United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-3538
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Ralph Cordy, *
*
Defendant - Appellant. *
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Submitted: September 26, 2008
Filed: March 25, 2009
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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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 counsel.
Cordy also appeals a sentencing enhancement imposed by the district court.1 We
affirm.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
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 "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.
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Cordy pled not guilty on October 18, 2006. That same day the district court
issued its case management 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 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 indeterminate 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
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11, on jury duty in Arizona from June 22 through July 23, and in New 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 evidence seized
from Cordy's residence, to declare 18 U.S.C. § 2252(a)(4)(B) unconstitutional, and to
suppress 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 provides in relevant part:
(1) [A]ny property or material that constitutes child pornography . . .
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 defendant to copy, photograph, duplicate, or otherwise reproduce any
property or material that constitutes child pornography . . . so long as the
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Government makes the property or material reasonably available to the
defendant.
(B) [P]roperty 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 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).2 The
government later provided a copy of the data to Cordy's defense for review at a
government 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
2
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).
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found the motions for independent analysis of evidence, 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 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.
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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 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]ow 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 defense . . . .
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: [W]ell, 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 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
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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:
[F]rankly 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 frustration 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 faced a maximum sentence of ten rather than five years. Lefler
argued that Cordy "would have evaluated 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 investigation, 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 Hugelman, a Secret Service agent and
computer forensic investigator, also testified to finding approximately 6,000 images
and 100 videos containing child pornography 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
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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
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 explained 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 approximately one week before trial because counsel had not timely filed a
pretrial motion 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: "[W]hether you plan to get different counsel or
not . . . it's my observation that Mr. Lefler did an outstanding job providing you with
representation throughout these proceedings."
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II.
We review the denial of a request for a continuance in order to substitute
counsel for an abuse of discretion. United States v. Whitehead, 487 F.3d 1068, 1071
(8th Cir.), cert. denied, 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
in shaping his defense is his selection of an attorney." Id. (quoting United States v.
Mendoza-Salgado, 964 F.2d 993, 1015-16 (10th Cir. 1992)). Individual attorneys may
pursue very different litigation strategies with respect 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]s a general rule, defendants are free to employ
counsel of their own choice." Gonzalez-Lopez, 399 F.3d at 928 (quoting 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
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depends upon gathering together a great number of citizens – lawyers, witnesses,
jurors, and court personnel, for example – at a particular time and place. Id.
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)).
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 contributed to 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
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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.
Cordy was not diligent in requesting a continuance 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. Furthermore, 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 exigencies and unforeseen
circumstances, the asserted need for the continuance cautioned against the grant.
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 example, 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.
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We conclude that the denial of Cordy's motion for a continuance of trial in order
to facilitate the substitution of counsel was not an abuse of discretion. Although
Cordy may have been frustrated with Lefler's performance, "last minute requests to
substitute 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 suggests 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 counsel.
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. 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).
III.
Cordy finally contends that the district court erred in applying a five level
sentencing guideline enhancement for possessing 600 or more images constituting
child pornography under United States Sentencing Guidelines Manual §
2G2.2(b)(7)(D) (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 enhancements for
clear error. United States v. Wintermute, 443 F.3d 993, 1004 (8th Cir. 2006).
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Section 2G2.2(b)(7)(D) provides for a five level enhancement if the child
pornography offense involves 600 or more "images." The guideline commentary
defines images as "any visual depiction . . . that constitutes 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 possessed 600 or more images constituting child pornography.
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 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 approximately 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.
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