bona fide judicial purpose. We are not deaf to what appears to be the Commonwealth’s concern here, that any further dissemination of alleged child pornography constitutes an act of victimization. But, such victimization will unavoidably take place in a trial of this nature. To afford the Defendant an opportunity to present a full and fair defense necessarily entails an opportunity to perform a full and fair forensic analysis of the evidence, limited by the provisions we have fashioned in our protective order. IV. Conclusion Finally, we acknowledge this is an unsettled area of law and that the Commonwealth may disagree with our decision. In light of the serious constitutional issues decided here and the Commonwealth's position that 1 However, we also acknowledge a disturbing case from Ohio. See Ohio v. Brady, 2007 WL 1113969, ¶¶4-14 (Ohio App. 11 Dist.), rev'd 894 N.E.2d. 671 (Ohio 2008). There, an indigent defendant faced a state court prosecution related to child pornography. The trial court appointed an attorney/computer forensic expert to assist the defense and, under a protective order, gave the expert permission to possess duplicates of computer hard drives allegedly containing child pornography. Subsequently, the Federal Bureau of Investigation searched the expert's home and office, seized the materials he possessed under the state court's protective order and threatened the expert with federal prosecution. We can do little more than express our strong disapproval of the FBI's actions. We remind all involved in the instant matter that we have no authority to direct federal law enforcement to take or refrain from taking any action. -9- CP-21-CR-0036-2010 complying with Defendant's request constitutes a crime, we will stay execution of our order for 30 days to permit the Commonwealth to determine whether to seek an interlocutory appeal by permission. See Pa. R.A.P. 1311. If such a request is not made within 30 days, the Commonwealth shall comply with the foregoing order granting Defendant's motion to compel, subject to the protective order provided as an appendix to this opinion. ORDER OF COURT AND NOW, this__ day of October, 2010, the Motion to Compel Discovery and Petition for Protective Order filed by Defendant, Jordan A. ARE GRANTED Michaels in accordance with the attached Protective Order. By the Court, Albert H. Masland, J. Christylee Peck, Esquire For the Commonwealth Timothy M. Barrouk, Esquire For Defendant :saa -10- CP-21-CR-0036-2010 Appendix – Protective Order 1. The Commonwealth shall provide Defendant's forensic expert, Thomas E. Workman, Jr., a duplicate copy of the computer hard drive seized from Defendant allegedly containing child pornography, necessarily including any and all actual or alleged child pornography or contraband contained thereon. The details of the delivery from the Commonwealth to Mr. Workman shall be arranged by counsel. Mr. Workman shall maintain the duplicate hard drive as follows: a. The duplicate hard drive shall be maintained by Mr. Workman in accordance with this Order, and shall be used by him solely and exclusively in connection with this case. b. The duplicate hard drive shall be maintained by Mr. Workman in a locked file or cabinet at all times, except while being actively utilized for forensic analysis as provided for in this Order. c. A copy of this Order shall be kept with the duplicate hard drive at all times. d. The duplicate hard drive shall be accessed and viewed only by Mr. Workman or anyone working with him on this case, including defense counsel. e. The duplicate hard drive and all material contained therein (in particular, any graphic image containing actual or alleged child pornography) shall not be copied, reproduced, distributed, disseminated, electronically stored, uploaded, or downloaded or -11- CP-21-CR-0036-2010 used for any purpose other than the defense of this action. f. Defendant himself shall not be permitted to access or view any graphic image file containing actual or alleged child pornography on the duplicate hard drive, without petition and prior order of this Court. g. The computer into which the duplicate hard drive is connected for access and operation shall be a dedicated, non-networked computer and the computer and duplicate hard drive shall be locked and secured when not in use. h. The computer to which the duplicate hard drive is connected may be connected to a printer only under the following conditions: that any printer utilized is a local printer, that the printer may be connected only when and as necessary to print non-graphic image files, and that Mr. Workman shall be personally present at all times a printer is connected. i. Defense counsel and Mr. Workman shall execute the acknowledgement and acceptance of the terms of this order as set forth below. 2. Within 30 days of termination of this matter Mr. Workman shall return (or cause the return of) the duplicate hard drive to an appropriate representative of the Commonwealth. Mr. Workman shall ensure that the materials contained on the duplicate hard drive are completely and irretrievably deleted from the -12- CP-21-CR-0036-2010 computer on which the materials were viewed. Upon the return of the duplicate hard drive, Mr. Workman shall file a brief report to the Court specifying that the terms of this Order have been complied with, reporting the return of the duplicate hard drive, and certifying the deletion of the material from the computer on which they were viewed. The undersigned hereby acknowledges that they will comply with the terms of the protective order. Timothy M. Barrouk, Esquire Thomas E. Workman, Jr. (Date) (Date) -13- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : JORDAN A. MICHAELS : CP-21-CR-0036-2010 IN RE: MOTION TO COMPEL DISCOVERY AND PETITION FOR PROTECTIVE ORDER ORDER OF COURT AND NOW, this__ day of October, 2010, the Motion to Compel Discovery and Petition for Protective Order filed by Defendant, Jordan A. ARE GRANTED Michaels in accordance with the attached Protective Order. By the Court, Albert H. Masland, J. Christylee Peck, Esquire For the Commonwealth Timothy M. Barrouk, Esquire For Defendant :saa