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United States v. Eychaner

United States District Court, E.D. Virginia, Newport News Division

February 15, 2018

Elmer Emmanuel Eychaner, Defendant.



         This matter is before the Court on a motion to compel production of evidence filed by Defendant Elmer Emmanuel Eychaner ("Defendant"), requesting that the Court order the Government to transfer evidence of child pornography from Newport News, Virginia, to a Government facility in Spokane, Washington, where Defendant's expert can view the evidence. Def.'s Mot. Compel 1, ECF No. 14. Defendant argues that the Government has not made the evidence "reasonably available" to him as required by 18 U.S.C. § 35O9(m)(2). Id. at 5. For the reasons noted below, Defendant's motion to compel production of evidence is DENIED.

         I. Background

         On August 16, 2017, Defendant was charged in an indictment with the following five counts: Access with Intent to View Visual Depictions of Minors Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. §2252(a) (4) (B) (Count One); Attempted Receipt of Obscene Visual Representations of the Sexual Abuse of Children, in violation of 18 U.S.C. § l466A(a) (1) (Count 2); Destruction of a Tangible Object to Impede a Federal Investigation, in violation of 18 U.S.C. § 1519 (Count Three); Obstruction of Justice - Attempted Evidence Tampering, in violation of 18 U.S.C. § 1512(c)(1) (Count Four); and Penalties for Registered Sex Offender, in violation of 18 U.S.C. §2260A (Count Five). Indictment, ECF No. 1.

         These charges arise from Defendant's alleged conduct while on lifetime supervision from a prior conviction for possession of material containing child pornography. Gov.'s Opp'n Br. 2, ECF No. 17. While on supervision, Defendant allegedly installed a program onto his laptop called "Cortona, " which utilizes voice command technology to operate various computer programs. Id. This was allegedly done to thwart the U.S. Probation Office's computer monitoring software program, which operates by monitoring keystrokes. Id. Using Cortona, Defendant allegedly was able to view numerous "anime" images of child pornography, as well as one or two images of child pornography involving actual children. Id. The Government claims that Defendant later broke his computer, removed the hard drive, and cleared his search history. Id.

         The evidence at issue in the motion to compel consists of roughly 600 screenshots captured by the Probation Office's monitoring service,, that purportedly show the search terms Defendant used, the images he viewed, and records his internet usage on the relevant date. Def.'s Mot. Compel 2, ECF No. 14. The Government argues that, by making the screenshots available to the Defendant for review at a facility in Newport News, the evidence is reasonably available to Defendant, satisfying the Government's statutory obligation. Gov. Opp'n Br. 5, ECF No. 17. Defendant, however, argues that the evidence is not reasonably available for review by Defendant's digital forensics expert. Def.'s Mot. Compel 8-9. The expert is located in Washington State, and Defendant asserts that it is unreasonable to require the expert to review the screenshots in Newport News because doing so would cost the defense $5, 470 more than it would to review the evidence in Washington. Id.

         Defendant requests that the screenshots be sent either by mail or by password-protected, encrypted email from the Newport News facility to the Government facility in Spokane. Id. at 9. He notes that the U.S. Attorney's Offices in Norfolk, Richmond, and Alexandria have sent evidence containing child pornography in numerous other cases to Spokane for review by the very same expert. Id. at 3-4. He also notes that U.S. Attorney's Offices in several other districts have also permitted the transfer of evidence containing child pornography to Government facilities in Spokane. Peden Decl. 4, ECF No. 14-3. The Government replies that any such transfer will be of limited use to a digital forensics expert, [1] and that the reproduction of the child pornography is, in and of itself, a harm that § 3509 (m) was designed to prevent. Gov.'s Opp'n Br. 9-10.

         II. Applicable Law

         In a criminal prosecution, Federal Rule of Criminal Procedure 16 requires that "the government must permit the defendant to inspect and to copy or photograph . . . data [] [and] photographs ... if the item is within the government's possession, custody, or control and: (i) the item is material to preparing the defense; [or] (ii) the government intends to use the item in its case-in-chief at trial." Fed. R. Crim. Pro. 16(E) .

         In child pornography cases, discovery under Rule 16 is modified by 18 U.S.C. § 3509(m). This section provides that Mi]n any criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody, and control of either the Government or the court." 18 U.S.C. § 3509(m)(1). The statute also provides that “[n]otwithstanding 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 ... so long as the Government makes the property or material reasonably available to the defendant." § 3509(m)(2)(A) (emphasis added). Evidence is reasonably available 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." § 3509(m)(2)(B) (emphasis added).

         III. Discussion

         Defendant's motion primarily relies upon United States v. Knellinger, 471 F.Supp.2d 640 (E.D. Va. 2007) to argue that this Court has the authority to compel the Government to transfer the requested evidence to the Spokane facility. See Def.'s Mot. Compel 6-7. This reliance, however, is misplaced because Knellinger involved facts establishing that analysis at a Government facility would be so costly as to make it infeasible. Id., 471 F.Supp.2d at 648-49. In Knellinger, one defense expert stated that he would charge $135, 000 to analyze the child pornography evidence at his own facility, but would charge $540, 000 if forced to analyze the evidence at the Government's facility in Richmond, Virginia. Id. at 647. Moreover, the expert also expressed concerns that his equipment might not be reliable after moving it to Richmond, and stated that he would not agree to work on the case if forced to use the Government facility. Id. A second expert testified similarly, stating he would also refuse to work on the case if required to use the Richmond facility. Id. The court, noting that the expert analysis was required for the defendant's legal defense and that analyzing the evidence at the Government facility would be so prohibitively expensive as to preclude such analysis, found that the Government had not provided "ample opportunity" for the defendant's experts and counsel to review the evidence. Id. at 649. The court then ordered the Government to produce a copy of the hard drive and transfer it to defense counsel. Id. at 650.

         Knellinger is inapposite to the instant case. In the Court's view, Knellinger stands for the proposition that, where the use of a particular Government facility would be so prohibitively expensive as to preclude expert analysis, a court may order the transfer of the evidence either directly to defense counsel or to another Government facility. Here, Defendant has not alleged that the additional cost of $5, 470 for the expert to examine the evidence in Newport News would make analysis infeasible. Additionally, numerous courts faced with facts similar to the instant case have held that the additional cost or inconvenience of traveling to examine evidence at a Government facility does not deny a defendant "ample opportunity" to review the evidence. See United States v. Hornback, No. CRIM.A. 3:10-13, 2010 WL 4628944, at *3 (E.D. Ky. Nov. 8, 2010) (noting that "Knel linger is clearly distinguishable" and that the defendant "has not provided evidence that the costs are so high in this case as to make Lakes' analysis infeasible. To the contrary, he has merely said it would be difficult, require driving, and increase costs. Those factors do not deny 'ample opportunity."'); United States v. Doane, 501 F.Supp.2d 897, 902 (E.D. Ky. 2007) (noting that defense counsel conceded that requiring an expert to travel from Kentucky to Indianapolis, Indiana, to review the evidence would not be "unduly burdensome" and provided "ample opportunity" under the statute, and indicating that this understanding was supported by the court's view of Knellinger and other relevant caselaw); United States v. O'Rourke, 470 F.Supp.2d 1049, 1058 (D. Ariz. 2007) (finding that the defendant was provided "ample opportunity" under the statute where his defense counsel and experts had to travel from Ohio to Arizona to examine the evidence); United States v. Burkhart, No. CRIM. 06-14 ERIE, 2006 WL 2432919, at *1 (W.D. Pa. Aug. 21, 2006) ("Defendant also argues that the contents of the hard drive at issue cannot be made reasonably available to defendant because the defense expert is located far from this jurisdiction and thus will entail substantial, unreasonable, and undue expense. However, the relevant standard does not consider expense or location of the expert as factors to consider when determining whether the material is reasonably available to a defendant.").

         The above-cited cases are persuasive for the proposition that a defendant is not denied "ample opportunity" under the statute when the Government insists on a review occurring at a particular Government facility, so long as the cost of such ...

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