The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
District Judge Thomas M. Rose
On May 2, 2006, this case was referred to the Magistrate Judge "on the specific issue of the requests filed by defense counsel in the Notice Regarding Discovery" (Doc. No. 20).*fn1 In that Notice, filed under seal with Court permission, Defendant's counsel list sixteen investigative tasks which they wish to perform in preparing to try this case, and note that the list is non-exhaustive. Id. at 7. They request an order from this Court that does all of the following:
1. Finds that "this non-exhaustive list of tasks are [sic] necessary for a constitutionally sufficient defense of Mr. Baxter";
2. Finds "[t]hat Mr. Baxter's counsel and experts are entitled to complete these tasks with zero risk of an investigation, search, arrest and/or indictment for performing these necessary tasks"; and
3. "It is the government's responsibility to construct, if possible, a mechanism by which these constitutionally necessary tasks can be performed such that defense counsel and its experts' risk of investigation, search, arrest and/or indictment is in fact zero." Id.
Defendant placed his principal*fn2 reliance on the Order of United States Magistrate Judge Frank H. McCarthy in United States v. Shreck, Case No. 03-CR-43-EA (February 8, 2006; copy attached to Doc. No. 20).*fn3 After the Order in question, Magistrate Judge McCarthy recommended that the Indictment in the Shreck case be dismissed on bases similar to those asserted by Defendant here.*fn4 That recommendation was rejected by District Judge Claire Eagen in an opinion filed May 23, 2006. In the course of doing so, Judge Eagen approved, with one amendment, a plan offered by the United States to enable the defendant to conduct the investigation he claimed was necessary with the exception that it was not necessary "to create additional images, virtual or real, depicting minors involved in sexually explicit activity."
Upon review of Judge Eagen's Order, it appeared to the undersigned that the plan approved by him, perhaps with some modification, adequately accommodated Defendant's desire to investigate and prepare for trial, thoroughly and without revealing trial strategy, and the interests of the United States in enforcing the child pornography laws. The parties were therefore ordered to file any objections they had to this Court's adoption of Judge Eagen's procedure. The Government does not object, but Defendant does (Objections, Doc. No. 26).
Defendant stands indicted on one count of receipt of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1) and one count of possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) (Indictment, Doc. No. 2). The case is pending before Judge Rose on Defendant's two Motions to Dismiss. The first of these asserts that the statute on which the Indictment is grounded is unconstitutional on its face and as applied and that the Indictment is defective under the Notice Clause because of its failure to identify the alleged obscene material and because it is drawn in the disjunctive (Doc. No. 15). The second contends 18 U.S.C. § 2252 "is unconstitutional on its face, prevents Mr. Baxter from obtaining a fair trial and reduces defense counsel to ineffective[ness]." (Doc. No. 16).
On March 2, 2006, Defendant filed the referred matter, a Notice Regarding Discovery, in which his counsel assert that they cannot render effective assistance of counsel, either at trial or on the motions sub judice, unless they are permitted to conduct certain investigative tasks (Doc. No. 20). Judge Rose permitted the Notice to be filed under seal (Notation Order granting Doc. No. 19) and on March 29, 2006, conducted, at Defendant's request, an ex parte hearing, on the Notice. After the matter was referred, the Magistrate Judge noted that no attorney-client communications or work product was revealed during the March 29, 2006, hearing and ordered Defendant to "file with the Court not later than June 15, 2006, any authority Defendant wishes the Court to consider supporting the propriety of having this matter decided on a sealed record and ex parte" (Order for Supplemental Briefing, Doc. No. 23, at 1-2). No supplemental brief has been filed.
Defendant's counsel first assert that all of the investigative tasks*fn5 they desire to perform would be violations of the same statutes their client is charged with violating, 18 U.S.C. § 2252. They note that the statute has no exception for receipt or possession of these materials for use in judicial proceedings and that one of them, Mr. Boland, has already been subjected to search pursuant to warrant for such materials in connection with his defense of Mr. Shreck in the Oklahoma case, showing that the Government intends to enforce the statute vigorously, even with respect to defense counsel. They also acknowledge that the Court has no authority to create or impute an exception to the statute (Notice Regarding Discovery, Doc. No. 20, at 8-9). Because the United States has not seen the list of proposed investigative tasks, its counsel has not been in a position to agree or disagree that performing these tasks would violate the law. The Court therefore assumes arguendo that they would and that the United States is not prepared to recognize an exception for defense counsel here, any more than in Oklahoma.
Secondly, counsel argue that all of the investigative tasks they seek to perform are necessary for a constitutionally sufficient defense. However, they provide no argument about why these tasks are constitutionally necessary beyond the general proposition about the fundamental right to present a defense.*fn6 They rely instead on authority: Magistrate Judge McCarthy's decision in Shreck and four unreported decisions of Ohio Common Pleas Courts which they have not furnished to the Court (Notice Regarding Discovery, Doc. No. 20, at 3, n.5). However, the appeal to authority is unavailing: Judge McCarthy's decision has been overruled by Judge Eagen and this Court is unable to assess the persuasiveness of the Common Pleas cases with which it has not been furnished. As a pure matter of authority, ...