Petition for Writ of Certiorari — Cordy v. United States (No. 09-107)

Supreme Court, U.S.

1 <0) 7 FILED.

\ " OF=10 7 Jut 23 2009

OFFICE OF THE CLERK

Sn The

Supreme Court of the Anited States

RALPH CORDY,

Petitioner,

VS.

THE UNITED STATES OF AMERICA,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES MARTIN DAVIS, ESQ.

500 Farnam Plaza

1623 Farnam Street

Omaha, Nebraska 68102

Telephone: (402) 341-9900

Facsimile: (402) 341-8144

Attorney for Petitioner Ralph Cordy

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 242-2831

QUESTION PRESENTED

Does the Sixth Amendment to the Constitution of

the United States give a defendant in a criminal case

who has good cause the right to discharge his lawyer

and retain a new one without interference from the

trial court?

ul

PARTIES TO THE PROCEEDING

Petitioner (defendant and appellant below):

Ralph Cordy

Represented by James Martin Davis, Esq.,

500 Farnam Plaza, 1623 Farnam Street,

Omaha, Nebraska 68102

Respondent (plaintiff and appellee below):

The United States of America

Represented by Elena Kagan, Esq., Solicitor

Genera! of the United States of America, 950

Pennsylvania Ave., NW, Washington, D.C.

20530-0001

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TABLE OF CONTENTS

Page

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CITATIONS FOR OPINIONS BELOW ............... 1

BASIS FOR JURISDICTION IN THIS COURT... 1

CONSTITUTIONAL AND STATUTORY PRO-

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REASONS FOR GRANTING CERTIORARI....... 8

1. The Sixth Amendment right to counsel of

choice commands that the accused be

allowed to be defended by the counsel he

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2. Atrial court’s concern for the administra-

tion of justice must give way to the

Defendant’s Sixth Amendment right to

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Appendix A: Opinion of the Court of Appeals

for the Eighth Circuit filed on

March 25, 2009 (United States

of America v. Ralph Cordy, 560

F.3d 808 (8th Cir. 2009))............. App. 1

Appendix B: District Court Memorandum

and Order dated May 27,

iV

TABLE OF CONTENTS - Continued

Page

Appendix C: District Court Judgment in a

Criminal Case dated November

Appendix D: Motion to Withdraw of Attorney

Steven Lefler filed on July 10,

MEE Sisco ters ccesscikicsaaneenve App. 45

TABLE OF AUTHORITIES

Page

CASES

Gandy v. Alabama, 569 F.2d 1318 (5th Cir.

REE To ADRS ERD DORCORER GPE IT eS TESS 9

United States v. Bowe, 221 F.3d 1183 (11th Cir.

BR erst tues ss cE ve PR ORC ME eR Er PE rst Op ey ARE SSRN 9

United States v. Cordy, 560 F.3d 808 (8th Cir.

A ae SEER ET IN ATER CE Rien Pen OREO Nay UC eRe 1

United States v. Gonzalez-Lopez, 548 U.S. 140,

126 S.Ct. 2557, 165 L.Ed.2d 409 (2006)................... 8

Wheat v. United States, 486 U.S. 153, 108 S.Ct.

TORE, TOO E.G LAO CABG; ov cccccvevicccccescsccceses 9,10

CONSTITUTIONAL PROVISIONS AND STATUTES

Sixth Amendment to the Constitution of the

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1

CITATIONS FOR OPINIONS BELOW

The opinion of the Eighth Circuit Court of

Appeals (Appendix A) is reported at 560 F.3d 808 (8th

Cir. 2009). The decision of the District Court dated

May 27, 2007 (Appendix B), and the District Court’s

Judgment in a Criminal Case (Appendix C), were not

reported.

+

BASIS FOR JURISDICTION IN THIS COURT

The Eighth Circuit Court of Appeals filed its

opinion on March 25, 2009. 28 U.S.C. § 1254(1) con-

fers jurisdiction on this Court to review on writ of

certiorari the opinion of the Court of Appeals.

oa

CONSTITUTIONAL AND STATUTORY

PROVISIONS AT ISSUE

The Petitioner, as Defendant below, was charged

in a one-count indictment with possession of child

pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).

The Petitioner alleges that the District Court denied

his Sixth Amendment right to counsel for his defense.

The Sixth Amendment to the Constitution of the

United States of America provides as follows:

In all criminal proceedings, the accused shall

enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have _ been

committed, which district shall have been

2

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the wit-

nesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his

defence.

STATEMENT OF THE CASE

The Defendant below, Ralph Cordy, was indicted

for violating 18 U.S.C. § 2252(a)(4)(B), possession of

child pornography. Thereafter, Mr. Cordy privately

retained defense counsel, Steven Lefler, a Nebraska

lawyer, to represent him. For eight months, Mr.

Cordy believed he was being ably represented by his

lawyer. Knowing little or nothing about federal

criminal practice, Mr. Cordy had no reason to think

otherwise.

However, on May 22, 2007, the district court

issued an order severely chastising the Defendant’s

lawyer for a litany of deficiencies in his representa-

tion of the Defendant. In this nine-page order, the

district court judge vociferously criticized Mr. Lefler

for his failure to file motions timely, his failure to

comply with local rules, for being unavailable for

hearings and trial dates, for having no excuse for

being unfamiliar with relevant case law and theories

of defense, for filing a frivolous Daubert motion which

was not supported by a brief and which contained no

specifics to this case or to any evidence he wanted to

3

challenge, for not following proper procedures with

respect to obtaining discovery materials, and for his

failure to cause his defense expert to independently

analyze the physical evidence in this case in a timely

manner.

At some unknown date thereafter, Mr. Cordy

obtained and read this trial court order. Up until this

time, he had relied on his lawyer’s competence to

adequately perform his duties and assumed his

lawyer was doing his job. It was only after reading

the trial judge’s order which contained the harsh and

extensive criticism that he learned for the first time

about the numerous deficiencies in his lawyer’s

performance.

Mr. Cordy then had a pointed conversation with

his lawyer. The lawyer admitted to making all of the

mistakes the trial judge had pointed out in her order,

so Mr. Cordy immediately discharged the attorney.

He also asked the lawyer to file a motion to withdraw

as his counsel of record so he could retain a new

lawyer.

The Defendant then attempted to obtain new

counsel. He had arranged with a Virginia attorney to

take over the case, but that attorney backed out at

the eleventh hour. Steven Lefler, the original defense

attorney, dutifully filed his Motion to Withdraw and

advised the trial court that he had been discharged. A

hearing was scheduled on this motion for July 16,

2007, which was only six days before the trial date.

4

Mr. Cordy had discharged his lawyer as a direct

result of the trial judge’s written criticism of the

lawyer and because the lawyer had admitted his

failures to his client. Nonetheless, despite the fact

that the Defendant fired his lawyer because of an

order issued by the trial court, that same court

refused to let the Defendant discharge this lawyer

and retain another one. Instead, the trial judge, after

refusing to allow the Defendant to obtain new

counsel, made the Defendant proceed to trial with a

lawyer who was no longer of his own choosing and

whom he had an absolute right to discharge.

At the hearing, Mr. Cordy told the judge he

needed and wanted a new lawyer. He made reference

to the trial judge’s earlier order which cited the

motions that his attorney had untimely filed and that

were denied, and also referenced his lawyer’s failure

to get the necessary evidence to his expert for a

timely examination and opinion. The Defendant was

particularly concerned because, while he had retained

the expert, that expert would have no admissible

opinions to offer because his attorney had never

forwarded the evidence the expert needed to review.

The Defendant’s attorney admitted to the trial

judge at the hearing that his client was frustrated

with him and had fired him. He admitted he had

failed to get the evidence to the expert for examina-

tion and that the expert had complained about that.

He also admitted, on the record: “I screwed up the

deadline for which I apologize to Mr. Cordy.” He

admitted the Defendant had lost confidence in him

5

because: “I screwed up. I didn’t know about the line of

cases.... But regardless he has lost confidence in

me.” He also admitted he had “messed up” in other

areas as well.

The Defendant had every right to lose confidence

in his lawyer. Besides its criticism of the attorney in

its written order dated May 22, 2007, the trial court

had criticized the attorney in open court at an earlier

hearing on April 17, 2007. At this earlier hearing, the

trial judge had expressed concern about the attor-

ney’s ability to work on this case. The trial judge also,

on the record, expressed concern about the attorney’s

unwillingness to represent the Defendant because of

the lawyer’s statements that he was getting into some

other line of work, that his life was seemingly in a

state of flux, and about his impending move from

Nebraska to Arizona.

At the hearing on April 17, 2007, the trial judge

advised the Defendant’s attorney that “the Court

should expect some reasonable availability of Coun-

sel.” As a result of the attorney’s seemingly perpetual

unavailability, the Court ordered that he “not take

any more cases in this Court.” She also told the

attorney that she was “not going to be granting you

any more extensions in any more cases knowing what

your schedule is like.”

In summary, the Defendant’s lawyer had

admitted on the record that he had “messed up” and

“screwed up” in a number of important particulars.

On April 17, 2007, the trial court had criticized the

6

attorney in open court and in the presence of his

client. Then, on May 22, 2007, the trial court

excoriated the attorney again, this time memori-

alizing those criticisms in a written order which was

subsequently read by the client.

Despite all of this condemnation, the trial judge

refused to allow the Defendant to discharge his

attorney and retain a new one. Instead, the trial

judge compelled the Defendant to go to trial with a

lawyer in whom he had totally lost confidence and

who was no longer a lawyer of his choosing. At that

trial, the Defendant was convicted. He was later

sentenced to incarceration for 108 months.

After the Defendant was sentenced on October

31, 2007, he timely appealed his case to the United

States Court of Appeals for the Eighth Circuit. The

only issues presented on appeal were whether the

district court had violated the Defendant’s Sixth

Amendment rights to the counsel of his own choosing,

and to the effective assistance of counsel for his

defense, when the trial court refused to permit the

Defendant to discharge his attorney after that same

trial court had severely criticized that attorney in its

written order.

The Defendant’s sole argument to the Eighth

Circuit was that he had a constitutional] right to fire

his lawyer and to obtain a new one because he had

good cause to do so. Neither in his brief, nor in his

oral argument, did the Defendant ever claim that the

trial court had abused its discretion by not granting

him a continuance or that he had ineffective

assistance of counsel at his trial.

In his argument, the Defendant clearly pointed

out the questions he was raising by his appeal: (1)

Does a defendant have a constitutional right to fire a

privately retained lawyer who he believes is not

effectively representing him? (2) Does a defendant

have a Sixth Amendment right to replace a private

lawyer with another lawyer he believes will

effectively represent him? (3) Does a defendant have

a constitutional right to fire his lawyer when his

reason for doing so is because the trial judge has

severely criticized the performance and effectiveness

of the lawyer by written court. order?

Despite those specific issues being raised, the

Court of Appeals completely ignored those questions.

Instead, the Court of Appeals mischaracterized and

side-stepped the very issues it was called upon to de-

cide. In its opinion, the Court of Appeals ruled: “We

review the denial of a request for a continuance in

order to substitute counsel for an abuse of discretion.”

Even though this was neither an issue nor an argu-

ment raised by the Defendant, the Court of Appeals

held that the district court did not abuse its discre-

tion in failing to grant a continuance nor in denying

the Defendant a new trial. The Court of Appeals,

neither directly nor indirectly, addressed the impor-

tant constitutional questions raised by the Defendant

in his initial appeal. These are the questions he is

8

now asking the Supreme Court of the United States

to address in this case.

REASONS FOR GRANTING CERTIORARI

1. The Sixth Amendment right to counsel of

choice commands that the accused be

allowed to be defended by the counsel he

believes best

Inherent in the Sixth Amendment right to the

assistance of counsel is the fundamental notion that a

person accused of a crime is free to employ counse! of

his or her own choice. A judge should be permitted

little leeway in interfering with that choice.

There are few bigh court opinions on this issue,

but United States v. Gonzalez-Lopez, 548 U.S. 140,

126 S.Ct. 2557 (2006), suggests that this is an

extremely important constitutional right. In that

opinion, this Court specifically ruied that a trial

court’s erroneous deprivation of a criminal defen-

dant’s choice of counsel entitles him to reversal of his

conviction, and in so ruling, stated: “The right to

counsel of choice, however, commands not that a trial

be fair, but that a particular guarantee of fairness be

provided-to-wit, that the accused be defended by the

counsel he believes to be best.” Jd. at 140, 2559.

Most circuit cases interpreting this constitutional

right have tempered a defendant’s constitutional

right to change lawyers with “the general interest in

the prompt and efficient administration of justice.”

9

See United States v. Bowe, 221 F.3rd 1183, 1189 (11th

Cir. 2000); Gandy v. Alabama, 569 F.2d 1318, 1323

(5th Cir. 1978). However, this concern for the

efficiency of the administration of justice is only an

interest, and it is nowhere mentioned in the

Constitution or the Bill of Rights.

Conversely, the Defendant’s right to counsel of

his own choosing is a constitutional guarantee

embodied in the Sixth Amendment right to counsel.

In any strict construction of this right, a court’s

administrative interest must take a back seat to the

constitutional right that belongs to the accused.

The Defendant concedes this right is not absolute

and that it can be “circumscribed in several impor-

tant respects.” Wheat v. United States, 486 U.S. 153,

159 (1988). The Defendant concedes that an accused’s

right to counsel should not be asserted in order to

obstruct orderly judicial procedure or deprive courts

of their inherent power to control the administration

of justice. However, as this Court specifically stated

in Wheat, supra:

Thus, while the right to select and be

represented by one’s preferred attorney is

comprehended by the Sixth Amendment, the

essential aim of the Amendment is to

guarantee an effective advocate for each

criminal defendant rather than to ensure

that a defendant will inexorably’ be

represented by the lawyer whom he prefers.

See Morris v. Slappy, 461 U.S. 1, 13-14, 103

S.Ct. 1610, 1617-1618, 75 L.Ed.2d 610

10

(1983); Jones v. Barnes, 463 U.S. 745, 103

S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Id. at 159.

It is the position of the Defendant that the issue

here is not one of a defendant merely wanting a

lawyer of his own volition, but one in which the trial

judge had already alerted him that his current trial

counsel was ineffective. Thus, even under Wheat, he

was entitled to a new lawyer who would be an

effective advocate for his defense.

2. A trial court’s concern for the administra-

tion of justice must give way to the

Defendant’s Sixth Amendment right to

effective counsel

In addition, when a defendant’s liberty is at

state, and he has good cause to believe he is being

poorly represented, then if justice is to be truly

administered, he should always be permitted to fire

his lawyer and to obtain a new one of his own

choosing. To do otherwise is to allow administrative

form to prevail over constitutional substance.

In this case, the Defendant had good cause to fire

his lawyer. On May 22, 2007, the Court cited in a

written order all of his lawyer’s shortcomings for the

Defendant to see. When the Defendant read this

order, he was justifiably appalled by the language

employed by the trial court concerning his lawyer’s

inadequacies.

11

This order, coupled with the lawyer’s own admis-

sions, made it blindingly clear that if the Defendant

was to have the best defense the law allows, and the

one guaranteed by the Sixth Amendment, he would

have to get another lawyer.

Without regard to the fact that the Defendant

went to trial, and without regard to the performance

of his lawyer at that trial, the Defendant’s rights

were substantially and structurally violated. Win,

lose or draw, a defendant should have the unfettered

right to fire a lawyer who is not doing his job, without

regard to a court’s trial calendar. Win, lose or draw, a

defendant should not be forced to be represented by a

lawyer who he has already fired.

The right to fire a bad lawyer is as much a

constitutional right as the right to hire a good one.

This is the important but seldom addressed issue

raised by this case.

If a defendant, whose very liberty is on the line,

has good cause to fire his lawyer, no court should be

permitted to prevent him from doing so. A defendant

has a right to be defended by counsel who he believes

to be the best. Under our system of jurisprudence,

that determination belongs to the accused. It does not

belong to the courts.

However, until this Court spells out for all other

Federal and State Courts the breadth of the Sixth

Amendment’s right to “the Assistance of Counsel for

his defence”, referred to repeatedly as “a counsel of

one’s own choosing”, then this right is going to be

12

increasingly threatened by judges who believe their

calendar to be more important than the constitutional

rights of a defendant.

CONCLUSION

The decision by the Eighth Circuit completely

avoided the important constitutional questions that

were raised by this Defendant. So also have most

Circuits which seem to always avoid coming to grips

with these issues by passing them off as issues

relating to the right to a continuance versus judicial

administration of justice, completely overlooking the

right to effective counsel guaranteed by our Constitu-

tion.

Only this Court can truly delineate for the

Circuit Courts and District Courts the importance of

the right to counsel of one’s own choosing.

This Court recently, after decades of debate,

finally made clear the meaning of the Second Amend-

ment’s reference to the “right to bear arms.” Now is

the time for the Court to do the same with respect to

the meaning of the Sixth Amendment. Just as

Americans have a constitutional right to possess and

own firearms, they also have a constitutional right to

fire a bad lawyer and to hire a good one. That is what

the Sixth Amendment is all about. This is one of the

legacies the founding fathers gave to us and it must

be enforced. The Defendant respectfully requests that

13

this Court grant his petition for Writ of Certiorari to

the Eighth Circuit Court of Appeals.

DATED: July 23, 2009.

Respectfully submitted,

JAMES MARTIN Davis, Esq.

500 Farnam Plaza

1623 Farnam Street

Omaha, NE 68102

Attorney for Petitioner

Ralph Cordy

App. 1

APPENDIX A

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 07-3538

United States of America,

Plaintiff-Appellee, Appeal from the United

States District Court

for the District of

Nebraska.

Vv.

Ralph Cordy,

Defendant-Appellant.

*¥ & & & E& He F

Submitted: September 26, 2008

Filed: March 25, 2009

Before MURPHY, BOWMAN, and BENTON, Circuit

Judges.

MURPHY, Circuit Judge.

Ralph Cordy was charged with possession of child

pornography in violation of 18 U.S.C. § 2252(a)(4)(B),

convicted by a jury, and sentenced to 108 months in

prison. Cordy appeals his conviction, claiming that he

was denied both his Sixth Amendment right to the

counsel of his choice and the effective assistance of

App. 2

counsel. Cordy also appeals a sentencing enhancement

imposed by the district court.’ We affirm.

I.

The National Center for Missing and Exploited

Children reported the existence of two child

pornography websites to Immigration and Customs

Enforcement (ICE) in 2004. After the ICE Cyber

Crimes Center analyzed the websites’ subscriber lists,

Ralph Cordy was identified as a potential consumer

of child pornography.

In the spring of 2006, agents from ICE and the

United States Postal Inspection Service (USPIS),

along with a deputy ‘from the Douglas County,

Nebraska Sheriff’s Office instigated a “knock and

talk” at Cordy’s home in order to “freshen” some stale

information. The agents informed Cordy that they

were investigating credit card violations. In response

to questions about his email address and suspicious

credit card charges, Cordy asked whether the inquiry

was leading toward child pornography. Informed that

it was, Cordy maintained that he actively searched

for child pornography so that he could report it to a

watchdog website. Cordy could not name the website,

however. He indicated that he occasionally received

unsolicited emails with subject lines referencing

' The Honorable Laurie Smith Camp, United States Dis-

trict Judge for the District of Nebraska.

App. 3

“Russian Lolitas” or “child pornography” but that he

deleted them immediately.

Cordy denied the agents’ request to search his

residence. While agents from ICE and the USPIS

secured the premises, the deputy sheriff obtained a

search warrant. After serving Cordy with the warrant

at his residence, the agents and deputy seized five

computer towers, two laptop computers, and two

external hard drives. Subsequently agents performed

a forensic analysis of the seized hardware and

identified in excess of 6000 images and 100 videos

containing child pornography. Cordy was indicted for

violating 18 U.S.C. § 2252(a)(4)(B), which prohibits

the knowing possession of child pornography. Cordy

retained a private attorney, Steven J. Lefler, to

prepare his defense.

Cordy pled not guilty on October 18, 2006. That

same day the district court issued its case manage-

ment order and established the following deadlines:

October 25, 2006 for discovery, November 7 for

pretrial motions, and trial on December 11. On the

day pretrial motions were due, Lefler moved to

extend the deadline by two weeks, primarily because

he had not yet received the search warrant and

affidavit through discovery. Lefler’s motion was

granted, and the pretrial motion deadline was

extended until November 22, 2006.

On November 21, 2006, Lefler filed a motion to

suppress evidence seized as a result of the search and

Cordy’s statements made prior to the search. The

App. 4

court held a suppression hearing in December, and

the motions were subsequently denied. No objections

were filed to the magistrate judge’s Report and

Recommendation, and it was adopted on March 5,

2007 by the district court which then rescheduled

trial for March 27.

Lefler moved to continue the trial for an in-

determinate period of time on March 7, 2007 because

of a conflicting state court trial which had been

previously scheduled. Counsel also informed the court

that he planned to take a “sabbatical” on June 1,

2007. The government did not object to counsel’s

request for a continuance, and the magistrate judge

granted the motion and rescheduled trial for April 24,

2007.

The parties filed a joint motion to continue trial

on March 16, 2007. The district court conducted a

hearing on April 17, 2007 to consider the joint motion.

The government indicated that its forensic analysis

was being hindered by its dependence on a busy

secret service agent and a delay in receiving the

necessary specialized software. It would thus be

unable to complete its analysis until the first or

second week of June. Defense counsel indicated that

he would likely require two weeks to respond to and

analyze the results of the government’s forensic

analysis and determine whether or not he needed to

secure an expert. He also explained that his schedule

presented a number of conflicts because he would be

in Italy from May 18 until June 11, on jury duty in

Arizona from June 22 through July 23, and in New

App. 5

York from September 1 through November 15, 2007.

After considering the time required for forensic

analysis, the court expressed concern about defense

counsel’s scheduling conflicts in this case and others.

Lefler indicated that he had stopped taking new cases

in November of 2006, and the district court warned

that it would not permit further extensions. At the

conclusion of the hearing, the court rescheduled trial

for July 2, 2007.

Lefler filed an array of pretrial motions on May

18, 2007, some five months after the discovery

deadline. He indicated that he had “uncovered new

approaches and theories concerning the government’s

prosecution,” as well as a line of helpful cases

including Ashcroft v. Free Speech Coal., 535 U.S. 234

(2002). The motion sought to extend the motion

deadline, to obtain independent analysis of the evi-

dence seized from Cordy’s residence, to declare 18

U.S.C. § 2252(a)(4)(B) unconstitutional, and to sup-

press compact discs seized from Cordy’s residence

depicting sexual contact between adults and children.

He also requested the government’s designation of its

experts and a Daubert hearing.

Counsel’s motion for independent analysis of

seized physical evidence has particular relevance

because of the Adam Walsh Child Protection and

Safety Act, 18 U.S.C. § 3509(m) (2006). The Act pro-

vides in relevant part:

(1) [A]ny property or material that con-

stitutes child pornography ... shall remain

App. 6

in the care, custody, and control of either the

Government or the court.

(2A) 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, photo-

graph, 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.

(B) [PJroperty 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. . . .

Thus, under ordinary circumstances the defense

would be limited to examining the contraband data in

a government facility. In this case the data was stored

in Omaha, Nebraska where Cordy was indicted.

Defense counsel and Cordy’s expert concluded

that the child pornography could have been placed

onto his computer without his knowledge by means of

a network intrusion or by a previous user. This would

negate liability under the charging statute, and

Lefler sought a forensic analysis of the seized data.

Both the defense and the government indicated at

trial that a thorough analysis of the data for this

purpose would take approximately 35 days. Under

the Adam Walsh Act the defense had access to the

data at the government facility in Omaha, but the

App. 7

defense expert was located in Virginia and claimed

that Cordy would be “bankrupted” if the analysis had

to be done in Omaha. As a result Lefler sought an

order compelling the duplication of the contraband,

relying on United States v. Knellinger, 471 F. Supp. 2d

640, 650 (E.D. Va. 2007) (ordering government to

provide defense with copy of contraband data for

analysis because alternatives were prohibitively

expensive). The government later provided a copy of

the data to Cordy’s defense for review at a govern-

ment facility in Virginia as an accommodation.

The court denied most of the defense motions on

May 22, 2007, saving the motion in limine for later

consideration. In addition to being untimely, the court

found the motions for independent analysis of evi-

dence, Daubert certification, and expert designation

to be procedurally deficient. With respect to the

motion to extend the pretrial motion deadline, the

court noted that it had already expired in November.

The court further explained:

Although defense counsel represents that he

has uncovered “new” theories of defense,

nothing in the motions filed with the Court

indicates that he could not have uncovered

these theories of defense prior to the

expiration of the pretrial motion deadline. As

* It is unclear why counsel! did not simply seek an order

compelling the government to provide access to the data at a

government facility in Virginia. See United States v. Johnson,

456 F. Supp. 2d 1016, 1020 & n.3 (N.D. Iowa 2006).

App. 8

defense counsel candidly stated, he has “no

good reason for not having discovered” the

newly found theories earlier.

On June 18, 2006, the government filed an

unopposed motion to continue trial for three weeks

due to the unavailability of an essential witness. The

magistrate judge granted the government’s request

and rescheduled trial for July 24, 2007. On July 10,

2007, Lefler moved to withdraw as Cordy’s attorney. A

hearing on the motion was set for July 16.

At the July 16 hearing Lefler moved to continue

the trial for an unspecified period of time because

Cordy had fired him. Lefler indicated that Cordy had

retained James Martin Davis as new counsel and

that Davis would be unavailable on July 24, the

scheduled trial date, because he was recovering from

an angioplasty and was unable to prepare for trial on

such short notice. Although Davis appeared at the

hearing, he stated that he had not yet been hired by

Cordy. Lefler also reported that Cordy had spent the

previous month attempting to find a _ different

attorney, only to lose her services at “the eleventh

hour.” Finally, Lefler noted that he had been tardy in

discovering that it was his responsibility to procure

hard drives so that the government could provide a

duplicate of the contraband data for review by the

defense in Virginia.

In considering the motion for continuing trial the

court pointed out that it was being argued only a

week before trial, that many continuances had

App. 9

already been granted in the case, and that only now

was Cordy asking for a delay so that he could retain

new counsel:

Court: [N]low we are a week away from the

trial and Mr. Cordy is asking for new

counsel. And, of course, one concern that I

have is a defendant has the right to the

lawyer of his choice, especially when he’s

paying for that lawyer. But a defendant does

not have a right to a continuance of the case.

And certainly a defendant does not have a

right to switch lawyers at the last minute in

order to obtain a continuance of the case. So,

Mr. Cordy, what is it, now a week before the

trial of this case, that causes you to be so

dissatisfied with Mr. Lefler’s services that

you believe that he can’t represent you?

Cordy: The main issue is ... he hasn’t got

the evidence that my expert has requested

fast enough to where we could build a de-

fense....

Court: Well now, you were here when [the

government] was explaining what the delay

was and that delay really wasn’t of any fault

of Mr. Lefler’s.

Cordy: [Wlell, there was an incident where

my expert asked for some information back

in [April] and we never got that information

from the prosecutor.... And it just doesn’t

seem like we have any time to build any kind

of a defense. Plus, the matter of some of

these motions that he filed and that were

App. 10

denied, I just started losing confidence in

him.

Court: It sounds to me like your frustration

is more with the government and the court

than with Mr. Lefler. I haven't heard you say

one thing that Mr. Lefler has done wrong.

Later in the hearing, Lefler explained that Cordy’s

frustration with him stemmed primarily from the fact

that he had been unable to provide the defense expert

with timely access to the data. He also stated that his

client’s dissatisfaction had been developing for a

“while” and was based in part on his late discovery of

a line of relevant cases.

The court denied the motion for a continuance,

explaining:

[FjJrankly I have not heard anything that

persuades me that Mr. Lefler cannot do a

very fine job representing the defendant in

this case. Mr. Lefler is a very experienced

criminal trial lawyer. He is fully capable of

trying this case. And what I’m hearing is

simply that the defendant has some frus-

tration with the progress of the case, and

perhaps with the court’s rulings or the way

that discovery has proceeded and _ the

response of the government. But that’s not

Mr. Lefler’s fault. I don’t see that Mr. Lefler

has in any way failed to provide professional

representation for his client in this case.

On July 24 just prior to the commencement of

trial, Cordy was rearraigned and informed that he

App. 11

faced a maximum sentence of ten rather than five

years. Lefler argued that Cordy “would have eval-

uated differently some of the plea negotiations” had

he been aware of the length of sentence he faced. It is

not clear from the record when Cordy first learned of

this mistake. We note, however, that the prosecution

asserted at rearraignment that the parties had

discussed a plea agreement of 63 months at some

previous point in time.

At trial the government called Brent Morral, the

ICE case agent responsible for the Cordy investiga-

tion, who testified that shortly after he began

questioning Cordy about credit card transactions the

defendant asked whether the investigation was

leading toward child pornography. William Hugel-

man, a Secret Service agent and computer forensic

investigator, also testified to finding approximately

6,000 images and 100 videos containing child porno-

graphy on Cordy’s hard drives. A portion of these

images and videos was entered into evidence at trial.

Hugelman testified that he had checked the hard

drives for viruses and malicious software, but had not

found evidence of either. Hugelman also stated that,

considering the sheer quantity of child pornography

he had found and the fact that it was organized in a

clear fashion, he did not believe that network

intrusion was responsible for the images on Cordy’s

computers. Finally, the government called a number

of police officers who had previously been involved

with child pornography investigations. These officers

App. 12

confirmed that the images entered into evidence

depicted real, rather than virtual, children.

The defense called only two witnesses — Cordy’s

wife and his defense expert, Steven Moshlak.

Moshlak testified that the government’s data analysis

was deficient and did not reliably indicate whether

Cordy was responsible for or had knowledge of the

contraband on his computer. Moshlak also stated that

had he been able to spend approximately 35 days

examining a duplicate of the raw data, he could have

definitively determined whether Cordy had accessed

child pornography on his computer. Moshlak ex-

plained that he could have accomplished this through

searching for evidence of network intrusion, viruses,

and spyware and through examining internet usage,

email correspondence, and deleted data. Since the

government had not provided him with a duplicate of

the raw data but only a “working copy,” he was

unable to conduct such a search he said. Moreover,

Moshlak only received a copy of the data approx-

imately one week before trial because counsel had not

timely filed a pretrial mction for it and was therefore

unable to determine whether Cordy was responsible

for or had knowledge of the pornography on his

computer.

At the conclusion of trial, the jury found Cordy

guilty of violating 18 U.S.C. § 2252(a)(4)(B). Prior to

adjourning until the sentencing hearing, the court

spoke directly to Cordy about his counsel: “[WJhether

you plan to get different counsel or not ... it’s my

observation that Mr. Lefler did an outstanding job

App. 13

providing you with representation throughout these

proceedings.”

il.

We review the denial of a request for a continu-

ance in order to substitute counsel for an abuse of

discretion. United States v. Whitehead, 487 F.3d 1068,

1071 (8th Cir.), cert. dented, 128 S. Ct. 693 (2007).

The Sixth Amendment right to counsel of one’s

choice “commands, not that a trial be fair, but that a

particular guarantee of fairness be provided — to wit,

that the accused be defended by the counsel he

believes to be best.” United States v. Gonzalez-Lopez,

548 U.S. 140, 146 (2006). This right “derives from a

defendant’s right to determine the type of defense he

wishes to present.” United States v. Gonzalez-Lopez,

399 F.3d 924, 928 (8th Cir. 2005), aff’d, 548 U.S. 140

(2006). “Lawyers are not fungible, and often the most

important decision a defendant makes ‘n shaping his

defense is his selection of an attorney.” Jd. (quoting

United States v. Mendoza-Salgado, 964 F.2d 993,

1015-16 (10th Cir. 1992)). Individual attorneys may

pursue very different litigation strategies with re-

spect to plea bargaining, discovery, development of

the theory of defense, and witness presentation.

Gonzalez-Lopez, 548 U.S. at 150. Since the wisdom of

a particular choice by defense counsel may very well

affect the outcome of a case, “[a]ls a general rule,

defendants are fre: to employ counsel of their own

choice.” Gonzalez-Lopez, 399 F.3d at 928 (quoting

App. 14

United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir.

1985)).

That right is not absolute, however. United States

v. Vallery, 108 F.3d 155, 157 (8th Cir. 1997). It is

instead “circumscribed in several important respects.”

Wheat v. United States, 486 U.S. 153, 159 (1988). A

defendant’s “right to choice of counsel must not

obstruct orderly judicial procedure or deprive courts

of their inherent power to control the administration

of justice.” Vallery, 108 F.3d at 157. This is because

“{t]rial judges necessarily require a great deal of

latitude in scheduling trials.” Morris v. Slappy, 461

U.S. 1, 11 (1983). The efficient operation of our

judicial system depends upon gathering together a

great number of citizens — lawyers, witnesses, jurors,

and court personnel, for example ~— at a particular

time and place. /d.

The grant of a continuance in order to substitute

counsel has an impact on the court’s calendar as well

as all parties involved. For that reason, “trial courts

are vested with broad discretion in matters of

continuances” for the purpose of substituting counsel.

United States v. Larson, 760 F.2d 852, 856 (8th Cir.

1985). In exercising its discretion, “the district court

must carefully balance the defendant’s right to be

represented by the counsel of his choice against the

court’s interest in ‘the orderly administration of

justice.’” Gonzalez-Lopez, 399 F.3d at 929 (quoting

Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.

1984)).

App. 15

Among the factors for the trial court to balance in

considering a motion for continuance are:

{1) the nature of the case and whether the

parties have been allowed adequate timing

for trial preparation;

(2) the diligence of the party requesting the

continuance;

(3) the conduct of the opposing party and

whether a lack of cooperation has contri-

buted te the need for a continuance;

(4) the effect of the continuance and

whether a delay will seriously disadvantage

either party; and

(5) the asserted need for the continuance,

with weight to be given to sudden exigencies

and unforeseen circumstances.

United States v. Issaghoolian, 42 F.3d 1175, 1177-78

(8th Cir. 1994) (citing United States v. Coronel-

Quintana, 752 F.2d 1284, 1287 (8th Cir. 1985)).

Even though Cordy’s case had complexities

because of the nature of the evidence involved and

the theory the defense sought to present, we conclude

that the defense had adequate time for trial

preparation. Counsel was retained in October of 2006

and trial commenced approximately ten months later

in July of 2007. From the record it appears that

counsel had access to the computer data needed to

prepare the defense from at least the beginning of

May until trial commenced at the end of July.

App. 16

Cordy was not diligent in requesting a con-

tinuance for the purposes of substituting counsel.

Cordy stated at the July 16, 2007 hearing that his

discomfort with counsel stemmed from his failure to

provide the defense expert earlier access to the data

and to file his motions at an earlier point. It appears

from the record, however, that Cordy should have

been aware of these alleged shortcomings by the end

of May, yet he waited until July 16, 2007 to seek a

continuance in order to substitute counsel. Further-

more, at the April 17, 2007 hearing, Cordy was put on

notice that counsel was occupied with other matters

that could potentially limit the time he had available

for defense preparation.

Although Cordy was dissatisfied that his defense

expert did not have access to the data until shortly

before trial, the prosecution was not at fault. By

virtue of the Adam Walsh Act, the data was required

to remain in the custody of the government Although

counsel might have obtained earlier and more cost

effective access by the defense expert through pretrial

motions, Cordy has not established that the grant of a

trial continuance would have provided him with a

successful defense. Moreover, a continuance on the

eve of trial can exact significant costs on the

administration and case management of a federal

court, members of the jury pool, witnesses, and other

litigants affected by the postponement.

Finally, with due consideration for sudden exi-

gencies and unforeseen circumstances, the asserted

need for the continuance cautioned against the grant.

App. 17

Cordy sought a continuance in order to facilitate the

substitution of counsel, but his dissatisfaction with

counsel was neither sudden nor unforeseeable unlike

the abrupt deterioration in counsel’s health, for ex-

ample, or the unexpected disappearance of a witness.

It was also not clear when Davis would be ready to

try the case were he to be retained.

We conclude that the denial of Cordy’s motion for

a continuance of trial in order to facilitate the sub-

stitution of counsel was not an abuse of discretion.

Although Cordy may have been frustrated with

Lefler’s performance, “last minute requests to sub-

stitute counsel must not be allowed to become a tactic

for delay.” United States v. Swinney, 970 F.2d 494, 499

(8th Cir. 1992). Cordy’s request to sever a ten month

professional relationship two weeks before trial sug-

gests that a desire for delay was the primary factor

motivating the request. Although it would have been

helpful if the district court had conducted a more

thorough balancing test on the record, a trial court’s

“discretion is at its zenith ... ” when the defendant

endeavors to replace counsel shortly before trial.

Whitehead, 487 F.3d at 1071.

Cordy also raises an additional argument related

to his counsel, claiming that he was denied his Sixth

Amendment right to the effective assistance of coun-

sel. Absent circumstances not presented by this case,

a claim of ineffective assistance of counsel is not

“cognizable on direct appeal....” United States v.

Ramon-Rodriguez, 492 F.3d 930, 941 (8th Cir.)

(quotation marks omitted), cert. denied, 128 S. Ct.

App. 18

938 (2007). Any such claim Cordy wishes to make

must therefore be brought in a 28 U.S.C. § 2255

action. See United States v. Hernandez, 281 F.3d 746,

749 (8th Cir. 2002).

ITI.

Cordy finally contends that the district court

erred in applying a five level sentencing guideline

enhancement for possessing 600 or more images con-

stituting child pornography under United States

Sentencing Guidelines Manual § 2G2.2(b\(7D) (2006)

because the underlying facts were not determined by

a jury. We review the district court’s construction and

application of the sentencing guidelines de novo, and

we review its factual findings regarding enhance-

ments for clear error. United States v. Wintermute,

443 F.3d 993, 1004 (8th Cir. 2006).

Section 2G2.2(b)(7)(D) provides for a five level en-

hancement if the child pornography offense involves

600 or more “images.” The guideline commentary

defines images as “any visual depiction ... that con-

stitutes child pornography... .” § 2G2.2 cmt. n.4(A).

Accordingly, to impose such a five level sentencing

enhancement, the district court was required to find

by a preponderance of the evidence that Cordy pos-

sessed 600 or more images constituting child porno-

graphy. Based on the record before us, we are

satisfied that the district court made this finding. The

sentencing court could not rely on the presentence

report for findings because Cordy had objected to

App. 19

them. United States v. Poor Bear, 359 F.3d 1038, 1041

(8th Cir. 2004). At the sentencing hearing, however,

Agent Morral testified that he had examined approxi-

mately 6000 images found on Cordy’s hard drives and

that in his “opinion, the majority of those [images]

portrayed child pornography.” A district court can

“take account of factual matters not determined by a

jury and ... increase the sentence in consequence.”

Rita v. United States, 127 S. Ct. 2456, 2465-66 (2007).

Even though the sentencing discussion sometimes

lacked precision, we conclude there was sufficient

evidence in the record to support the district court’s

ultimate finding and that it was not clearly

erroneous.

IV.

Accordingly, we affirm Cordy’s conviction and

sentence.

App. 20

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES )

OF AMERICA, )

Plaintiff, CASE NO. 8:06CR321

vs. ) MEMORANDUM

) AND ORDER

RALPH CORDY, )

Defendant. )

MEMORANDUM AND ORDER

This matter is before the Court on the following

motions filed by the Defendant, Ralph Cordy: to

extend the time for the filing of pretrial motions

(Filing No. 33) supported by a brief (Filing No. 34); in

limine (Filing No. 35); to produce independent

analysis of physical evidence and protective order

(Filing No. 36) supported by a brief (Filing No. 37);

for a Daubert hearing (Filing No. 38); for designation

of government experts (Filing No. 39); and for an

order declaring 18 U.S.C. § 2252(a)(4)(B) unconstitu-

tional (Filing No. 40).’

' The motions appearing as Filing Nos. 38, 39, and 40 were

filed by counsel as “briefs” rather than “motions,” and therefore

they are not reflected in the Court’s electronic filing system as

“motions.” Nevertheless, the documents are treated as “mo-

tions.”

App. 21

FACTUAL BACKGROUND

On October 16, 2006, Cordy was charged in a

one-count Indictment with possession of child

pornography pursuant to 18 U.S.C. § 2252(a)(4)(B).

(Filing No. 1.) At Cordy’s initial appearance on

October 18, 2006, the pretrial motion deadline was

scheduled for November 7, 2006. (Filing No. 6.) Cordy

was released on bond. (Filing No. 7.) On November 8,

2006, the Court granted Cordy’s motion to extend the

pretrial motion deadline until November 22, 2006.

Cordy’s counsel requested the continuance for the

following reasons: counsel had depositions scheduled

in a state court case; discovery was provided one day

late in the instant case; and a search warrant and

search warrant affidavit were not originally included

with the discovery in this case. (Filing No. 10.) On

November 21, 2006, Cordy filed a motion to suppress.

(Filing No. 12.) The motion was heard, and on

February 8, 2007, Magistrate Judge Thomas D.

Thalken issued his report and recommendation deny-

ing the motion to suppress. (Filing No. 22.) No objec-

tions were filed to the report and recommendation,

and on March 5, 2007, this Court adopted the report

and recommendation. (Filing No. 23.)

Also on March 5, 2007, trial was scheduled for

March 27, 2007. (Filing No. 24.) On March 7, 2007,

Cordy moved to continue the trial date because of a

state court trial and a sabbatical that counsel would

“hopefully” be taking beginning June 1, 2007. (Filing

No. 26.) The request was granted, and trial was re-

scheduled to April 24, 2007. (Filing No. 27.) The

App. 22

parties then filed a joint motion to continue the trial

date, stating that discovery was not complete and

additional forensic information was being sought by

both parties. Defense counsel stated that he would be

unavailable on the following dates: May 18, 2007,

though June 11, 2007 (out of the country); June 15,

2007 (state court sentencing); June 22, 2007, possibly

thorough July 23, 2007 (Gury duty in Scottsdale,

Arizona); and September 1, 2007, through November

15, 2007 (in New York City). (Filing No. 29.) On April

17, 2007, a hearing was held with respect to the joint

motion. (Filing No. 32.) At the hearing, the Court

learned that the government was awaiting the results

of an investigation expected no later than June 10,

2007. The government was awaiting receipt of a

computer program that would determine whether a

virus might have inserted child pornographic images

into Cordy’s computer without his knowledge. This

investigation was prompted by the possibility that

the defense would obtain an expert to testify that the

images in question were unknowingly placed in

Cordy’s computer. At the hearing, in light of this

information, the Court granted the parties’ motion to

continue the trial date. The trial was rescheduled to

July 2, 2007.

On May 18, 2007, defense counsel filed the

motions now before the Court.

App. 23

DISCUSSION

Motion to Extend (Filing No. 33)

The motion requests an additional week’ to file

pretrial motions because defense counsel has “un-

covered new approaches and theories concerning the

government’s prosecution of cases involving digital

imagery of children.” The motions sought to be filed

are the following:

— a motion to declare the statute unconsti-

tutional for vagueness and overbreadth;*

— a motion in limine regarding CDs found

at the Defendant’s home during the

search werrant;’

— a request fur a “Knellinger protective

order” to allow Defendant’s expert access

to computers and related equipment

taken during execution of the search

warrant;

— arequest for a Daubert hearing;’

* Apparently, defense counsel is unaware that the pretrial

motion deadline expired on November 22, 2006.

* This motion has been filed. (Filing No. 40.)

* This motion has been filed. (Filing No. 35.)

* This motion has been filed. (Filing No. 38.)

App. 24

— arequest for the government’s experts, if

any; and

— if necessary, a motion to continue trial.

(Filing No. 33.)

Regarding the timing of any hearing that this

Court might have sct on the motion, defense counsel

represented in the motion that he is unavailable on

the following dates: from May 18, 2007, through June

10, 2007 (in Italy); on June 25-26, 2007 Gury duty in

Scottsdale, Arizona); and June 27 through 28, 2007

(oral argument in the state supreme court).

The pretrial motion deadline of November 22,

2006 was not extended. (Filing No. 10.) The order

continuing trial did not continue the pretrial motion

deadline. (Filing No. 27.) The motion to extend the

pretrial motion deadline now before the Court was

filed on May 18, 2007, almost six months after the

deadline for filing pretrial motions expired. (Filing

No. 33.)

The applicable local rule of practice provides that

a pretrial motion deadline “shall be strictly enforced

unless the court grants an extension of time.”

NECrimR 12.3(a). Furthermore, the rule states that

“[albsent good cause shown, a motion for an extension

of time to file pretrial motions must be made within

the time set for the filing of pretrial motions. Motions

° This motion has keen filed. (Filing No. 39.)

App. 25

for extensions of time two file pretrial motions will be

granted only upon a showing of good cause.” Jd.

The motion to extend the pretrial motion dead-

line is denied as untimely, and the motion fails to

show good cause for allowing the request outside of

the period allowed for filing pretrial motions. More-

over, even if the Court were to entertain the merits,

the motion fails to set forth good cause for an

extension. Although defense counsel represents that

he has uncovered “new” theories of defense, nothing

in the motions filed with the Court indicates that he

could not have uncovered these theories of defense

prior to the expiration of the pretrial motion deadline.

As defense counsel candidly stated, he has “no good

reason for not having discovered” the newly found

theories earlier. For example, defense counsel only

recently discovered Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) and Free Speech Coalition uv.

Reno, 198 F.3d 1083 (9th Cir. 1999).’ Defense counsel

also cites to a more recent case, United States v.

Knellinger, 471 F. Supp. 2d 640 (E.D. Va. 2007). In

Knwellinger, the court addressed i8 U.S.C. § 3509(m),°

"In both cases, §§ 2256(8)(B) and 2256(8\D) were found

to be unconstitutionally vague and overbroad. Ashcroft, 535 U.S.

at 253: Reno, 198 F.3d at 1C97. Neither decision addressed

§ 2252'a)(4)(B), the statute that Cordy argues is unconstitu-

tional. (ling No. 40.)

* 18 U.S.C. 3509(m) prohibits the reproduction of child

pornography. Specifically, § 3509(m) provides that in criminal

proceedings child pornographic images shall remain in the

government’s custody notwithstanding Federal Rule of Criminal

(Continued on following page)

App. 26

enacted as part of the Adam Walsh Child Protection

and Safety Act, Pub. L. No. 109-248, 120 Stat. 587

(2006), which was signed into law on July 27, 2006.

Section 3509(m) prohibits the reproduction of child

pornography. Specifically, § 3509(m) provides that in

criminal proceedings child pornographic images shall

remain in the government’s custody notwithstanding

Federal Rule of Criminal Procedure 16 discoverv

procedures, provided that the material is reasonabiy

available to the defense. “Reasonable availability” is

defined as “ample opportunity for the 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.” 18

U.S.C. § 3509(m)(2)(B). The court found § 3509(m)

constitutional on its face. Id. at 649-50. The court

found the as-applied challenge moot, because in light

of unrebutted testimony indicating the need for a

copy of the images to be supplied to the defense the

court ordered pursuant to § 3509(m)(2)(A) that a copy

be provided. Id. at 645-50.

Although defense counsel rests “new” defense

tactics on Knellinger, the motion tu extend is

Procedure 16 discovery procedures, provided that the material is

reasonably available to the defense. “Reasonable availability” is

defined as “ample opportunity for the 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.” 18 U.S.C. § 3509(m)(2)B).

App. 27

nevertheless denied. The Anellinger case was dis-

tinguished in United States v. Renshaw, No. 1:05-CR-

00165, 2007 WL 710239 (S.D. Ohio Mar. 6, 2007) as a

case involving a situation in which the evidence

showed that the defendant would have been “forced to

incur cost-prohibitive expenses to transport expert

equipment to a government facility,” and therefore

the government could not provide the required ample

opportunity for examination of the evidence. Jd. at *1.

The Renshaw court concluded that a similar record

was not present in that case, and therefore the court

could not conclude that § 3509(m) was unconstitu-

tional on its face or as applied. /d.; Accord United

States v. Sturm, No. 06-CR-00342-LTB, 2007 WL

1453108, at *6 (D. Colo. May 17, 2007); United States

v. O’Rourke, 470 F. Supp. 2d 1049, 1061-63 (D. Ariz.

2007); United States v. Johnson, 456 F. Supp. 2d

1016, 1019-20 (N.D. Ia. 2006).

Lastly, the Defendant refers to an argument that

Cordy cannot be expected to know the difference

between a digitally altered photograph and an actual

child. (Filing No. 34.) This defense is not a novel one.

See United States v. Horn, 187 F.3d 781, 789 (8th Cir.

1999) (stating that the element of knowledge under

§ 2252(a)(4)(B) is satisfied by evidence showing that a

defendant knew or had reason to know that the

images include minors).

Fo: the reasons discussed, the motion to extend

is denied.

App. 28

In Limine (Filing No. 35)

The motion in limine was tiled prematurely. The

Court’s progression order requires that motions in

limine be filed no earlier than 14 days prior to trial

and no later than two business days before trial.

(Filing No. 6, 7 4.) However, the motion in limine will

be held in abeyance and decided in chambers at the

pretrial meeting to be held at 8:30 a.m. on the first

day of trial.

Independent Analysis of Physical Evidence and

Protective Order

The motion for independent analysis of physical

evidence and protective order requests, pursuant to

the Defendant’s Fifth Amendment rights to due proc-

ess and a fair trial and Sixth Amendment right to

counsel, production of the images to the defense

“without a case agent ‘babysitting’ the defense.”

(Filing Nos. 36, 37.) This motion is based on the

Knellinger case discussed above in conjunction with

the Defendant’s motion to extend the pretrial motion

deadline. For the reasons discussed in that porvion of

this memorandum and order, including the lack of

any showing in Cerdy’s case that the material in

question is not reasonably available,’ the motion for

* Similarly, the defense offers no showing why the evidence

cannot be viewed in the company of a government agent or

attorney thereby avoiding chain of custody difficulties.

App. 29

independent examination of physical evidence and

protective order is denied.

Daubert Hearing

The Daubert motion is unspecific, stating only

that the defense wishes to “determine whether or not

the government’s experts meet the Daubert require-

ments.” (Filing No. 38.) Defense counsel then re-

quests that the motion be “treated as its brief,”

because the motion does not contain “any unusual

aspects.” (/d.)

The motion is denied. The motion is untimely.

NECrimR 12.3(a). Moreover, the motion contains no

specifics related to this case. Finally, the motion is

unsupported by a brief as required by the Court’s

progression order at Filing No. 6, { 4 and NECrimR

12.3(b)(1), and therefore is deemed waived.” The De-

fendant’s request essentially to suspend the require-

ment of an accompanying brief is denied.

Designation of Government’s Experts

Without discussion, the Defendant moves for an

order requiring the government to designate its

expert witnesses by a date certain. (Filing No. 39.)

’° A motion may be deemed abandoned when not accom-

panied by a brief. NECrimR 12.3(b)(1).

App. 30

The record does not indicate whether the De-

fendant requested Rule 16 discovery. However, there

is an open file policy (Filing No. 7) and the govern-

ment is under a continuing duty to disclose pursuant

to Federal Rule of Criminal Procedure 16(c). Finally,

the Defendant has not complied with NECrimR

12.3(b)(3) requiring: a statement verifying that de-

fense counsel conferred with counsel for the govern-

ment in a good faith effort to resolve the issue; and a

statement that the parties have not been able to

resolve the matter. The showing must include the

time, date and place of any such communications and

the names of persons participating in those dis-

cussions. NECrimR 12.3(b)(3).

CONCLUSION

For the reasons discussed, the Defendant’s mo-

tion in limine is held in abeyance pending the pretrial

meeting. Otherwise, the Defendant’s motions are

denied.

IT IS ORDERED:

1. The Defendant’s motion in limine (Filing No.

35) is held in abeyance as described in the memo-

randum; and

2. The following motions filed by the Defendant

are denied: motion to extend time (Filing No. 33);

motion to produce independent analysis of physical

evidence and protective order (Filing No. 36); mo-

tion for a Daubert hearing (Filing No. 38); motion

App. 31

for designation of government experts (Filing No.

39); and motion for an order declaring 18 U.S.C.

§ 2252(a)(4)(B) unconstitutional (Filing No. 40).

DATED this 22nd day of May, 2007.

BY THE COURT:

s/Laurie Smith Camp

United States District Judge

App. 32

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NEBRASKA

UNITED STATES Case Number

OF AMERICA 8:06C R321-001

etatmntess USM Number 21164-

V. 047

RALPH CORDY JAMES M. DAVIS

rns Defendant’s Attorney

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After

November 1, 1987)

THE Defendant, was found guilty on count I of the

Indictment after a plea of not guilty on July 26, 2007.

ACCORDINGLY, the Court has adjudicated that the

Defendant is guilty of the following offense:

Title, Section & Date Offense Count

Nature of Offense Concluded Number

18:2252(a\'4)(B) POS- _— April 5, 2006 i

SESSION OF CHILD

PORNOGRAPHY

The Defendant is sentenced as provided in pages 2

through 6 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984.

App. 33

Following the imposition of sentence, the Court ad-

vised the Defendant of the right to appeal pursuant to

the provisions of Fed. R. Crim. P. 32 and the provi-

sions of 18 U.S.C. § 3742(a) and that such Notice of

Appeal must be filed with the Clerk of this Court

within ten (10) days of this date.

IT IS ORDERED that the Defendant shall notify the

United States Attorney for this district within 30

days of any change of name, residence, or mailing

address until all fines, restitution, costs and special

assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the Defendant shall

notify the Court and United States attorney of any

material change in the Defendant’s economic circum-

stances.

Date of Imposition of Sentence:

October 30, 2007

s/ Laurie Smith Camp

United States District Judge

November 1, 2007

IMPRISONMENT

The Defendant is hereby committed to the custody of

the United States Bureau of Prisons to be imprisoned

for a term of 108 months.

The Court makes the following recommendations to

the Bureau of Prisons:

App. 34

1. Defendant shall be given credit for time served.

2. That the Defendant participate in the Sex

Offender Treatment Program at FCI Butner, NC,

after treatment is completed the Defendant may

be housed at a facility as close to Omaha, Nebraska

as possible.

The Defendant is remanded to the custody of the

United States Marshal.

ACKNOWLEDGMENT OF RECEIPT

I hereby acknowledge receipt of a copy of this

judgment this __ day of :

Signature of Defendant

RETURN

It is hereby acknowledged that the Defendant was

delivered on the ___ day of : to ;

with a certified copy of this judgment.

UNITED STATES WARDEN

By:

NOTE: The following certificate must also be

completed if the Defendant has not signed the

Acknowledgment of Receipt, above.

App. 35

CERTIFICATE

It is hereby certified that a copy of this judgment was

served upon the Defendant this __ day of :

UNITED STATES WARDEN

By:

SUPERVISED RELEASE

Upon release from imprisonment, the Defendant

shall be on supervised release for a term of 3 years.

The Defendant shall report to the probation office in

the district to which the Defendant is released within

72 hours of release from the custody of the Bureau of

Prisons.

The Defendant shall not commit another federal,

state or local crime.

The Defendant shall not possess a firearm, destruc-

tive device, or any other dangerous weapon.

The Defendant shall not unlawfully possess a con-

trolled substance. The Defendant shall refrain from

any unlawful use of a controlled substance. The

Defendant shall submit to one drug test within 15

days of release from imprisonment and at least two

periodic drug tests thereafter, as determined by the

Court.

If the judgment imposes a fine or restitution, it is a

condition of supervised release that the Defendant

App. 36

pay in accordance with the Schedule of Payments

sheet of this judgment.

The Defendant must comply with standard conditions

that have been adopted by this Court as well as with

any additional conditions on the attached page.

STANDARD CONDITIONS OF SUPERVISION

1.

The Defendant shall not leave the judicial

district without the permission of the Court or

probation officer;

The Defendant shall report to the probation

officer and shall submit a truthful and complete

written report within the first five days of each

month;

The Defendant shall answer truthfully all in-

quiries by the probation officer and follow the

instructions of the probation officer;

The Defendant shall support his or her

dependents and meet other family responsi-

bilities;

The Defendant shall work regularly at a lawful

occupation, unless excused by the probation offi-

cer for schooling, training, or other acceptable

reasons;

The Defendant shall notify the probation officer

at least ten days prior to any change in residence

or employment;

The Defendant shall refrain from excessive use of

alcohol and shall not purchase, possess, use,

10.

11.

12.

13.

App..37

distribute, or administer any controlled sub-

stance or any paraphernalia related to any con-

trolled substances, except as prescribed by a

physician;

The Defendant shall not frequent places where

controlled substances are illegally sold, used,

distributed, or administered;

The Defendant shall not associate with any

persons engaged in criminal activity and shall

not associate with any person convicted of a

felony, unless granted permission to do so by the

probation officer;

The Defendant shall permit a probation officer to

visit him or her at any time at home or elsewhere

and shall permit confiscation of any contraband

observed in plain view of the probation officer;

The Defendant shall notify the probation officer

within seventy-two hours of being arrested or

questioned by a law enforcement officer;

The Defendant shall not enter into any agree-

ment to act as an informer or a special agent of a

law enforcement agency without the permission

of the Court;

As directed by the probation officer, the Defen-

dant shall notify third parties of risks that may

be occasioned by the Defendant’s criminal record

or personal history or characteristics and shall

permit the probation officer to make such

notifications and to confirm the Defendant’s

compliance with such notification requirement.

App. 38

SPECIAL CONDITIONS OF SUPERVISION

The Defendant shall cooperate in the collection of

DNA as directed by the probation officer, pur-

suant to the Public Law 108-405 (Revised DNA

Collection Requirements Under the Justice for

All Act of 2004), if such sample was not collected

during imprisonment.

The Defendant shall submit his or her person,

residence, office, or vehicle to a search conducted

by a United States Probation Officer at any time;

failure to submit to a search may be grounds for

revocation; the Defendant shall warn any other

residents that the premises may be subject to

searches pursuant to this condition.

The Defendant shall have no contact, nor reside

with children under the age of 18, including their

own children, unless approved in advance and in

writing by the probation officer in consultation

with the treatment providers. The Defendant

must report all incidental contact with children

to the probation officer and the treatment pro-

vider.

The Defendant shall not access or come within

500 feet of schools, school yards, parks, arcades,

playgrounds, amusement parks, or other places

used primarily by children under the age of 18

unless approved in advance and in writing by the

probation officer.

The Defendant shall not be employed in or

participate in any volunteer activity that involves

contact with children under the age of 18, except

10.

App. 39

under circumstances approved in advance and in

writing by the probation officer.

The Defendant shall not access, view or possess

any pornographic sexually oriented or sexually

stimulating materials, including visual, auditory,

telephonic, or electronic media, computer pro-

grams or services. The Defendant shall not

patronize any place where such material or

entertainment is available.

The Defendant must have their residence and

living situation approved in advance by the

probation officer.

The Defendant shall sign releases of information

to allow all involved in the assessment, treat-

ment, and behavioral monitoring of the Defen-

dant to communicate and share documentation

with each other.

The Defendant shall register as a sex offender in

accordance with state and federal law and in

their county of residence. The Defendant shall

not move to a different address without prior

approval of the probation officer.

The Defendant shall successfully complete any

sex offender diagnostic evaluations, treatment or

counseling programs, and polygraph examina‘ions

as directed by the probation officer. Reports per-

taining to sex offender assessments, treatments,

and polygraph examinations shall be provided to

the probation officer. Based on the Defendant’s

ability to pay, the Defendant shall pay the cost of

diagnostic evaluations, treatment or counseling

11.

12.

13.

14.

15.

16.

App. 40

programs, and polygraph examinations in an

amount determined by the probation officer.

The Defendant shall participate in a victim

awareness program as directed by the probation

officer. Based on the Defendant’s ability to pay,

the Defendant shall pay for the costs of the

program in an amount determined by the

probation officer.

The offender shall submit/consent to quarterly

searches of all electronic media as directed by the

USPO with or without the cooperation of law

enforcement.

The Defendant is prohibited from using or having

access to any electronic media that has Internet

service or phe.ography capability. The Defendant

will sign any and all releases of information as it

relates to cel] phone carriers.

The Defendant shall attend, successfully com-

plete, and pay for any mental health diagnostic

evaluations and treatment or counseling pro-

crams as directed by the probation officer.

The Defendant shall provide the probation officer

with access to any requested financial informa-

tion.

The requirement of 18 U.S.C. § 3583(d) regarding

drug testing within fifteen (15) days of release on

supervised release and at least two (2) periodic

drug tests thereafter, is suspended until further

order of the Court because the Presentence

Investigation Report on the Defendant and other

reliable sentencing information indicates a low

risk of future substance abuse by the Defendant.

App. 41

17. The Defendant shall report to the Supervision

Unit of the U.S. Probation Office for the District

of Nebraska between the hours of 8:00 a.m. and

4:30 p.m., 111 South 18th Plaza, Suite C79,

Omaha, Nebraska, (402) 661-7555, within

seventy-two (72) hours of release from con-

finement, and, thereafter, as directed by the

probation officer.

CRIMINAL MONETARY PENALTIES

The Defendant shall pay the following total

criminal monetary penalties in accordance with the

schedule of payments set forth in this )udgment.

Total Assessment Total Fine Total Restitution

$100.00

The Court has determined that the Defendant does

not have the ability to pay interest and it is ordered

that:

interest requirement is waived.

FINE

No fine imposed.

RESTITUTION

No restitution was ordered.

App. 42

SCHEDULE OF PAYMENTS

The Defendani shall pay the special assessment in

the amount of $100.00.

The criminal monetar. penalty is due in full on the

date of the judgment. The Defendant is obligated to

pay said sum immediately if he or she has the ca-

pacity to do so. The United States of America may

institute civil collection proceedings at any time to

satisfy all or any portion of the criminal monetary

penalty.

Without limiting the foregoing, and during the Defen-

dant’s term of incarceration, the Defendant shall par-

ticipate in the Bureau of Prisons’ Financial Inmate

Responsibility Program. Using such Program, the

Defendant shall pay 50% of the available inmate

institutional funds per quarter towards the criminal

monetary penalty.

Without limiting the foregoing, and following release

from prison, the Defendant shall make payments to

satisfy the criminal monetary penalty in the following

manner: (a) monthly installments of $100 or 3% of

the Defendant’s gross income, whichever is greater;

(b) the first payment shall commence 30 days

following the Defendant’s discharge from incarcera-

tion, and continue until the criminal monetary

penalty is paid in full; and (c) the Defendant shall be

responsible for providing proof of payment to the

probation officer as directed.

App. 43

Any payments made on the outstanding criminal

monetary penalty shall be applied in the following

order of priority: special assessment; restitution; fine;

and other penalties. Unless otherwise specifically

ordered, all criminal monetary penalty payments,

except those payments made through the Federa!

Bureau of Prisons’ Inmate Financial Responsibility

Program, shall be made to the clerk of the Court.

Unless otherwise specifically ordered, interest shall

not accrue on the criminal monetary penalty.

All financial penalty payments are to be made to the

Clerk of Court for the District of Nebraska, 111 S.

18th Plaza, Suite 1152, Omaha, NE 68102-1322.

The Defendant shall receive credit for all payments

previously made toward any criminal monetary pen-

alties imposed.

The Defendant shall inform the probation officer of

any change in his or her economic circumstarces

affecting the ability to make monthly installments, or

increase the monthly payment amount, as ordered by

the Court.

The Defendant is restrained from transferring any

real or personal property, vuless it is necessary to liq-

uidate and apply the proceeds of such property as full

or partial payment of the criminal monetary penalty.

App. 44

CLERK’S OFFICE USE ONLY:

ECF DOCUMENT

I hereby attest and certify this

is a printed copy of a document

which was electronically filed

with the United States District

Court for the District of

Nebraska.

Date Filed:

DENISE M. LUCKS, CLERK

By

Deputy Clerk

App. 45

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF ] 8:06CR 321

AMERICA, ]

Plaine | MOTION TO

aun’ 1 WITHDRAW

VS. ]

RALPH CORDY, ]

Defendant. |

COMES NOW, the undersigned and moves the

Court for an order allowing him to withdraw as

attorney for the reason that Defendant has fired him

and has hired James Martin Davis. If necessary, the

undersigned is requesting a hearing.

RALPH CORDY, Defendant

By s/ Steven Lefler

Steven Lefler, #15434

Lefler Law

Attorney for Defendant

1823 Harney Street, #1018

Omaha, NE 68102

Tele: 402 342-4433

Fax: 402 341-7003

Email: leflerlaw@hotmail.com

App. 46

CERTIFICATE OF SERVICE

I hereby certify that on July ___, 2007, I electron-

ically filed the foregoing with the Clerk of the Court

using the CM/ECF System which will send notifica-

tion of such filing to the following: Mike Norris,

Omaha, Nebraska.

By s/ Steven Lefler .

Steven Lefler, #15434

Lefler Law

Attorney for Defendant

1823 Harney Street, #1018

Omaha, NE 68102

Tele: 402 342-4433

Fax: 402 341-7003

Email: leflerlaw@hotmail.com