FILED

NOT FOR PUBLICATION

MAR 01 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10500

Plaintiff-Appellee, D.C. No. 2:12-cr-00401-KJM-1 v.

ALBERT LEE MITCHELL, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Submitted February 15, 2018** San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and NYE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David C. Nye, United States District Judge for the District of Idaho, sitting by designation. Albert Mitchell appeals his conviction for knowingly receiving child

pornography in violation of 18 U.S.C. § 2252(a)(2). We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

1. The Adam Walsh Child Protection and Safety Act, codified at 18 U.S.C.

§ 3509(m), governs the discovery of child pornography in criminal cases. United

States v. Wright, 625 F.3d 583, 614 (9th Cir. 2010), superseded by statute on other

grounds as stated in United States v. Brown, 785 F.3d 1337, 1351 (9th Cir. 2015).

“[U]nder the Adam Walsh Act, ‘a court shall deny, in any criminal proceeding, any

request by the defendant to copy, photograph, duplicate, or otherwise reproduce

any property or material that constitutes child pornography . . . , so long as the

Government makes the property or material reasonably available to the

defendant.’” Id. (emphasis and ellipsis in original) (quoting 18 U.S.C. §

3509(m)(2)(A)). The evidence is “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)(2)(B). Here, despite having practically

unrestricted access to the computer hard drives at a government facility in

Sacramento for nearly 20 months, Mitchell’s defense expert claimed that it was

2 impractical for her to conduct a forensic examination at the government facility

given her other professional responsibilities, because it would be too time

consuming and too expensive. As the court in Wright held, these types of “budget,

timing, and staffing problems” are insufficient to show that the evidence was not

reasonably available. Wright, 625 F.3d at 614–17.

2. The Wright court also rejected the argument that “budget, timing, and

staffing problems” made the application of the Adam Walsh Act unconstitutional

as applied to the defendant in that case. Id. at 614–15, 617. Consequently, we reject

Mitchell’s argument that he was not given meaningful access to the evidence

because of budget and timing issues.

3. It was not plain error for the district court to fail to give a special

instruction regarding third-party culpability. The district court instructed the jury

that “[t]he burden on the government is to prove every element of the charges

beyond a reasonable doubt” and that one of those elements was that Mitchell

“knowingly received a visual depiction” of child pornography. Based on these

instructions, the jury could not find Mitchell guilty if it believed a third-party

downloaded the child pornography without Mitchell’s knowledge. Thus, there was

no need for a special instruction because “the instructions fairly and adequately

cover[ed] the issues presented.” United States v. Del Toro-Barboza, 673 F.3d

3 1136, 1147 (9th Cir. 2012) (quoting United States v. Echeverry, 759 F.2d 1451,

1455 (9th Cir. 1985)).

4. Because the district court did not err, Mitchell’s claim of cumulative error

necessarily fails. See United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir.

2007).

AFFIRMED.

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