     Case: 11-31217   Document: 00511914108    Page: 1   Date Filed: 07/09/2012




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                     Fifth Circuit

                                                                   FILED
                                                                   July 9, 2012
                                  No. 11-31217                    Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellant
v.

GEORGE WILLIAM JARMAN,

                                            Defendant-Appellee



                  Appeal from the United States District Court
                      for the Middle District of Louisiana


Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
        Congress has spoken clearly in favor of protecting victims of child
pornography. See generally Adam Walsh Child Protection and Safety Act of
2006, 42 U.S.C. §§ 16901 et seq. (2008). One aspect of their solicitude is the
statute at issue in this case, 18 U.S.C. § 3509(m), which contains specific
instructions that mandate government retention of child pornography evidence
during criminal proceedings:
             (m) Prohibition on reproduction of child pornography.--

             (1) In any criminal proceeding, any property or material
             that constitutes child pornography (as defined by
             section 2256 of this title) shall remain in the care,
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                                  No. 11-31217

            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
            (as defined by section 2256 of this title), so long as the
            Government makes the property or material reasonably
            available to the defendant.

            (B) For the purposes of subparagraph (A), property or
            material shall be deemed to be reasonably available to
            the defendant if the Government provides ample
            opportunity for inspection, viewing, and examination at
            a Government facility of the property or 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) (emphases added).         Because third-party child victim
interests are at stake, see New York v. Ferber, 458 U.S. 747, 757-759 (1982),
because Congress’s imperative is clear and indisputable, and because the
government would have no other adequate means to vindicate its interpretation
of the statute, a violation of Congress’s discovery retention directive might well
be amenable to mandamus relief. See United States v. Williams, 400 F.3d 277,
280-81 (5th Cir. 2005). We consider the instant matter under that All Writs Act,
28 U.S.C. § 1651, authority, therefore.
      Section 3509(m)’s retention mandate that child pornography remain in the
government’s possession applies as long as the material is made “reasonably
available” to the defendant for purposes of Federal Rule of Criminal Procedure
16. The statute further states that the material is “reasonably available” at a
government facility as long as the government provides “ample opportunity” for
the defendant to inspect, view, and examine the material.

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                                   No. 11-31217

      The district court in this case found that the government failed to provide
Jarman with ample opportunity to examine the child pornography evidence at
a government facility. In arriving at this factual conclusion, see United States
v. Dartez, 318 F. App’x 308, 310 (5th Cir. 2009) (unpublished) (citing United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)), the district court
reviewed an affidavit in which Jarman’s computer forensics expert attested that
she could not perform all forensic processes because of “time limitations and
restrictions” she encountered. The district court additionally held a one-day
hearing in which Jarman’s expert was the only witness and she testified that she
could not conduct a complete and thorough examination of the hard drives at the
provided government facility. Exercising its discretion, the government did not
cross-examine the expert regarding her assertions relating to inspection of child
pornography evidence in this case, nor did the government call witnesses to
describe the feasibility of a full analysis of the child pornography evidence in this
case at a government facility, or the extensiveness of inspection provisions free
of unnecessary intrusion. See Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).
      In light of the absence of evidence rebutting the affidavit and testimonial
assertions of Jarman’s expert, we cannot conclude that the district court’s factual
determination of no “ample opportunity” at the government facility rose to clear
error, which, we have said, might otherwise justify mandamus relief. See Will
v. United States, 389 U.S. 90, 95 (1967) (“only exceptional circumstances
amounting to a judicial ‘usurpation of power’ will justify the invocation of this
extraordinary remedy”) (citation omitted). We nonetheless emphasize that to
the extent that the district court equated inconvenience to the expert or
complexity of the case with a failure to make child pornography evidence
reasonably available, we reject such rationale. See United States v. Kimbrough,
69 F.3d 723, 731 (5th Cir. 1995). As stated explicitly by Congress, when the
government makes child pornography material available for examination at a

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                                No. 11-31217

government facility, that is reasonable availability, and the only issue to be
resolved pretrial relating to § 3509(m) discovery is whether the government
inspection conditions imposed on a defendant’s access at that facility do not
“provide[] ample opportunity” to inspect, view, or examine the material.
      The district court’s order is AFFIRMED.




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