Appeal from the United States District Court for the Western District of Wisconsin. No. 05-CR-133-S-John C. Shabaz, Judge.
The opinion of the court was delivered by: Easterbrook, Chief Judge
Before EASTERBROOK, Chief Judge, and FLAUM and EVANS, Circuit Judges
A jury convicted Jason Shrake of possessing images of minors engaged in sexually explicit conduct and of transmitting them in interstate commerce. 18 U.S.C. §2252(a)(1), (4). Shrake sent video files over the Internet to a federal agent who promised other child porn in exchange. The evidence allowed a jury to conclude that some of the participants in these videos were minors-indeed, that one was a toddler. Sentenced to 330 months' imprisonment, he contests not only the penalty (which he says is unreasonably long) but also limits on his expert's pretrial access to data.
The Adam Walsh Child Protection and Safety Act, Pub. L. 109-248, 120 Stat. 587 (July 27, 2006), added 18 U.S.C. §3509(m) to the Criminal Code. It provides:
(m) Prohibition on reproduction of child pornography.
(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.
The computer on which Shrake kept pictures and video files was seized by federal agents. Section 3509(m) required Shrake's expert to visit a governmental office to analyze the contents of the hard disk. Shrake filed a motion asking the district court to order the prosecutor to make a copy of the hard disk for his expert's use; the expert then could use his own forensic tools to analyze the hard disk's contents. The district judge denied this motion on the authority of §3509(m). Shrake maintains on this appeal that §3509(m) violates the first amendment (because 18 U.S.C. §2256, to which it refers, is overbroad), the fifth amendment (because it allows the prosecutor to determine whether evidence comes within the scope of §2256 and because, in Shrake's view, the statute lacks a rational basis), and the sixth amendment (because it deprives the defendant of confrontation and compulsory process).
Shrake's challenges to §3509(m)-a statute that no other court of appeals has encountered-rest on the unstated assumption that the Constitution creates a right to pretrial discovery in criminal prosecutions. The Supreme Court has held, however, that defendants are not constitutionally entitled to discovery. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977); Gray v. Netherland, 518 U.S. 152, 168 (1996). It is accordingly hard to see how limits on discovery could be unconstitutional-and impossible to see how a statute that qualifies its limit with a requirement that the evidence be "reasonably available to the defendant" before trial (§3509(m)(2)(A)) could be invalid. Shrake never attempted to show that the hard disk was not "reasonably available" to his expert, who analyzed it twice before preparing a report. Shrake's lawyer did not ask the prosecutor to provide a better forensic-analysis computer or particular software for his expert's use; he decided to challenge the statute "on its face" and thus lost any opportunity to make use of the "reasonable availab[ility]" clause that dooms any facial challenge. See United States v. Salerno, 481 U.S. 739, 745 (1987). (Justices of the Supreme Court disagree about the correctness of Salerno's statement that a facial challenge is impossible unless "no set of circumstances exists under which the Act would be valid", but they are united on the proposition that facial review is reserved for exceptional situations.)
Consider the argument that §2256 is overbroad because it covers materials in which adult participants could be mistaken for minors. That would be an interesting argument, given Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (holding invalid an older version of §2256), if Shrake were being prosecuted for violating §2256. But he was indicted for violating §2252(a), a statute of unquestioned validity. The only role that §2256 plays is to set a limit on pretrial discovery. Shrake must suppose that, as long as any discovery is available in criminal cases, litigants must have access to all materials that cannot be the subject of criminal punishment. Yet that view is untenable. Think of attorney-client communications or attorneys' work product-protected by the first amendment, but unavailable in discovery. Think of the Jencks Act, 18 U.S.C. §3500(a), which provides that "no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." Section 3509(m), which makes visual depictions "reasonably available" before trial, is much less sweeping than the Jencks Act. Other examples of constitutionally protected speech that need not be revealed in discovery are easy to come by, but the point has been made.
Shrake's other constitutional objections to the Adam Walsh Act fail for the same reason: confrontation and cross-examination rights do not concern pretrial discovery; allowing a prosecutor to determine (subject to judicial review) which materials are outside the scope of pretrial discovery is no more problematic for §3509(m) than for the Jencks Act (or, for that matter, any of the terms in Fed. R. Crim. P. 16, all of which must be applied in the first instance by counsel for the party in possession of the information). And the assertion that §3509(m) lacks a rational basis is unfathomable. Possession of child pornography is a crime. Congress is entitled to reduce the number of copies in circulation of material that a grand jury had found, by a preponderance of the evidence, to constitute child pornography. Indeed, two courts of appeals had suggested that district courts use their discretion in managing discovery under Rule 16 to prevent duplication of these materials. See United States v. Horn, 187 F.3d 781 (8th Cir. 1999); United States v. Kimbrough, 69 F.3d 723 (5th Cir. 1995). The judges who proposed this approach had not taken leave of their senses.
Only one aspect of the statute's implementation gives us pause. Although the district court denied Shrake's motion for an exact copy of the hard disk for his expert's use, the prosecution provided such a copy to its own expert. When Shrake learned about this differential access, he asked the district court to foreclose testimony by the prosecution's expert; the judge denied this motion. In this court the United States defends this decision by arguing, first, that an expert for the prosecution is ...