U.S. v. WRIGHT

ded to the defense's theory that law enforcement was "out to get him" by telling the jury that Wright was not Pablo Escobar or "the Larry Flynt of child pornography." Not one of these statements was improper. "Prosecutors have considerable leeway to strike `hard blows' based on the evidence and all reasonable inferences from the evidence." United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000) (holding prosecutor's statements that the defendant "had an excuse for everything" and "was trying to skirt the law — just like he tries to skirt everything else" were not improper) (internal quotation marks omitted); United States v. Rude, 88 F.3d 1538, 1547-48 (9th Cir. 1996) (not improper for prosecutor to refer to the defendants as "crooks," or `evil" at least eleven times, or to use other derogatory remarks such as "con man," or "trolling around for victims" over 901 times).

Having established that at least some of the prosecutor's statements in this case were improper, Wright must also establish prejudice. The question is "whether it is more probable than not that the prosecutor's conduct materially affected the fairness of the trial." Hermanek, 289 F .3d at 1102

Wright has not established prejudice. The improper statements were relatively isolated incidents over the course of a ten day trial. The "trifecta" comment was by far the most egregious statement made by the prosecutor, though it too was mitigated by defense counsel's excellent rebuttal, which focused extensively on the three defenses to which the prosecutor's "trifecta" comment referred. While Wright's credibility was certainly a key issue at trial, there is no indication that the jury discredited his testimony. Rather, the jury acquitted Wright of Counts 1 and 4-10, "reinforc[ing the] conclusion that the prosecutor's remarks did not undermine the jury's ability to view the evidence independently and fairly." United States v. Young, 470 U.S. 1, 18 n. 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (finding no plain error despite prosecutor's improper vouching based in part on the fact that the jury acquitted the defendant of the most serious charge he faced); United States v. de Cruz, 82 F.3d 856, 863-64 (9th Cir. 1996) (finding allegedly improper prosecutorial comments to be harmless where the jury acquitted defendant of one of the charges, indicating its ability to weigh the evidence without prejudice).

Other than the "trifecta" comment, the prosecutor's misconduct was fairly mild and was mitigated by the court's general jury instructions, given at the beginning of trial, as well as at the end of the prosecutor's closing argument and during the final jury instructions that "[a]rguments and statements by lawyers are not evidence." See United States v. Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993) (general instruction sufficient to cure mild vouching). Accordingly, the prosecutor's improper statements amounted to harmless error.

C. Access to Mirrored Hard Drive

On July 27, 2006, the Adam Walsh Child Protection and Safety Act, Pub.L. 109-248, 120 Stat. 587 (the Adam Walsh Act), was signed into law. Codified at 18 U.S.C. § 3509(m), the Adam Walsh Act altered the balance of pre-trial criminal discovery under Rule 16 of the Federal Rules of Criminal Procedure. Under Rule 16, the government must turn over to the defense material evidence obtained from the defendant that the government intends to use in its case-in-chief. Before the Act, courts had held that such material includes "mirror image" copies of computer evidence in child pornography cases. See United States v. Hill, 322 F.Supp.2d 1081, 1091 (C.D.Cal. 2004) (Kozinski, J., sitting by designation). However, now under the Adam Walsh Act, "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." 18 U.S.C. § 3509(m)(2)(A) (emphasis added). The Act goes on to define "reasonably available" as providing the defendant "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." Id. § 3509(m)(2)(B).

Wright raises three arguments with respect to his access to a mirror-image copy of his computer hard drive in this case. First, he argues that the hard drive was not made "reasonably available" to him, thus violating a number of constitutional rights; second, he claims that the district court erred in denying Wright a mid-trial continuance that would have allowed him an additional day to subject the hard drive to forensic testing; and third, he contends that the Federal Public Defender (FPD) and its expert are employees of "the court" under the meaning of the Act, and the FPD office is a "government facility" under the Act.

Wright includes general allegations that he was denied due process, effective assistance of counsel, confrontation, and compulsory process. Wright does not bring a facial challenge to the Act's constitutionality.

As Wright claims the violation of a number of constitutional rights based on the evidence not being made "reasonably available" to him, our review of that issue is de novo. See United States v. Larson, 495 F.3d 1094, 1100-01 (9th Cir. 2007) (de novo review of Confrontation Clause claims based on exclusion of an area of inquiry); United States v. Bahamonde, 445 F.3d 1225, 1228 n. 2 (9th Cir. 2006) (de novo review of denial of due process and compulsory process claims). We review the district court's denial of a continuance for abuse of discretion. United States v. Rivera-Guerrero, 426 F.3d 1130, 1138 (9th Cir. 2005). We review de novo questions of the Adam Walsh Act's construction. United States v. Kaczynski, 551 F.3d 1120, 1123 (9th Cir. 2009).

1. Was the evidence made "reasonably available" to Wright?

On November 14, 2006, the parties entered into a stipulation and protective order outlining Wright's access to a "bit-by-bit image copy" of Wright's hard drive. The stipulation provided for the evidence to "remain in the care, custody and control of the United States Attorney's Office." Defense counsel and the defense expert, Rick Lavaty, were permitted to access the evidence; the stipulation provided that they would be "buzzed in during regular office hours" to the U.S. Attorney's Office and that when it was not being analyzed, the hard drive was to remain in a secure location. The U.S. Attorney's Office established a "secure space" for the defense expert to set up his own equipment and conduct the examination. If it was necessary, the expert was permitted to leave his computer and the hard drive running overnight. At the conclusion of each session, the hard drive was to be returned to an authorized employee at the office where it would be placed back in a secure location. The government agreed not to "look at any material the defense team may leave in the secure space, including, but not limited to, exhibits and documents, nor . . . perform any forensic analysis of the: bit-by-bit hard drive provided to the defense team." If the computer was left running overnight, the government promised to "make reasonable attempts to be sure no one uses the offered secure space in the defense expert's absence."

After the parties entered into the stipulation, Lavaty assembled a "computer forensics cart" to take over to the U.S. Attorney's Office for his examinations. On November 27, 2006, defense counsel told the district court that Lavaty felt "comfortable" with the stipulation and protective order and planned on commencing his examination. Counsel estimated that Lavaty needed approximately 150 hours for the: full forensics exam and to create all the exhibits necessary for trial.

The defense was permitted to access the evidence for fourteen months — that is, from November 14, 2006 (the date of the stipulation), to the start of the trial on January 17, 2008. Over the course of that time, defense counsel raised various budge', timing, and staffing problems that counsel maintained were preventing the defense from adequately examining the hard drive. On January 4, 2008, less than two weeks before trial (which had been adjourned numerous times up to that point), Wright moved to continue trial based on Lavaty's inability to finish his examination, citing Lavaty's other obligations with the FPD office. Counsel also noted that her own schedule and work demands had prevented her from concentrating fully on the case. The district court denied the continuance. Wright renewed the motion one week later, on January 11, 2008, but it was denied again.

Wright argues that the evidence was not made reasonably available to him because the district court failed to recognize the defense office's budget and staffing problems, Lavaty's other duties with the FPD office, and the court's earlier denial of Wright's request for an outside expert, which was denied because it was deemed too costly.

Interpretation of the Adam Walsh Act is an issue of first impression in this circuit; indeed, the Seventh Circuit is the only Court of Appeals yet to consider the Act. See United States v. Shrake, 515 F.3d 743 (7th Cir. 2008) (rejecting a facial challenge to the Act's constitutionality). There are a number of district court cases considering whether defendants were given "ample opportunity for inspection, viewing, and examination at a Government facility" of child pornography material, yet none of those cases is particularly helpful to Wright.

Wright principally relies on United States v. Knellinger, 471 F.Supp.2d 640 (E.D.Va. 2007). There, the district court concluded that the defendant had not been given an ample opportunity to conduct an examination of the evidence and thus ordered the government to turn over to the defendant a copy of the hard drive. Id. at 650. In Knellinger, the defendant intended to pursue the theory that the child pornography he was charged with possessing was not produced using real minors. Id. at 647; see Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). The defendant's expert witnesses, who would have to be privately retained, testified that they would not agree to work on the case if they could only perform their examination at a government facility. Knellinger, 471 F.Supp.2d at 647-48. One expert testified that while he normally charged approximately $135,000 for his services in a child pornography case, he would charge approximately $540,000, excluding moving expenses, in a case in which he had to analyze the material away from his office. Id. at 647. He also testified that even if he were to perform his examination at a government facility, "he wouldn't be able to service the client or the attorney effectively." Id. (internal quotation marks omitted). As a result, he would not agree to work on a case like Knellinger's. Similarly, another expert testified that he would not work on the case "because of the difficulty associated with moving equipment to, and adequately performing his analytical work in, a Government facility." Id. at 648. Therefore, the terms of the Adam Walsh Act effectively precluded the defendant from pursuing his only viable defense.

Knellinger is easily distinguishable. Unlike in Knellinger, Wright's forensic expert, Lavaty, claimed he was "comfortable" with the parties' terms for providing Wright access to the hard drive. Wright was afforded fourteen months to conduct his examination and does not claim that the agreed upon terms entered into by the parties precluded Wright from pursuing a viable defense theory. Rather, Wright bases much of his argument on the fact that prior to the Adam Walsh Act being passed into law, the district court found that the government's proposed terms of access "would hamper defendant's preparation of this case," and thus ordered the government to provide Wright a mirror copy of the hard drive. However, that ruling bears little, if any, relevance to whether the government's proposed terms provided Wright with "ample opportunity" to examine the evidence.

After the Adam Walsh Act became law, the district court granted the government's motion for reconsideration and reversed its prior order.

Wright's argument essentially boils down to the following contention: the Adam Walsh Act requires that the defendant and the government have equal access to the child pornography evidence. Yet this is not what the Act provides. It provides only that the defendant be given "ample opportunity" to examine the evidence. In any event, none of the cases that Wright cites is apposite. For example, in United States v. Cadet, 727 F.2d 1453, 1469 (9th Cir. 1984), we held that the government is required to identify witnesses to the crime whose testimony may be exculpatory. It was in that context that we observed that "[b]oth sides have an equal right, and should have an equal opportunity, to interview [such witnesses]." Id. (internal quotation marks omitted).

Nor does the Seventh Circuit's decision in Shrake help Wright. In Shrake, after rejecting the defendant's facial challenge to § 3509(m), the court expressed its concern over the fact that the prosecution provided its own private expert consultant an exact copy of the hard drive, but denied the defense the same. 515 F.3d at 746. The court stated that rather than asking the district court to foreclose testimony by the prosecution's expert, which the district court denied doing, "[t]he appropriate relief — which defense counsel never sought — would have been access on equal terms." Id. at 747. Shrake had no occasion to define what it meant by "access on equal terms." However, by "access," the court appears to have been referring to the types of forensic tools each side had available to it in performing its examination. Indeed, the court noted that "Shrake's counsel did not seek access on equal terms, perhaps because the prosecution's expert did not use any forensic tool that was unavailable to the defense expert when he examined the hard drive." Id. Thus, any defense request for "access on equal terms" would have been pointless. In any event, Shrake clearly does not hold that the defendant and the government must be given an equal amount of time to examine the evidence, which is Wright's main contention.

We need not define the exact parameters of what it means to give a defendant "ample opportunity" to examine child-pornography evidence. Wright was permitted to access the hard drive for a period of fourteen months in a secure location within the U.S. Attorney's Office. Wright makes no claim that the parties' arrangement threatened to disrupt the attorney-client relationship or that the defense team's work product was compromised in any way. In short, Wright was given "ample opportunity for inspection, viewing, and examination" under the Act. See United States v. Cordy, 560 F.3d 808, 816 (8th Cir. 2009) (in a case governed by the Adam Walsh Act, defense counsel had adequate time for trial preparation based on having access to the computer data for three months).

2. Did the district court err in denying Wright's motion for a mid-trial continuance?

Next, Wright argues that the district court improperly denied his request for a one-day mid-trial continuance so that Lavaty could conduct further forensic testing. Wright claims that the testing was necessary to rebut the government's argument that the mIRC file server was installed long before 2002 (when Dittfurth moved in with Wright). Practically, this weakened Wright's defense — that Dittfurth was the person responsible for the child pornography.

According to the government, Wright installed the mIRC program on his computer in November 2000. On Day 7 of the trial, during voir dire, the prosecutor asked Lavaty his opinion about when Wright installed the mIRC program on his computer. The prosecutor tried to establish that the program was installed in 2000, not 2002 as Lavaty had testified. The prosecutor's theory was that the 2002 creation date for the mIRC files — which Lavaty testified showed that Wright installed the program in 2002 — was due to the installation of a newer version of the mIRC program, thus replacing the older 2000 version. Lavaty admitted that this was a possible explanation, but also offered reasons for discounting such a theory. After the prosecutor asked, "Did you test that?" Lavaty conceded that he had not.

Wright argues that the government's theory — that the mIRC program had been installed in 2000 — was not disclosed to the defense until just five days before the start of trial. When Lavaty admitted on the stand that he had not tested for the reasons he gave for a 2002 installation date, Wright asked for a one-day continuance so that Lavaty could conduct the requisite tests. The court denied the request. Wright argues that the district court abused its discretion in denying Wright's request for a continuance. We disagree.

First, on January 11, six days before the start of trial, Wright moved for a continuance because the government had apparently just disclosed (five days prior) an expert report alleging that the mIRC and file-server programs were installed in 2000. Wright told the district court that the continuance was necessary because the government's newly disclosed evidence "relates specifically to Count 1 of the indictment which is the ten-year mandatory minimum count in the report of the forensic examination which was done just this last Tuesday by their file server expert who is the guy who wrote the program." The jury acquitted Wright of Count 1. Therefore, to the extent that the continuance would have allowed Wright to better prepare his defense as to Count 1, he has not established prejudice. See Rivera-Guerrero, 426 F.3d at 1139 (holding that the defendant must establish prejudice from the denial of a continuance).

However, it is not entirely clear that the government's theory about the 2000 installation date related only to Count 1. To the extent it related to the other alleged counts, Wright was given a total of eleven days (seven business days) prior to the start of trial to rebut the government's evidence. This was more than enough time. See United States v. Barrett, 703 F.2d 1076, 1081 (9th Cir. 1983) ("[F]airness requires that adequate notice be given the defense to check the findings and conclusions of the government's experts." (quoting United States v. Kelly, 420 F.2d 26, 29 (2d Cir. 1969) (internal quotation marks omitted))).

Moreover, despite Lavaty's concession that he did not test for the 2002 theory, he provided persuasive support during his testimony even in the absence of testing. When the prosecutor concluded his voir dire, defense counsel established on direct examination that Lavaty's 2002 theory was certainly possible. Indeed, Lavaty testified that it was his "belief that the mIRC program was installed on Wright's computer in December 2002. Cf. Rivera-Guerrero, 426 F.3d at 1138 (denial of the continuance "resulted in the defendant's inability to present any evidence that might rebut the government's medical assertions" (emphasis added)).

As we held above, Wright was given "ample opportunity" to prepare his defense. Yet even without considering the fourteen months the defense team had to conduct forensic testing, it had over a week to prepare expert testimony in response to the government's theory that Wright installed the file-server software in 2000. Therefore, the district court did not abuse its discretion in denying Wright's motion for a one-day mid-trial continuance.

3. Are the FPD office and its expert employees of "the court" or is the FPD office a "government facility" under the Act?

Finally, Wright briefly argues that FPD counsel and its expert are under the judiciary, and thus employees of "the court," see 18 U.S.C. § 3509(m) (requiring child pornography to "remain in the care, custody, and control of either the Government or the court"), and that the FPD office is a "government facility," see id. (providing for inspection of the contraband at a "Government facility"). Therefore, Wright maintains, defense counsel was entitled to a mirrored copy of the hard drive. Both arguments are contrary to the statute's language and structure, which differentiate between the Government, the court, and the members of the defense team (including the "defendant, his or her attorney, and any individual the defendant may seek to qualify to furnish expert testimony at trial"). In any event, the government did provide the defense team "ample opportunity" to examine the hard drive at a "Government facility" — the U.S. Attorney's Office. Even assuming the FPD office is a "Government facility," the statute does not require the government to provide the defendant access at multiple facilities.

D. Jury Instruction

Wright's final argument that he was denied a fair trial challenges the jury instructions on Counts 3 through 10. "We review de novo whether the jury instructions accurately define the elements of a statutory offense." United States v. Summers, 268 F.3d (383, 687 (9th Cir. 2001). Wright raises two issues; neither of which we find persuasive.

First, he argues that the court's instructions did not require the jury to find that Wright knew the images that were specifically charged in the indictment were on his computer or that they contained child pornography. We disagree. The jury was instructed to find whether: (1) "the defendant knowingly possessed . . . a . . . desktop computer and hard disk . . . containing a visual depiction of a minor engaged in sexual explicit conduct"; (2) "the defendant knew that the computer and computer disks . . . contain[ed.] a visual depiction of a minor engaged in sexually explicit conduct"; and (3) "the defendant knew that the visual depiction contained in the computer . . . and hard disk . . . contained visual depiction of a minor engaged in sexually explicit conduct." The jury was also told that "[i]n this case the parties have stipulated that the images are of child pornography." Thus there is no question that the jury was asked whether Wright knew that the files charged in the indictment — those stipulated to by the parties — were on his computer or contained child pornography.

Second, Wright contests the court's definition of "possession." Again, in order to convict Wright of Counts 3 through 10, the jury had to find that Wright "knowingly possessed . . . a . . . desktop computer . . . containing a visual depiction of a minor engaged in sexual explicit conduct." Wright argues that in defining the? term "possession," it was error for the court to instruct simply that "[possession as it pertains to computer images can include proof that the defendant had control over the images," because such control would be possible even if Wright did not know whether the images were on his computer. However, in the paragraph immediately preceding that instruction, the court told the jury that "[a] person has possession of something if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it. More than one person can be in possession of something if each knows of its presence and has the power and intention to control it." The district court clearly instructed the jury that Wright had to know the images were on his computer in order to possess them.

E. Cumulative Error

Wright also argues that even if each alleged error did not rise to reversible error, reversal is required due to their cumulative effect on his trial.

"Even if no error individually supports reversal, the cumulative effect of numerous errors may support reversal." United States v. Inzunza, 580 F.3d 894, 911 (9th Cir. 2009). An important factor in considering the cumulative effect of errors is the strength of the prosecution's case. See Nobari, 574 F.3d at 1082.

We have identified two potential forms of error in this case: the exclusion of 404(b) evidence and the prosecutor's improper statements. Neither error, on its own, requires reversal. However, we recognize that much of the prosecution's case was based on Wright's statements to Agent Andrews and Detective Englander. Because we are remanding to the district court for fact-finding on Wright's motion to suppress those statements, we do not address Wright's claim of cumulative error at this stage of the proceedings. See United States v. Blanco, 392 F.3d 382, 397 (9th Cir. 2004) (declining to consider question of cumulative error in light of remand to the district court for further fact-finding).

Nor do we address Wright's sentencing arguments at this time. Even if we were to affirm Wright's Count 3 conviction on review of the district court's fact-finding, the district court should "begin the sentencing process afresh" in light of our reversal of Wright's Count 2 conviction. United States v. Handa, 122 F.3d 690, 692 (9th Cir. 1997).

CONCLUSION

For the foregoing reasons, we REVERSE Wright's Count 2 conviction under 18 U.S.C. § 2252A(a)(1). We REVERSE the denial of Wright's motion to suppress his statements to Agent Andrews and Detective Englander, and REMAND with instructions to the district court to make essential factual findings explaining the basis for its decision. We AFFIRM as to Wright's other claims of error, though decline to consider his claim of cumulative error and his challenges to his sentence until the district court has found those facts essential to our review of the suppression issue and resentenced Wright. This panel retains jurisdiction over all future appeals in this case.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.