United States v. Shrake, Jason ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 07-1790
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON SHRAKE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05-CR-133-S—John C. Shabaz, Judge.
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ARGUED JANUARY 15, 2008—DECIDED FEBRUARY 6, 2008
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Before EASTERBROOK, Chief Judge, and FLAUM and
EVANS, Circuit Judges.
EASTERBROOK, Chief Judge. 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 unreason-
ably long) but also limits on his expert’s pretrial access
to data.
2 No. 07-1790
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 pornogra-
phy.
(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 de-
fendant to copy, photograph, duplicate, or other-
wise reproduce any property or material that
constitutes child pornography (as defined by
section 2256 of this title), so long as the Govern-
ment 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 mate-
rial 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) re-
quired 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
No. 07-1790 3
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 amend-
ment (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 Su-
preme 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 im-
possible 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 chal-
lenge is impossible unless “no set of circumstances exists
under which the Act would be valid", but they are united
4 No. 07-1790
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 argu-
ment, 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 unques-
tioned 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 amend-
ment, but unavailable in discovery. Think of the Jencks
Act, 18 U.S.C. §3500(a), which provides that “no state-
ment 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 re-
vealed 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 dis-
covery; 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
No. 07-1790 5
terms in Fed. R. Crim. P. 16, all of which must be ap-
plied 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. Posses-
sion 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 part of “the
Government” as §3509(m)(1) uses that word; and, second,
that foreclosing testimony is not an appropriate remedy.
We very much doubt that, if the expert hired by the
United States had an auto accident while driving with the
duplicate hard disk, the United States would accept
liability under the Federal Tort Claims Act. The expert
was a private consultant; there is a substantial difference
between “the Government” and people who provide ser-
vices to the United States under contract. The United
States itself recently drew this distinction in Daniels v.
Liberty Mutual Insurance Co., 484 F.3d 884 (7th Cir.
2007), when arguing that a consultant during a federal
6 No. 07-1790
investigation is not a federal employee or otherwise part
of “the Government.” The prosecutor has not tried to
reconcile the position taken here with the one taken in
Daniels. Section 3509(m)(1) requires the materials to
“remain in the care, custody, and control” of either the
executive or the judicial branch of the United States. A
contractual arrangement allowing the prosecutor to
determine how an expert will use the copy may afford
“control", but that’s only one of three statutory require-
ments. “Custody” is no less important.
Wardius v. Oregon, 412 U.S. 470 (1973), holds that
rules about pretrial discovery in criminal prosecutions
must apply to prosecutors as well as to defendants.
Access provided to private experts retained by the pros-
ecution must be provided to private experts retained by
the defense. The district court did not abuse its discre-
tion, however, in denying Shrake’s pretrial motion to
prevent the prosecution’s expert from testifying. The
appropriate relief—which defense counsel never sought—
would have been access on equal terms. Doubtless the
court also had discretion to prevent the prosecution’s
expert from testifying—or at least to prevent her from
testifying to matters that she investigated using forensic
tools that were not available to the defense expert, who
had to examine the disk in the prosecutor’s office. Viola-
tions of discovery rules (or for that matter the Rules
of Evidence) regularly are enforced by excluding evid-
ence; the prosecutor’s view that exclusion is never permis-
sible would prevent district judges from ensuring com-
pliance with Rule 16 and other requirements for pretrial
disclosure and cooperation. See Taylor v. Illinois, 484 U.S.
400 (1988) (a court may prevent a surprise witness
from testifying). But, to repeat, Shrake’s counsel did not
seek access on equal terms, perhaps because the prosecu-
tion’s expert did not use any forensic tool that was unavail-
able to the defense expert when he examined the hard
drive.
No. 07-1790 7
On to the sentence, which at 330 months is exceedingly
long. Shrake did not molest any of the children in the
video files or produce them himself. And he does not
have a criminal record. Yet the sentence is within a
properly constructed range under the Sentencing Guide-
lines. The district judge calculated Shrake’s offense level
at 40, which for a first offender supplies a range of 292 to
365 months; the judge sentenced Shrake in the middle of
that range, and on appeal such a sentence enjoys a pre-
sumption of reasonableness. See Rita v. United States, 127
S. Ct. 2456 (2007); United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005). After Gall v. United States, 128
S. Ct. 586 (2007), stressed the extent of a district judge’s
discretion in sentencing, and the limits of appellate
review, it is difficult to see how a mid-Guideline sentence
could be upset unless the judge refuses to entertain the
defendant’s arguments or resorts to an irrational extra-
statutory consideration.
What Shrake principally argues is that other people
convicted of violating §2252(a) have received lower sen-
tences, engaged in conduct worse than his, or both, so that
18 U.S.C. §3553(a)(6), which tells judges to avoid unwar-
ranted disparities in sentencing, calls for relief. To evalu-
ate this argument, we must understand just how Shrake
reached offense level 40.
The base offense level for distributing child pornog-
raphy is 22. U.S.S.G. §2G2.2(a)(2). The district court
added two levels because the material depicted a pre-
pubescent minor, §2G2.2(b)(2), five because Shrake
distributed the material in exchange for other images,
§2G2.2(b)(3)(B), four because the material contains depic-
tions of sadistic or masochistic conduct, §2G2.2(b)(4), two
because Shrake used a computer, §2G2.2(b)(6), and five
because his relevant conduct included 600 or more images,
§2G2.2(b)(7)(D). Every video counts as 75 images, see
§2G2.2 Application Note 4(B)(ii), and Shrake had at least
8 No. 07-1790
eight. He maintains that three of the eight should not
have been counted, because they were first mentioned in
the presentence report. But he did not ask the district
judge to disregard them. The prosecutor says that they
were available for the district judge to view, had an
objection been made; none was, so the judge was entitled
to rely on the presentence report’s conclusion that they
are as described. Thus we have 22 + 2 + 5 + 4 + 2 + 5 = 40
and the sentencing range of 292 to 365 months. That
exceeds normal sentences for armed bank robbery, rape,
and some degrees of murder, but Shrake does not main-
tain that the Guidelines themselves are unreasonable
applications of the underlying statutes.
The sentences to which Shrake points as comparisons
are not wholly comparable. Take, for example, United
States v. Barevich, 445 F.3d 956 (7th Cir. 2006). Barevich
was sentenced to 76 months after being convicted of
violating the same statute as Shrake. Barevich had
more images and more videos—but then five levels is
the maximum enhancement for quantity under
§2G2.2(b)(7)(D). Barevich’s final offense level was 27, in
part because he did not receive all of the enhancements
that applied to Shrake and in part because he pleaded
guilty and got a three-level deduction for accepting re-
sponsibility. His Guideline range was 87 to 108 months;
Shrake does not say that this was unduly low. The dis-
trict judge gave a sentence below the range, and the
prosecutor did not challenge that decision; one judge’s
disposition toward lenience is not binding on another
judge.
Or take United States v. Griffith, 344 F.3d 714 (7th Cir.
2003). Griffith was sentenced before November 1, 2004,
when the base offense level for distributing child porn
jumped from 17 to 22. He received all of the enhance-
ments that Shrake did, taking him to level 35, which was
reduced to 32 because Griffith pleaded guilty. That left
No. 07-1790 9
Griffith with a range of 168 to 210 months, and the
judge went outside it to give him a 262-month sentence.
Shrake maintains that Griffith should have received a
sentence higher than his own, because Griffith had two
prior convictions for sexual crimes, but §3553(a)(6) does
not require district judges to nullify changes in the Guide-
lines. The disparity between Griffith and Shrake is not
“unwarranted” when it rests on (a) an increase in the base
offense level after Griffith’s sentence, plus (b) a reduction
for acceptance of responsibility that applies to Griffith but
not Shrake. Defendants who lacked these benefits have
received sentences higher than Shrake’s. See United States
v. Ohlinger, 377 F.3d 785 (7th Cir. 2004) (360 months, the
statutory maximum).
More generally, it is pointless for a defendant whose
own sentence is within the Guidelines to raise this
ground. As we observed in United States v. Boscarino, 437
F.3d 634, 638 (7th Cir. 2006): “Sentencing disparities are
at their ebb when the Guidelines are followed, for the
ranges are themselves designed to treat similar offenders
similarly. That was the main goal of the Sentencing
Reform Act. The more out-of-range sentences that judges
impose . . . , the more disparity there will be. A sentence
within a properly ascertained range therefore cannot be
treated as unreasonable by reference to §3553(a)(6).” See
also, e.g., United States v. Babul, 476 F.3d 498 (7th Cir.
2007); United States v. Gama-Gonzalez, 469 F.3d 1109(7th Cir. 2006). Shrake received a very stiff sentence, but
it is not “unreasonable” under the Supreme Court’s
approach to appellate review after United States v. Booker,
543 U.S. 220 (2005).
AFFIRMED
10 No. 07-1790
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-6-08