United States District Court, S.D. Illinois
ORDER
STACI
M. YANDLE UNITED STATES DISTRICT JUDGE
This
matter is before the Court for consideration of Defendant
Pejman Kamkarian's Motion to Compel Access to Discovery
(Doc. 37). Defendant asserts that he is not being provided an
opportunity to inspect discovery materials located in
Springfield, Illinois and seeks to compel the Government to
transport the materials to a more convenient location in the
St. Louis area. The Government filed a Response (Doc. 39).
For the following reasons, the Motion is
DENIED.
Background
A grand
jury returned an indictment charging Defendant with a single
count of possession of child pornography (Doc. 1). The
indictment arose from an investigation the Federal Bureau of
Investigation ("FBI") conducted from its local
satellite office in Marion, Illinois under supervision from
the FBI's main office in Springfield, Illinois. Pursuant
to FBI standard operating procedures, evidentiary materials
related to child pornography are stored at the vault in the
Springfield headquarters pending trial. The evidence in this
case consists of computer storage devices seized from the
defendant during the execution of a search warrant.
Defendant
has retained an expert to perform a computer forensics
examination of the computer storage devices. The expert would
prefer to examine the evidence at a federal law enforcement
location in the St. Louis metropolitan area and estimates
that it will cost Defendant approximately 3 times more money
if he is required to complete his examination in Springfield.
The Government has agreed to provide access to the material,
but only at the FBI's Springfield headquarters. Defendant
seeks an order compelling the Government to transport the
evidence to a facility that is more convenient and less
expensive for the Defendant.
Discussion
Generally,
Federal Rule of Criminal Procedure 16 requires the Government
to permit a defendant to inspect and copy any documentary
evidence the Government intends to use at trial. Fed. R.
Crim. P. 16(a)(1)(E). The Adam Walsh Child Protection and
Safety Act, 18 U.S.C. § 3509, provides that child
pornography "shall remain in the care, custody, and
control of either the Government or the court" following
seizure in any criminal proceeding. The statute expressly
directs courts to deny any requests by the defendant to copy
or in any way reproduce such material, "so long as the
Government makes the property or material reasonably
available to the defendant." 18 U.S.C. §
3509(m)(2)(A). Material is "reasonably available"
for purposes of the Act 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." Id. § 3509(m)(2)(B); see
United States v. Jarman, 687 F.3d 269, 271 (5th Cir.
2012)("As stated explicitly by Congress, when the
government makes child pornography material available for
examination at a government facility, that
is reasonable availability, and the
only issue to be resolved pretrial relating to § 3509(m)
discovery is whether the government inspection conditions
imposed on a defendant's access at that facility do not
provide ample opportunity to inspect, view, or examine the
material")(emphasis in original).
Here,
the Government has agreed to give Defendant's expert an
opportunity to review and analyze the evidence at the
FBI's main headquarters located in Springfield, Illinois.
But Defendant objects on the basis that the costs of
performing the forensic evaluation in Springfield, Illinois
are significantly higher than performing the analysis in the
St. Louis area because Defendant will incur full-day expenses
for his expert instead of an hourly rate. Such
financial-based arguments have been rejected by numerous
courts. See United States v. Flinn, 521 F.Supp.2d
1097, 1102-03 (E.D. Cal. 2007) ("While a defendant is
entitled to a defense which comports with due process, he is
not entitled to the best defense money can buy: the
fact that some extra cost will be incurred because of §
3509(m) was surely something that Congress considered);
United States v. O'Rourke, 470 F.Supp.2d 1049
(D. Ariz. 2007)(finding that Defendant was provided ample
opportunity despite costs and difficulty arising from experts
having to travel from Ohio to Arizona to inspect hard drive);
United States v. Bortnick, 2010 WL 935842, at *3 (D.
Kan. 2010) (collecting cases).
Moreover,
there is no indication that the Government is imposing
conditions on Defendant's expert that will deny him an
ample opportunity to examine the material or render it not
reasonably available to him. Rather, the Government asserts
that defense counsel and the expert will be permitted to
inspect, view and examine the material at the FBI's main
headquarters in Springfield. Illinois pursuant to standard
FBI procedures for discovery of digital evidence that
contains contraband.
The
inconvenience and costs associated with Defendant's
expert having to spend several days in Springfield, Illinois
cannot be said to deny Defendant ample opportunity to inspect
the ...