Free Motion to Dismiss - District Court of Delaware - Delaware

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IN THE FEDERAL DISTRICT COURT FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA Plaintiff, vs. PHILIP GRAHAM, Defendant. CASE NO. CR 07-157-SLR

MOTION TO DISMISS FOR FAIR TRIAL VIOLATION

PHILIP GRAHAM respectfully requests this court dismiss those counts of the indictment reliant upon 18 U.S.C. 2252A as he cannot obtain a Fair Trial as to the charges related to those counts for the reasons set forth in the attached brief.

/s/ Clayton A. Sweeney, Jr. DE Bar No. 3359 PO Box 55441 Philadelphia PA 19127-5440 (215) 509-1012 (215) 509-1013 (f) [email protected] PENDING ADMISSION PRO HAEC VICE Dean Boland 0065693 18123 Sloane Avenue Lakewood, Ohio 44107 216-529-9371 ph 866-455-1267 fax [email protected]

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LAW AND EXPLANATION FAIR TRIAL STANDARD The Sixth Amendment right to counsel protects "the fundamental right to a fair trial." Strickland v. Washington (1984), 466 U.S. 668. "A fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." (Id). "Whatever disagreement there may be as to the scope of the phrase "due process of law" there can be no doubt that it embraces the fundamental conception of a fair trial, with opportunity to be heard." U.S. Supreme Court Justice Oliver Wendell Holmes in Frank v Mangum, 237 U.S. 309, 347 (1915). "It is of vital importance that the litigant should believe that he will have a fair trial." State ex rel. Turner v. Marshall (1931), 123 Ohio St. 586. "[J]ustice must satisfy the appearance of justice." Offutt v. United States [1954], 348 U.S. 11. What 18 U.S.C. 2252A prohibits 18 U.S.C. 2252A does not prohibit possession of contraband images. It prohibits knowing possession of such items. (See 18 U.S.C. 2252A). Possession of images that merely "appear to be" contraband by visual examination is constitutionally protected. (Ashcroft v. Free Speech Coalition 535 U.S. 234, 122 S.Ct. 1389). The more realistic looking the "appears to be" images the more deserving of First Amendment protection. (Id. at 1404). The possession of images that merely "appear to be" contraband by visual examination and depict an actual minor engaged in the conduct depicted is not constitutionally protected. That possession is only illegal, however, if the possessor knows the item depicts an actual minor.

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(18 U.S.C. 2252A). In preparing its case, the government is permitted to perform the following tasks, among others, in preparation for trial: 1. 2. 3. 4. 5. 6. 7. Research the origin of the indicted items on the Internet and elsewhere Attempt to ascertain the identity of the individuals allegedly depicted in the indicted items Download and analyze the information on any website that currently hosts a copy of the indicted items Identify, locate and interview, if possible, the photographer of the indicted item Identify, locate and interview, if possible, the person whose digital image manipulation work resulted in the indicted item Visit all websites that are contained in the website history found on Graham's computer to gather evidence, if any, from those locations. To attempt to rebut defense arguments that the indicted items do not depict actual minors engaged in the conduct depicted, it can prepare and present digital imaging exhibits to argue that current technology does not permit the creation of images like the indicted items To attempt to rebut defense arguments that Graham lacked the capacity to know the indicted items were not constitutionally protected, it can submit the indicted items to an expert witness for analysis and testimony regarding the capacity of average citizens to make that determination.

8.

These are just some of the tasks the government is entitled to perform in preparation of its case and rebuttal of the anticipated defense case or arguments in pre-trial hearings. Whether it will perform any or all of the above tasks is irrelevant to Graham's argument here and his Fair Trial rights. The government has the right to fully investigate its case. Graham has the same right as a general proposition supporting a Fair Trial. He has the right to perform all of the above tasks and more not disclosed in this pleading in order to gather potentially relevant evidence about the indicted items, prepare necessary expert witnesses and necessary digital image exhibits needed for both pre-trial hearings and for trial. While the government in this case will perform, or has the option to perform, a range of evidence gathering tasks in preparation for hearings and trial, defense counsel is unable to perform any of those tasks as they are prohibited by 18 U.S.C. 2252A only for defense counsel 3

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and defense experts. In state and federal child pornography prosecutions, government digital imaging experts have testified in both pre-trial hearings and at trial. (See Figure 1 and United States v. Hill, Case No. 4:04CR57 (Eastern District of Texas); United States v. Watzman, Docket No. 03 CR 1032 3, (Eastern Division of Illinois); United States v. Fuller, 77 Fed. Appx. 371 (6th Cir. 2003)). The government has also provided digital image exhibits to support their arguments and witness testimony in those cases. In federal child pornography prosecutions defense digital imaging experts have testified in both pre-trial hearings and at trial. (See Hill and Watzman). Those defense counsel and experts provided digital image exhibits supporting their testimony. In state cases, courts and juries rely upon defense digital imaging testimony and digital image exhibits. (Figure 1) State courts in Pennsylvania permit presentation of digital imaging expert testimony and related digital image exhibits. (See Exhibit 1, PA Protective Order). The court in Stewart also found those tasks necessary to provide a fair trial for a Pennsylvania citizen facing child pornography possession charges. (Id). Pennsylvania's child pornography statutes contain a specific exception for defense related conduct for "judicial purposes." (18 P.A. C.S.A. § 6312(f)). 18 U.S.C. 2252A, et seq. has no such exception. Under federal law, the conduct authorized by the court in Stewart and all other cases listed in Figure 1 violates 18 U.S.C. 2252A only if performed by defense counsel or its experts even in preparation for this trial. The tasks constitute violations of federal child pornography statutes related to possession, transportation, reproduction and receiving. Counsel's inability to properly prepare a defense It was Graham's intention to offer digital imaging expert witness testimony and digital

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image exhibits to challenge the government's assertion the seized images were violative of the statute. It was his intention to have his counsel use such digital image exhibits in the cross examination of some of the government's witnesses. Such impeachment exhibits are not required to be provided to the government in discovery. It was his intention to use other digital image exhibits as exhibits to various pre-trial motions and related hearings. It was his intention to fully investigate the source of these images on the Internet and elsewhere. To be efficient, it was his intention to have his counsel and experts perform all the same tasks the government performed (or has the option to perform) in preparing its case. It is presumed one or more government witnesses will claim the indicted images depict an actual minor engaged in the conduct depicted in the image. In fact, the government must insist this is true to avoid dismissal of this case. To counter that testimony and government argument, Graham needs to produce digital image exhibits demonstrating the indistinguishability of illegal actual child pornography and legal, constitutionally protected, apparent child pornography. The creation of that apparent child pornography court exhibit, however, is prohibited ­ and only so when produced and used by defense counsel and its experts. The government's evidence in this case, apparent child pornography, are items it will claim are real child pornography. It has no restriction on its ability to copy those items, distribute them to agents, counsel and experts and regularly confer on them and refer to them preparing for trial. Defense counsel and Graham are completely deprived of that significant advantage. The government regularly chooses to exercise its enforcement discretion to the benefit of state law enforcement and private citizens who are hired by the state to assist them in child pornography cases. For example, in several Ohio child pornography cases, state prosecutors have hired Dr. Hany Farid. (See Ohio v. Heilman, 2003 CRB 458; Ohio v. Brady, exhibit 2 and

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Ohio v. Harrison, 2005-CR-10-099). In each of those cases, the state prosecutors transported alleged child pornography in interstate commerce to Farid. (A violation of 18 U.S.C. 2252A for which there is no exception). Farid received the alleged child pornography images in interstate commerce. (Another violation of 18 U.S.C. 2252A). He possessed the alleged child pornography in those cases during his review and analysis of it to prepare his expert report. (A third violation of 18 U.S.C. 2252A). Farid and the state of Ohio violated federal law on no less than nine occasions in just those three cases alone. Farid is not some obscure expert who is unknown to the federal government. He has been used as a digital imaging expert in federal cases. (See Frabizio, supra). He is a lead trainer of the federal government in this area. (Exhibit 2). The federal government exercised its discretion to not investigate, search, arrest or indictment anyone in connection with Farid's federal law violations. Defense counsel and its experts expect no such benefit from the exercise of the government's discretion in this case. The United States has used at least one other private citizen as a digital imaging expert witnesses. It used Farid in a federal case from the First Circuit. (United States v. Frabizio 2006 WL 2384836 (D.Mass.)). In U.S. v. Fuller (2003), 77 Fed.Appx. 371, the United States used Douglas Rehman, as its digital imaging expert. Mr. Rehman has his business address as 18950 U.S. Highway 441, #201, Mt. Dora, Florida 32757. (Exhibit 1, Rehman Report in United States v. Debeaux). Mr. Rehman received a copy of the Fuller's entire hard drive at his office in Florida. (See Transcript in Fuller). That act alone constitutes three violations of 18 U.S.C. 2252A (Shipping by AUSA, receipt and possession by Rehman). Mr. Rehman was also used by the United States Attorney in Fort Worth Texas in U.S. v. Debeaux (2005) Case Number 4:04CR-081-Y. The private, non-profit agency called the National Center for Missing and Exploited

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Children, maintains a database of alleged contraband digital images. This possession by a nonlaw enforcement agency staffed with private citizens also violates 18 U.S.C. 2252A. As such, states and the federal government agents have transported across state lines, alleged contraband for its experts to analyze. There is no exception in the federal statute for such transportation to possession by a private citizen even when performed by the federal government. To date there is no record of any private citizen expert witness for the state or government having a search conducted of his home and person related to his work as a digital imaging expert witness for the government in a child pornography case. This is all true despite the fact state prosecutors and federal prosecutors and their experts' conduct is regularly identical to the conduct prohibited to be performed by Graham's counsel and digital imaging experts. The government may argue that what Graham's counsel intends to do as counsel as well his use of an expert is not required in order for Graham to obtain a fair trial. That argument fails when compared the government's preparation and use of its own private citizen and law enforcement experts. The margin of victory in defense cases is often marked by the completion of tasks that the government chose not to embark upon or deemed "unnecessary." The defense cannot be limited to performing tasks that the government deems "necessary." Without dismissal, the government has a tremendous and unconstitutionally unfair advantage. Its expert is allowed possession of the images to analyze them. It can present his testimony. He can discuss his analysis of the alleged contraband images he received. He can present to the jury digital image exhibits derived from the alleged contraband images. He can present to the jury digital image exhibits derived from other sources to reinforce his testimony. The government can present the alleged contraband images as exhibits to the jury. The

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government can investigate website information on the seized computer to determine what sites the computer operator visited or did not visit. The government can investigate websites to determine whether they contain alleged contraband or not. The government can send copies of the images to a law enforcement only database to assist in its investigation. That act alone reveals that merely viewing such digital images is insufficient to determine their contraband nature. The government and its witnesses can regularly refer back to the seized images and prepared exhibits before and during trial. Graham's counsel and any potential expert are prohibited from all such conduct by operation of the federal child pornography statutes. Graham's counsel is unable to impeach the government's witnesses with any exhibits or information contradicting the assertion that the seized images contain actual minors. Graham's digital imaging expert witness is reduced to ineffective if not entirely useless. The government cannot argue that Graham's proposed digital imaging expert's effectiveness is lessened, but sufficient. Such testimony by defense digital imaging expert witnesses has undeniably changed the outcome of identical cases as summarized above. The chill on the defense in this case is obvious and it is here to stay. Graham cannot get a fair trial no matter the prosecutor, defense counsel or defense expert witness involved in this case. The government retains an extreme advantage while Graham's fatal disadvantage is clear. Graham recognizes that dismissal is a drastic remedy, but no other remedy exists for him until the law permits him to prepare for this trial. Graham is risking the loss of his liberty in the murkiest and most unbalanced of arenas imaginable. He cannot effectively contest the evidence. He cannot impeach the government's witnesses who testify about or rely upon the charged items. He cannot investigate the evidence. He cannot have the services of an effective digital imaging

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expert. He cannot prepare effective digital image trial exhibits. He is utterly without recourse except to sit and watch an inexorable march to conviction with his hands already handcuffed behind and the presumption of innocence an empty platitude. A. Precedent for Dismissal This dilemma has been presented to two state trial courts and one state appellate court who have all ruled a citizen cannot obtain a fair trial under these conditions. (Exhibits 3 ­ 6). Exhibit 3 is a trial court dismissal of an Ohio case involving identical charges. Exhibit 5 is the appellate opinion affirming that dismissal. Exhibits 6 and 7 involve the dismissal of another Ohio case citing the Fair Trial violation. As an example of the stark unfairness, the court in Brady pointed out that the state in that case had hired a college professor and erstwhile child pornography expert, Hany Farid. It sent, in interstate commerce, to Farid, copies of the allegedly contraband images from the Brady case. (Exhibit 3). Farid received and possessed these items. If contraband, the state and Farid violated the federal statute three times. Farid was not and has never been threatened with prosecution for violation of the federal statute. In fact, he has subsequently testified as a government expert in federal cases. (United States v. Frabizio, 341 F.Supp.2d 47 (D.Mass.2004). Since Brady, he also testified as an expert for the State of Ohio performing the same federal-statute-violating tasks again. (Ohio v. Harrison, 2005-CR-10-099). The purposeful inequality of the application of the federal statute, i.e. to the detriment of defendants, but the benefit of prosecutors is obvious. B. The "Protect the Children" Response The federal government often responds to these motions that the prohibitions on Graham's defense counsel and defense experts are necessary to protect children. That is, minors depicted in such images as may be found during Graham's counsel's or expert's investigation

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and trial preparation are harmed by their images even being viewed. While that position is logically questionable, the U.S. Supreme Court has found "the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative." (United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 814, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). The federal government has the power to agree to respect this court's protective order in this case. It chooses not to do so for tactical advantage to prosecutors. This is patently the case because in all such prosecutions, federal and state prosecutors regularly use thousands of such alleged contraband images, share them with detectives, expert witnesses, law enforcement databases and their non-law enforcement personnel and display them to countless juries across the country. If merely viewing such images was truly a harm to children, prosecutors would be the most egregious child abusers in the country. They are not. C. Harm to Graham in Cross Examining Government Witnesses In addition to crippling any potential defense, the prohibition on these necessary pre-trial investigatory and trial preparatory tasks harms Graham's ability to confront the evidence the government is able to acquire without threat of federal prosecution. Graham's counsel is unable to impeach the government's witnesses with any exhibits or information contradicting the government's assertion that the seized images contain actual minors. Graham is unable to effectively make use of a digital imaging expert witness, presuming he could retain one willing to risk federal indictment, to challenge the government's technological claim that Graham could easily have known the indicted items were not constitutionally protected. This lack of capacity by Graham has been admitted to by government digital imaging expert witnesses in several cases. (See, e.g. Frabizio).

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In U.S. v. Frabizio (August 11, 2006) 2006 WL 2384836 (D.Mass) the government's leading digital imaging expert admitted that he lacked the capacity to determine whether a digital image was constitutionally protected or not. Following that testimony, the court found the government's leading digital imaging expert from the FBI, Thomas Musheno, could not meet any of the Daubert standards nor anything equivalent to them. (Id). It excluded him from the case based upon his admission regarding his lack of capacity. The Frabizio court addressed the "threshold question [of] whether visual observation is at all appropriate to the task at hand: distinguishing real images from virtual ones." (Id. at 2). The court concluded that "neither an expert witness nor a lay jury, using only visual means, can determine whether the images in this case are real or virtual to the level of certainty required in a criminal prosecution." (Id. at 2). (Emphasis added). At a pre-trial hearing, provided the ability to pursue and present the appropriate evidence, Graham would have established that he, like Musheno, lacks the capacity to determine whether a digital image is constitutionally protected or not. Once established, 18 U.S.C. 2252A is de facto vague as applied to Graham. There is no case decision, federal or state, in which any digital imaging expert witness has testified, holding that mere possessors like Graham have the capacity to know whether a given digital image is constitutionally protected or not ­ with good reason ­ they do not. This fact can be established by displaying for the court (and any relevant government witnesses on the topic) an array of indicted items mixed with digital image exhibits created to "appear to be" contraband. No government witness nor this court will be able to reliably distinguish between the constitutionally protected and not constitutionally protected items. This demonstration in a pre-trial hearing will establish the vagueness of this statute as applied to Graham. That very demonstration has been presented to several other courts (as noted above) with identical results ­

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no court has concluded that viewing such images enables the viewer to know whether the image is constitutionally protected or not. That presentation will never be conducted because of defense counsel and any defense expert's reasonable fear of federal prosecution for even preparing and presenting the necessary exhibits to that hearing. The government may argue that this presentation can be conducted using images that do not "appear to be" contraband. However, it is unlikely the government would, following such a presentation, concede that the inability to distinguish alterations in such legal images also applies equally to alleged contraband images. And, the government is not required to make any such concession. It can easily respond to that presentation using images that do not "appear to be" contraband by arguing that Graham has failed to show the court that constitutionally protected images and those that are not of this type are indistinguishable. To rule for the government on this motion, this court must find that Graham can get a fair trial despite the reality that evidence that is available which would result in the dismissal of the entire case for statutory vagueness cannot be presented. And, it cannot be presented solely because the federal government has selectively chosen to impose the strictures of the federal statute on defense counsel and their experts while not enforcing the statute for violations committed by private citizen experts, like Farid, who work exclusively for state and federal prosecutors.

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CONCLUSION Wherefore, Mr. Graham respectfully requests this court dismiss this case as he is unable to obtain a constitutionally fair trial in light of the application of federal law exclusively to defense counsel and defense experts. That application has deleted valid factual and constitutional defenses afforded to him by the United States Constitution. /s/ Clayton A. Sweeney, Jr. DE Bar No. 3359 PO Box 55441 Philadelphia PA 19127-5440 (215) 509-1012 (215) 509-1013 (f) [email protected] PENDING ADMISSION PRO HAEC VICE Dean Boland 0065693 18123 Sloane Avenue Lakewood, Ohio 44107 216-529-9371 ph 866-455-1267 fax [email protected]

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that one true and correct copy of the foregoing has been furnished to the Edmund Falgowski, Esquire., U.S. Attorney's Office, 1007 Orange Street, Suite 700 , P.O. Box 2046, Wilmington, DE 19899-2046 by filing through the CF/ECM electronic filing system this 31st day of March, 2008. /s/ Clayton A. Sweeney, Jr.

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walk in their shoes
at the Nation's foremost conference on responding to the victimization of children.

18TH ANNUAL

CRIMES AGAINST CHILDREN CONFERENCE
AUGUST 21­24, 2006 DALLAS, TEXAS
Presented by the Dallas Children's Advocacy Center Exhibit 2 and the Dallas Police Department

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AGE PROGRESSION, REGRESSION AND FACIAL RECONSTRUCTION
Presented by: Stephen M. Loftin Monday 3:00­4:30 pm (3B) Wednesday 1:00­2:30 pm (10B)

DIGITAL IMAGING FORENSICS: FROM PHOTONS TO PIXELS TO PHOTOSHOP
Presented by: Hany Farid, PhD Tuesday 8:00­9:30 am (4C) Tuesday 1:00­2:30 pm (6C)

This presentation will demonstrate techniques used at NCMEC for age progressing long term missing children and also the age regression of detectives who use photos of themselves to investigate Internet crimes. CROSS EXAMINATION OF WITNESSES IN ICAC CASES
Presented by: Tracy Thompson Braun & Judy Johnston Monday 3:00­4:30 pm (3C) Thursday 8:00­9:30 am (12D)

This presentation will discuss visual and computational techniques for detecting tampering in digital media. Implications of computer graphics technology to the recent "virtual porn" debate will also be discussed. FAST FORENSIC ACQUISITIONS
Presented by: Steve Branigan Tuesday 8:00­9:30 am (4D)

This workshop will address effective cross examination techniques for expert witnesses in ICAC cases. STRATEGIES FOR EFFECTIVE CASE REVIEWS AND STAFFINGS
Presented by: Selena Munoz Monday 3:00­4:30 pm (3E)

This session will cover tips and techniques for performing forensic acquisitions fast. THE USE OF PLAY THERAPY IN THE ASSESSMENT AND TREATMENT OF SEXUALLY ABUSED CHILDREN, PART I & II
Presented by: Eliana Gil, PhD Tuesday 8:00­11:30 am (4E-5E)

This session will examine the need for the case review/case staffing process and explore successful strategies for establishing the same. METHAMPHETAMINE AND CHILDREN: A TOXIC COMBINATION
Presented by: Emma Raizman, MD Monday 3:00­4:30 pm (3F) Tuesday 1:00­2:30 pm (6F)

This workshop will explore specific ways in which play therapy can advance therapeutic goals when working with abused children. THE 5 B'S OF CHILD ABUSE: BRUISES, BURNS, BONES, BELLY & BRAIN, PART I & II
Presented by: Cindy Christian, MD Tuesday 8:00­11:30 am (4F-5F) Wednesday 8:00­11:30 am (8F-9F)

This presentation will discuss Methamphetamine: the dynamics of a meth lab, medical effects on adults and children, risks to children exposed to the drug in utero and the relationship between drug use and child abuse. MEDICAL ANALYSIS OF CHILD PORNOGRAPHY
Presented by: Sharon Cooper, MD Monday 3:00­4:30 pm (3H) Tuesday 8:00­9:30 am (4H)

This presentation will provide an overview of the medical evaluation of abusive injuries including patterns of injury, role of diagnostic studies, and conditions mistaken for abuse. CASE STUDY: THE GREEN RIVER KILLER, PART I & II
Presented by: Jeffrey Baird & Robert Wheeler, PhD Tuesday 8:00­11:30 am (4i-5i) Wednesday 8:00­11:30 am (8i-9i)

This presentation will discuss how child pornography is a link to various forms of child sexual exploitation and will emphasize the "normalization" of sexual harm being promoted to kids via the media. THE MAKING OF A CHILD ABUSE DETECTIVE
Presented by: Brian Killacky Monday 3:00­4:30 pm (3P) Tuesday 10:00­11:30 am (5P)

This presentation will discuss what can be learned from the investigation, prosecution and forensic psychological evaluation of the serial killer Gary Ridgway who pled guilty to 48 counts of murder. DEFENSIVE TACTICS FOR NON-LAW ENFORCEMENT PERSONNEL, PART I & II
Presented by: Billy Hataway & Tom Popken Tuesday 8:00­11:30 am (4J-5J)

This presentation will discuss the necessary skills and talents that those responsible for investigating crimes against children should possess or develop to reach their professional capacity. ADVANCED ISSUES IN FORENSIC INTERVIEWING, PART I & II
Presented by: Martha Finnegan & Catherine Connell Tuesday 8:00­11:30 am (4A-5A)

This session will provide information and examples of defensive tactics that may be utilized in the event a situation is encountered that requires self defense. COURTROOM PSYCHOLOGY: HOW TO BE A GOOD WITNESS AND SURVIVE IN THE COURTROOM
Presented by: Lawrence Braunstein Tuesday 8:00­9:30 am (4L) Wednesday 3:00­4:30 pm (11L)

This workshop will review the pitfalls, difficulties, and concerns of interviewing victims in child pornography and Internet traveler cases. INTERNATIONAL FAMILY ABDUCTION
Presented by: Julia Alanen Tuesday 8:00­9:30 am (4B) Thursday 8:00­9:30 am (12B)

This program will address issues such as body language, the importance of what you say and how you say it, demonstrative evidence and effective presentation, the trial as theatre, feeling comfortable in the courtroom, how to defend yourself on cross examination and how to protect yourself in the witness box. COLD CASE CHILD DEATH INVESTIGATION
Presented by: Brian Killacky & Ron Laney Tuesday 8:00­9:30 am (4P)

This presentation will discuss civil and criminal legal remedies to international parental/family abduction.

This presentation will discuss the importance of a cold case or long term investigative approach into the death of children.

Exhibit 2
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CRIMES AGAINST CHILDREN CONFERENCE

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Exhibit 3

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[Cite as State v. Brady, 2007-Ohio-1779.]

COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellant, - vs DANIEL BRADY, SR., Defendant-Appellee.

: :

OPINION

CASE NO. 2005-A-0085 : : :

Criminal Appeal from the Court of Common Pleas, Case No. 2004 CR 349. Judgment: Affirmed.

Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellant). Dean Boland, 18123 Sloane Avenue, Lakewood, OH Appellee). 44107 (For Defendant-

WILLIAM M. O'NEILL, J. {¶1} Appellant, the state of Ohio, appeals the judgment entered by the

Ashtabula County Court of Common Pleas. The trial court dismissed a total of 50 counts against appellee, Daniel Brady, Sr. ("Brady"). {¶2} Brady was indicted on 17 counts of pandering obscenity involving a minor,

fourth-degree felonies, in violation of R.C. 2907.321; 17 counts of pandering obscenity

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involving a minor, second-degree felonies, in violation of R.C. 2907.321; 16 counts of pandering sexually oriented material involving a minor, second-degree felonies, in violation of 2907.322; and five counts of gross sexual imposition, third-degree felonies, in violation of R.C. 2907.05. Brady pled not guilty to all the counts against him. {¶3} Upon Brady's motion, the trial court bifurcated the five gross sexual

imposition charges from the remaining counts. The gross sexual imposition charges were tried separately and are not at issue in this appeal. {¶4} The trial court appointed Dean Boland to serve as an expert witness for

Brady. Boland runs a consulting company. One of his specialties is the analysis of computer images. Boland has testified as an expert witness for defendants charged with possession of computer pornography in state and federal courts. Boland is also a licensed attorney and is Brady's appellate counsel in this appeal. Boland did not serve as Brady's counsel at the trial court level. {¶5} Boland's testimony was necessary in light of the United States Supreme Court's decision in Ashcroft v. The Free Speech Coalition.1 In Ashcroft v. The Free Speech Coalition, the United States Supreme Court held that virtual child pornography was protected speech under the First Amendment to the United States Constitution and, thus, could not be banned by child-pornography statutes.2 Boland's expert

assistance essentially entailed two functions. First, he would review the state's exhibits to determine whether they were virtual images or if they contained real children. Second, through the introduction of other exhibits, he would attempt to demonstrate the

1. Ashcroft v. The Free Speech Coalition (2002), 535 U.S. 234. 2. Id. at 256. 2

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difficulty of distinguishing between actual and virtual child pornography. {¶6} The same day the trial court appointed Boland as an expert, it issued a Specifically, the protective order

protective order regarding potential evidence. provided: {¶7}

"A compact disc has been provided (or will be provided) by the State of

Ohio to counsel for defendant, David W. PerDue, of evidentiary matter containing possible contraband in the nature of child pornography. {¶8} "Defense counsel has a right and duty not only to review the images on

the disc, but also to provide those images to imaging experts for purposes of examination and possible preparation of testimony pertaining to those images. {¶9} "It is necessary to transport this compact disc to allow counsel for the

defendant to render effective assistance of counsel to his client and that counsel for the defendant, counsel for the State of Ohio, as well as anticipated expert witnesses, including Dean Boland [address and phone number deleted] are hereby authorized to possess this compact disc for this purpose. {¶10} "Defense counsel is authorized to transport this compact disc to Dean Boland for purposes of providing legal representation to their client. {¶11} "Dean Boland is hereby authorized to possess this compact disc to perform the necessary examination on this compact disc for purposes of possible evidentiary use." {¶12} Boland interpreted this protective order as giving him permission to view and possess the potentially illegal material with immunity from prosecution. His belief was based on the language in Ohio's obscenity statutes that permits possession of

3

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certain otherwise illegal material if it is used for a "proper purpose" by a "prosecutor, judge, or other person having a proper interest in the material."3 {¶13} In June 2005, the state provided the evidentiary disc to Boland. addition, the state sent similar materials to its expert witness, Dr. Hany Farid. {¶14} On June 24, 2005, the Federal Bureau of Investigation ("FBI") executed a search warrant on Boland's residence. The FBI seized Boland's computer and several compact discs. Included in the seized material was computer equipment containing potential exhibits Boland had created for trial and the compact disc containing the images at issue in this matter. An affidavit submitted in support of the search warrant alleged Boland violated Section 2252A, Title 18, U.S.Code. This federal statute does not contain the exemption for a "proper person" using the material for a bona fide purpose similar to the exemptions contained in the Ohio statutes. {¶15} A hearing was held before the trial court on October 14, 2005. At the time of the hearing, Boland still faced potential indictment stemming from the execution of the June 2005 search warrant. Boland testified that, upon the advice of his counsel, he would not accept another copy of the prospective exhibits containing the allegedly illegal images in this matter. At the conclusion of this hearing, Brady orally moved to dismiss the indictment. {¶16} Following the hearing, Brady filed a written motion to dismiss the indictment. The state filed a brief in opposition to Brady's motion to dismiss the In

indictment. Attached to the state's motion was a copy of the search warrant affidavit.

3. See R.C. 2907.32(B); R.C. 2907.321(B)(1); R.C. 2907.322(B)(1); and 2907.323(A)(3)(a). 4

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{¶17} The trial court granted Brady's motion to dismiss and dismissed all 50 counts of the indictment related to pornography. {¶18} The state has timely appealed the trial court's decision pursuant to R.C. 2945.67.4 The state raises two assignments of error. Its first assignment of error is: {¶19} "The trial court erred in granting appellee's motion to dismiss, where it was based on facts that went beyond the face of the indictment." {¶20} Brady's motion to dismiss was permitted by Crim.R. 12, which provides, in part: {¶21} "Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue." {¶22} In his motion to dismiss, Brady was arguing that his due process right to a fair trial was violated. His contention was that, due to circumstances beyond his control, namely the federal criminal matter against Boland, he was denied the assistance of an expert witness. {¶23} The United States Supreme Court has held: {¶24} "[W]hen a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where *** a defendant is denied the

4. See, also, State v. Hayes (1986), 25 Ohio St.3d 173, 174-175. 5

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opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake."5 {¶25} In Ake v. Oklahoma, the Supreme Court recognized the fundamental right to expert witnesses in certain cases.6 In following Ake v. Oklahoma, the Supreme Court of Ohio has held that when an indigent criminal defendant makes a sufficient showing that an expert is necessary, the Due Process Clause, as set forth in the Fifth and Fourteenth Amendments to the United States Constitution, requires the appointment of an expert witness to aid in the defense.7 {¶26} The state argues Brady's motion to dismiss was premature in that it challenged the sufficiency of the indictment. We agree that "a pretrial motion [to

dismiss] must not entail a determination of the sufficiency of the evidence to support the indictment."8 However, in this matter, Brady was not challenging the sufficiency of the potential evidence to support the charges in the indictment. Rather, he was making a constitutional challenge, arguing his right to a fair trial was compromised due to the FBI's actions against Boland. {¶27} Brady's motion to dismiss did not implicate any trial issues; thus, it was capable of determination prior to trial pursuant to Crim.R. 12. {¶28} The state's first assignment of error is without merit.

5. Ake v. Oklahoma (1985), 470 U.S. 68, 76. 6. Id. at 80-82. 7. State v. Mason (1998), 82 Ohio St.3d 144, 150. 8. State v. Riley (Dec. 31, 2001), 12th Dist. No. CA2001-04-095, 2001 Ohio App. LEXIS 5999, at *5, citing State v. O'Neal (1996), 114 Ohio App.3d 335, 336. 6

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{¶29} The state's second assignment of error is: {¶30} "The trial court erred in granting appellee's motion to dismiss where appellee claims he cannot receive a fair trial due to limitations placed upon appellee's expert witness." {¶31} This court uses a de novo standard of review when reviewing a trial court's decision regarding a motion to dismiss.9 {¶32} "Pursuant to Ake, it is appropriate to consider three factors in determining whether the provision of an expert witness is required: (1) the effect on the defendant's private interest in the accuracy of the trial if the requested service is not provided, (2) the burden on the government's interest if the service is provided, and (3) the probable value of the additional service and the risk of error in the proceeding if the assistance is not provided."10 {¶33} Presumably, the trial court considered these factors. Thereafter, the trial court determined an expert witness was necessary in this matter to ensure Brady's due process right to a fair trial. Such decision is left to the sound discretion of the trial court.11 On appeal, the state does not contest the trial court's decision that Brady was entitled to the services of an expert. {¶34} Boland testified that, upon the advice of counsel and due to the threat of additional federal prosecution, he could not possess another copy of a compact disc containing the allegedly illegal images in this matter. Further, he testified he could not conduct a proper investigation of any websites from which the images might have

9. (Citations omitted.) State v. Palivoda, 11th Dist. No. 2006-A-0019, 2006-Ohio-6494, at ¶4. 10. State v. Mason, 82 Ohio St.3d at 149, citing Ake v. Oklahoma, 470 U.S. at 78-79. 11. State v. Mason, 82 Ohio St.3d at 150. 7

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allegedly originated. Finally, he could not use his expertise to create potential exhibits for Brady's trial. {¶35} Not only was Brady denied the expert services of Boland, he was denied the expert services of all potential experts. Boland testified that no other expert witness would risk federal prosecution to assist Brady. Further, Boland testified that, in his opinion, Brady's counsel was duty-bound to inform potential experts about the possibility of federal prosecution. In light of this requirement, it would be nearly

impossible to find a competent expert. {¶36} The state asserts Brady was not prejudiced because Boland's creation of certain images involved "morphing." Morphing is the practice of altering innocent

pictures of real children to make the children appear to be engaged in sexual conduct.12 The affidavit described certain images that were allegedly in Boland's possession. The state contends these images violated R.C. 2907.323(A). A specific "morphed" image may or may not violate R.C. 2907.323(A), depending on a legal and factual conclusion of whether the particular image shows a minor "in a state of nudity." We decline to engage in an analysis of this issue at this time. There is no evidence in the record regarding these specific images. Since no actual images were introduced, we cannot conclude that Boland's alleged production of these images violated R.C. 2907.323. On a similar point, we note the state gleans all of its factual references from the search warrant affidavit. This affidavit, like many affidavits submitted in support of a search warrant, contains significant hearsay information.13 Moreover, the sole purpose of the

12. Ashcroft v. The Free Speech Coalition, 535 U.S. at 242. 13. State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, at ¶33, quoting Illinois v. Gates (1983), 462 U.S. 213, 238. 8

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affidavit was to provide the magistrate with sufficient probable cause to issue the search warrant.14 Finally, there is no evidence as to what the FBI agents actually found during the search of Boland's residence and person. {¶37} At the hearing, it was suggested that Boland could review the materials at issue in Brady's case at the prosecutor's office. This suggested solution would still not permit Boland to create exhibits for trial. Additionally, Boland testified that he uses certain software in his analysis that the prosecutor's office does not have. Also, even though he would be in the prosecutor's office, it could be argued that he "received," albeit temporarily, child pornography in violation of Sections 2252(a)(2)(A) and/or 2252A(a)(2), Title 18, U.S.Code. Another of Boland's concerns was visiting websites where the allegedly illegal images may have originated. He believed he could still be subject to federal prosecution for conducting illegal internet activity at the prosecutor's office. This belief was legitimate in that Sections 2252(a)(2)(A) and 2252A(a)(2), Title 18, U.S.Code prohibit receiving any images of child pornography that have traveled in interstate or foreign commerce, "including by computer." Finally, Boland testified

regarding his concern that he would not be able to record any of his work at the prosecutor's office for fear of federal prosecution, therefore, he would have to memorize his entire analysis of possibly hundreds of images for his trial testimony. Upon

consideration of Boland's testimony, the trial court concluded that viewing the images at the prosecutor's office was not a viable solution. We agree.

14. State v. Craig, at ¶33, quoting State v. George (1989), 45 Ohio St.3d 325, paragraph two of the syllabus. 9

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{¶38} What occurred in this case was obviously troubling to the trial court. It would be akin to the following hypothetic situation, where a defendant is charged with possession of cocaine. The defendant contends the substance in question is baking soda. Pursuant to R.C. 2925.51(E), the defendant seeks to have an independent

analysis of the substance. When the defendant's expert laboratory analyst receives the substance, the FBI seizes the substance and threatens to indict the analyst on federal narcotics charges. Obviously, that analyst is not going to want to receive another

sample of the purportedly illegal substance and risk further prosecution. Moreover, in light of these circumstances, it is extremely doubtful that another analyst would risk federal prosecution and prison time for the purpose of assisting the defendant. Thus, the defendant is left without his constitutional right to the assistance of an expert to defend against the charges. {¶39} In this matter, Brady had a constitutional right to an expert witness. Due to circumstances beyond his or the trial court's control, Brady was denied the assistance of an expert witness. Without the services of an expert witness, there was no way to provide Brady a fair trial. Accordingly, the trial court did not err when it dismissed the charges against Brady. {¶40} We recognize there are a limited number of instances where it will be possible to determine that a defendant cannot have a fair trial prior to the trial itself. However, the unique circumstances of this case qualify this matter as one of those instances.

10

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{¶41} The state's second assignment of error is without merit. {¶42} The judgment of the trial court is affirmed.

COLLEEN MARY O'TOOLE, J., concurs, CYNTHIA WESTCOTT RICE, P.J., dissents with Dissenting Opinion.

______________________

CYNTHIA WESTCOTT RICE, P.J., dissents with Dissenting Opinion. {¶43} A Crim.R. 12 pre-trial motion to dismiss cannot reach the merits or substance of the allegations as there is no equivalent of the civil rules' summary judgment procedure in the criminal arena. State v. Riley, 12th Dist. No. CA2001-04095, 2001-Ohio-8618, *4-*5. Therefore, pre-trial motions to dismiss "can only raise matters that are capable of determination without a trial on the general issue." Id. at *4; see, also, State v. Patterson (1989), 63 Ohio App.3d 91, 95. It is the sufficiency of the indictment which is judged at this pre-trial stage. Akron v. Buzek, 9th Dist. No. 20728, 2002-Ohio-1960, *4. {¶44} Brady claimed that his motion to dismiss "was not based upon any facts in his case," and maintains the trial court was correct in dismissing the matter on his pretrial motion. I disagree. The trial court's ruling was premature and inappropriate at the pre-trial juncture and I must respectfully dissent. {¶45} If a claim goes beyond the face of the indictment, then it is improperly presented under Crim.R. 12, and should be presented at the close of the state's case as

11

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a motion for acquittal pursuant to Crim.R. 29. State v. Varner (1991), 81 Ohio App.3d 85, 86. Under this guideline, it was premature for the trial court to grant Brady's motion to dismiss based on alleged facts that had not yet occurred. Brady's motion went beyond the face of the indictment. At no point in time did Brady challenge the

sufficiency of the indictment as far as charging the proper offenses or the constitutionality of the offenses thus charged. Rather, Brady only asserted that his expert witness and all similarly-situated experts would be precluded from effective performance. {¶46} The majority upholds the pre-trial dismissal on the basis that Brady could not receive a fair trial. In order to reach this conclusion, the majority must speculate first that Brady's expert could not perform his duties without violating federal law (a false assumption in any event because Brady's expert and appellate counsel conceded at the oral arguments that the expert could have viewed the material at the sheriff's or prosecutor's office and performed his tasks there). Second, the majority must accept the assumption that Brady would not be able to find an expert to accomplish the expert tasks required. The final assumption required by the majority's analysis is that the expert would have been able to show that the images in Brady's possession were indistinguishable from virtual pornography images. This amounts to assumptions based on assumptions based on assumptions. It is incredible to me that the majority would allow Brady to escape prosecution under these circumstances. As much as I believe Brady is entitled to a fair trial, I also believe the victims of child pornography deserve to have their alleged perpetrator stand trial.

12

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{¶47} Each aspect of Brady's motion to dismiss speculated that Brady would be precluded from presenting an adequate defense as a result of the chilling effect of the FBI's actions against Boland. Brady assumed that the State would present the expert testimony of Dr. Farid to support its theory that the materials were photos and depictions of actual children. Brady assumed that no other expert witness would be willing to testify on his behalf for fear of federal prosecution. Brady assumed that

Boland could not present a convincing case by merely viewing the materials at a law enforcement office as opposed to transporting the materials for his own convenience. The trial court, and the majority, have accepted each and every assumption as fact. {¶48} The cornerstone of Brady's argument lies in Ashcroft v. The Free Speech Coalition (2002), 535 U.S. 234. In Ashcroft, the Supreme Court held that a prohibition on virtual child pornography is overbroad. Virtual child pornography does not involve real children but digitally altered or created "children." In doing so, the Supreme Court determined that the government cannot prohibit speech that may, in some tenuous manner, induce a person to illegal behavior. Id at 253. Ashcroft did not address the issue as to whether morphed images of children, that is, the alteration of innocent pictures of actual children using digital technological means, is an appropriate ban. It appears from the record that Boland's activities in creating previous trial exhibits actually involves morphed images of children, activity still illegal under federal law with no exceptions. {¶49} Boland testified that one of his tasks as Brady's expert would have been the creation of certain trial exhibits. Boland stated his "expertise is in the creation and manipulation alteration of digital images." Boland outlined his work product which would

13

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Document 17-5

Filed 03/31/2008

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include an analysis as to whether the materials contained images of actual children. Next, Boland would "prepare digital image exhibits that [would] address the technological issues ***." According to Boland, he would violate federal law by both the possession and analysis of the images as well as the preparation of trial exhibits. {¶50} Presumably, the State's expert would testify that the images depicted actual children and Boland would testify that the images portrayed either virtual children or adults technologically morphed to look like children. Under this theory, Boland's analysis and work product would not violate Ohio or Federal law pursuant to Ashcroft. {¶51} The problem lies in the speculation. Without actually going forward with the trial, it is conjecture to pre-determine Boland's testimony and the impact of the federal law on the effectiveness of that testimony. To that end, the trial court exceeded the scope of a pre-trial motion to dismiss. State v. McNamee (1984), 17 Ohio App.3d 175, 176-177. Boland attempts to cure this defect by asserting that all defense experts would be prohibited from adequate function under the federal application of the law. However, the only testimony elicited at the hearing was that of Boland himself. Boland opined that other experts may not want to work under these threatening conditions, thereby violating Brady's Sixth and Fourteenth Amendment rights. Although

constitutional issues may be determined prior to trial in some circumstances, where that determination turns on an evidentiary issue and goes beyond the face of the indictment, it is inappropriate for a pre-trial adjudication pursuant to Crim.R. 12. Lorain v. Slattery (Sept. 22, 1999), 9th Dist. No. 98CA007140, 1999 Ohio App. LEXIS 4357, *4. {¶52} The court accepted Boland's presumption that other experts may refuse employment on this basis. However, even Boland himself admitted that he would not

14

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be precluded from reviewing and analyzing the evidentiary material; he is only prohibited from possessing that material. Boland acknowledged that he could perform the analysis portion of his expert witness activities at the prosecution's office or in the court. Certainly in either of these locales, Brady does not violate any law because he is merely reviewing the material ­ not possessing the contraband. {¶53} Therefore, the possession aspect of Boland's expert activities can be cured by allowing Boland to work out of the sheriff's or prosecutor's office. The

remaining activities of Boland, the creation of the digital images, would only be illegal under federal law if Boland morphed images of actual children. The problem is that morphed images are still illegal and properly banned under Ashcroft. Therefore, Boland is actively violating the law through the creation of these exhibits. However, the law does not preclude Boland from creating virtual pornography to support his expert testimony. {¶54} Clearly, Brady's motion to dismiss went beyond the face of the indictment. It required the trial court to conduct an analysis into a hypothetical. questions are not appropriate questions of law. Hypothetical

The circumstances could change.

Boland may have completed his analysis and actually agreed with the State. Brady may have been able to find another expert willing to work under threat of federal prosecution. Boland could physically go to the prosecutor's office and review and

analyze the materials. Brady's expert may be able to competently review and advise after viewing the images while they remained in the possession of the State. The same interests which prompted the legislation prohibiting the dissemination of this material,

15

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are the same interests that weigh in favor of maintaining a stationary location for the images to be retained during the analysis. {¶55} This dismissal has essentially provided Brady and any other like-minded individual with a free pass to possess, observe, disseminate, distribute and manufacture any type of pornography without fear of prosecution. The ramifications of plunging down the slippery slope of the majority's analysis are many. Following the reasoning of the majority, any expert can now assert that in order to properly offer an opinion, the expert must essentially recreate the crime. Certainly the majority would be unwilling to allow this diversion in the arena of a murder trial. Yet they see fit to do so here. A murder suspect would not evade prosecution merely because his expert would not be permitted to strike another human being over the head with the murder weapon, yet Brady receives a pass from this court because his expert could not recreate unlawful pornography. The public interest is certainly better served in protecting the victims of child pornography than in allowing such divertive tactics to succeed at evading prosecution. {¶56} For the foregoing reasons, I would therefore reverse and remand this matter.

16

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Exhibit 5

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Exhibit 5

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Exhibit 6

Case 1:07-cr-00157-SLR FIGURE 1

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CASES ADMITTING TESTIMONY BY DIGITAL IMAGING EXPERTS THAT DISTINGUISHING LEGAL FROM ILLEGAL IMAGES OF APPARENT CHILD PORNOGRAPHIC CONTENT IS IMPOSSIBLE VIA VISUAL EXAMINATION

STATE CASES Ohio v. Sparks CR-2002-12-3669 (2004, Summit County) Ohio v. Simms 2003 CR 98 (2004, Columbiana County) Ohio v. Huffman B-0401503 (2004, Hamilton County) Ohio v. Beam 04 CR 00379 (2004, Clermont County) New Hampshire v. Richards 03-S-1321 Ohio v. Tooley C03CR 0547 (2004, Portage County) PA v. Stewart CP-14-CR-323-2006 (Centre County) Protective Order Ohio v. Oliver CR-2005-11-4175 (Summit County) Ohio v. Heilman 03 CR 458 (2003, Trumbull County) FEDERAL CASES U.S. v. Shreck 03-CR-43-H (N. Dist. Oklahoma) U.S. v. Hill 4:04 CR 57 (Eastern District of Texas) U.S. v. Watzman 4:04 CR 57 (Eastern District of Texas) U.S. v. Frabizio 03-10283-NG (2003 Dist of Mass).

Government digital imaging experts testified distinguishing legal from illegal images of apparent child pornography impossible Defense digital imaging experts testified distinguishing legal from illegal images of apparent child pornography impossible

Courts in these cases authorized the use of digital image exhibits of apparent contraband to establish the indistinguishability of images depicting actual minors versus those that merely "appear to depict" a minor