Wednesday, November 25, 2015

The Family-owned Business, the FBI Searches and the Motion to Suppress

This post examines a recent decision from the U.S. Court ofAppeals for the 3rd Circuit:  U.S. v. Nagle, 803 F.3d 167 (2015).  The court begins its opinion by explaining how the prosecution arose and what issues are before the Court of Appeals:
Joseph Nagle and Ernest Fink were co-owners and executives of concrete manufacturing and construction businesses. The businesses entered into a relationship with a company owned by a person of Filipino descent. His company would bid for subcontracts on Pennsylvania transportation projects as a disadvantaged business enterprise. If his company won the bid for the subcontract, Nagle and Fink's businesses would perform all of the work.

Fink pled guilty to one count of conspiracy to defraud the United States. Nagle proceeded to trial, where a jury found him guilty of a myriad of charges relating to the scheme. Both defendants filed timely appeals. Nagle challenges the District Court's order denying his motion to suppress electronic evidence discovered during searches of the businesses' offices.
U.S. v. Nagle, supra.  The press release you can find here outlines the charges against Nagle and the facts that, at least allegedly, supported his indictment for, and eventual conviction on, the charges.  It also outlines the penalties the U.S. District Court Judge who had the case imposed on him and on his colleague, Ernest Fink.  And, as the news story you can find here explains, in the opinion this post examines, the Court of Appeals vacated the penalties and remanded the case to the District Court Judge to have them resentenced. 
The Court of Appeals begins its analysis of the case by outlining the background of the prosecution that resulted in these convictions:
The United States Department of Transportation provides funds to state transportation agencies to finance transportation projects. These funds often go towards highway construction, provided through the Federal Highway Administration (`FHWA’), or towards mass transit systems, provided through the Federal Transit Administration (“FTA”). In Pennsylvania, the FHWA provides funds to the Pennsylvania Department of Transportation (PennDOT'), and the FTA provides funds to the Southeastern Pennsylvania Transportation Authority (`SEPTA’).

Federal regulations require states that receive federal transportation funds to set annual goals for participation in transportation construction projects by disadvantaged business enterprises (`DBEs’). 49 C.F.R. § 26.21. A DBE is a for-profit small business that is at least 51% owned by an individual or individuals who are both socially and economically disadvantaged and whose management and daily operations are controlled by one or more of the disadvantaged individuals who own it. 46 C.F.R. § 26.5. A state agency will announce a DBE-participation goal when soliciting bids for a contract, and bids for the contract must show how the contractor will meet the goal. If the prime contractor is not a DBE, this is usually demonstrated by showing that certain subcontractors that will work on a contract are DBEs. States themselves certify businesses as DBEs. 46 C.F.R. § 26.81. A business must be certified as a DBE before it or a prime contractor can rely on its DBE status in bidding for a contract. 46 C.F.R. § 26.81(c).

Most importantly here, in order to count towards a contract's DBE participation, a DBE must `perform[ ] a commercially useful function on [the] contract.’ 46 C.F.R. § 26.55(c). Therefore, a certified DBE whose “role is limited to that of an extra participant in a transaction, contract, or project through which funds are passed in order to obtain the appearance of DBE participation” cannot be counted towards DBE participation. 46 C.F.R. § 26.55(c)(2).
U.S. v. Nagle, supra.  
The court then outlines the events that led to this prosecution:
In the 1950's Joseph Nagle's grandfather established Schuylkill Products Inc. (`SPI’), a Pennsylvania-incorporated S-corporation, in Cressona, Pennsylvania. SPI manufactured concrete beams that are used in highway construction projects. In the 1980's, the Nagle family also established CDS Engineers, Inc. (`CDS’), to operate as a construction company for the concrete beams SPI manufactured. By 2004, CDS was a wholly-owned subsidiary of SPI. Neither SPI nor CDS qualified as or was certified as a DBE in any state.

In 1993, SPI was owned by two people: Nagle's father, Gordon, who owned 50.1% of SPI, and Fink, Nagle's uncle by marriage, who owned 49.9%. Gordon Nagle was the President and Chief Executive Officer of SPI, while Fink served as Vice–President and General Manager of SPI. That year, SPI entered into an arrangement with a company called Marikina Engineers and Construction Corp. (`Marikina’). Marikina was a Connecticut corporation owned and managed by Romeo P. Cruz, an American citizen of Filipino descent. Because Cruz was of Filipino descent, Marikina qualified as a DBE for FHWA and FTA projects. Marikina was certified as a DBE in Connecticut and Pennsylvania, among other states.

SPI and Marikina agreed that Marikina would bid to serve as a subcontractor for PennDOT and SEPTA contracts that had DBE participation requirements. If Marikina was selected for the subcontracts, SPI and CDS would perform all of the work on those contracts. SPI and CDS would pay Marikina a fixed fee for its participation but otherwise keep the profits from the scheme.

In practice, SPI identified subcontracts that SPI and CDS could fulfill, prepared the bid paperwork, and submitted the information to prime contractors in Marikina's name. SPI used stationery and email addresses bearing Marikina's name to create this correspondence. It also used Marikina's log-in information to access PennDOT's electronic contract management system. CDS employees who performed construction work on site used vehicles with magnetic placards of Marikina's logo covering SPI's and CDS's logos. SPI and CDS employees used Marikina business cards and separate cell phones to disguise whom they worked for. They also used a stamp of Cruz's signature to endorse checks from the prime contractors for deposit into SPI's bank accounts. Although Marikina's payroll account paid CDS's employees, CDS reimbursed Marikina for the labor costs.

In 2004, Gordon Nagle passed away. Joseph Nagle inherited his father's 50.1% stake in SPI and assumed the titles of President and Chief Executive Officer. At that time, Fink became the Chief Operating Officer and Chairman of the Board. SPI's relationship with Marikina lasted until March 2008. Between 1993 and March 2008, Marikina was awarded contracts under the PennDOT DBE program worth over $119 million and contracts under the SEPTA DBE program worth over $16 million. Between 2004 and March 2008, Marikina was awarded contracts under the DBE programs worth nearly $54 million.
U.S. v. Nagle, supra.  
The Court of Appeals then outlines the events that led to Nagle’s motion to suppress:
SPI's and CDS's offices were all located in the same compound in Cressona. None of the offices was open to the public. SPI's administrative office was a converted, two-story white house. The house was subdivided into offices and cubicles. Between twelve and fifteen people worked in the building, as well as Nagle and Fink. CDS's administrative office was also a converted house, owned by Fink and leased to CDS. The compound contained a transportation building, a production building, and various parking lots. In total, SPI and CDS employed around 140 individuals who worked in the compound.

SPI and CDS purchased a computer for nearly every employee who required one. They also created a shared network over a server. The twenty-five employees who had access to the network needed a user identification and password to access it. The network itself was compartmentalized into drives. Only five people, including Nagle and Fink, had access to all of the drives on the network. Emails sent from or received by SPI or CDS accounts were stored on the network as well. Nagle received a company computer, which he took home every night and used for business and personal purposes. He never used any other employee's computer.

In October 2007, the Federal Bureau of Investigation  ('FBI') executed two search warrants at SPI's and CDS's offices. The warrants authorized agents to seize `business records of [Marikina] and all predecessors and affiliated operating entities, [SPI,] and CDS . . . including any and all’ financial documents; contracts and invoices; payroll documents and personnel files; email and correspondence; phone records and calendars; and `[c]omputers and computer equipment.’ . . . During their search of SPI's and CDS's offices pursuant to the warrants, agents found eleven computers and the shared network server. The agents imaged the computers on site. Nagle had brought his computer home with him before the search, so it was not seized and imaged.
U.S. v. Nagle, supra.  
The next development was that, in November of 2009, a
federal grand jury in the Middle District of Pennsylvania returned an indictment against Nagle and Fink. The indictment charged them with one count of conspiracy to defraud the United States, in violation of 18 U.S. Code § 371; eleven counts of wire fraud, in violation of 18 U.S. Code § 1343; six counts of mail fraud, in violation of 18 U.S. Code § 1341; one count of conspiracy to engage in unlawful monetary transactions, in violation of 18 U.S. Code § 1956(h); and eleven counts of engaging in unlawful monetary transactions, in violation of 18 U.S. Code § 1957. Cruz, the owner of Marikina; Dennis Campbell, an SPI executive; and Timothy Hubler, a CDS executive, were indicted separately, pled guilty to the charges, and agreed to cooperate against Nagle and Fink.

Nagle and Fink jointly moved to suppress the electronic evidence that the FBI agents had imaged from SPI's and CDS's computers and network server during the October 2007 search. They argued (1) that the warrants were unconstitutional general warrants, (2) that the warrants were unconstitutionally overbroad, and (3) that the agents had executed the warrant in an unreasonable manner. The United States opposed the motion, contesting each of the arguments and also suggesting that Nagle and Fink lacked the requisite privacy interest to challenge the searches. The District Court held a hearing and took evidence. Two FBI agents and an FBI employee testified about the preparation and execution of the warrants as well as the FBI's review and analysis of the imaged data. Nagle and Fink testified about the history and structure of SPI and CDS, the two companies' computers and network use, and their own use of the companies' computer infrastructure.
U.S. v. Nagle, supra.  
After the hearing, Fink pled guilty to
one count of conspiracy to defraud the United States, in violation of 18 U.S. Code § 371. Nagle, however, continued his challenge to the search. In September 2010, the District Court denied Nagle's suppression motion. The District Court concluded Nagle failed to show he had a personal expectation of privacy in the electronic information that the agents had imaged from SPI's and CDS's computers and network server. The District Court reasoned that Nagle never used the other employees' computers and that `[w]hile [Nagle] may have had the expectation that, as President and CEO of SPI and CDS, the contents of the companies' server would remain private, he had this expectation in his official capacity as an executive and officer of these corporations as opposed to himself as an individual.’ . . . Therefore, the District Court held that `Defendant has not demonstrated that any of his Fourth Amendment rights were violated, and thus his ownership of the companies whose records were seized is irrelevant.’ . . .

On April 5, 2012, after a trial, a jury found Nagle guilty on all of the charges presented in the indictment except for four of the wire fraud charges.
U.S. v. Nagle, supra (emphasis in the original). The District Court Judge later sentenced Nagle to “84 months of incarceration, one year of supervised release, a $25,000 fine, a $2,600 special assessment, and no restitution.”  U.S. v. Nagle, supra.  
The Court of Appeals began its analysis of Nagle’s appeal of the District Court’s denial of his motion to suppress by explaining that a defendant who
seeks to suppress evidence allegedly seized or discovered in violation of the Fourth Amendment must first demonstrate that the Government physically occupied his property for the purpose of obtaining information or that he had `a legitimate expectation of privacy that has been invaded by government action.’ Free Speech Coal., Inc. v. Att'y Gen., 677 F.3d 519 (U.S. Court of Appeals for the 3d Circuit 2012). . . .To have a legitimate expectation of privacy, the defendant must show `an actual or subjective expectation of privacy in the subject of the search or seizure’ and show that `this expectation of privacy is objectively justifiable under the circumstances.’ U.S. v. Donahue,  764 F.3d 293 (U.S. Court of Appeals for the 3d Circuit 2014). . . . In other words, the expectation of privacy must be `one that society is prepared to recognize as reasonable.’ Smithv. Maryland, 442 U.S. 735 (1979).

No one disputes that SPI and CDS, as corporate entities, could challenge the search of their respective offices, whether through a motion to suppress—had they been charged with a crime—or through a Bivens action. Nagle argues that because he is the majority owner of the small, family-operated corporations, he should have the same ability to challenge the searches that the corporations do. In other words, Nagle says, because the Government physically intruded on the corporations' property and otherwise invaded their legitimate expectations of privacy, and because he is the majority owner of the corporations, the Government physically intruded on his property and otherwise invaded his legitimate expectation of privacy. In support of that argument, Nagle cites a line from New York v. Burger, 482 U.S. 691 (1987): `An owner or operator of a business . . . has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable.’
U.S. v. Nagle, supra (emphasis in the original).
The court also noted that the above expectation of privacy in commercial property
`is different from, and indeed less than, a similar expectation in an individual's home.’ New York v. Burger, supra.  Although the Supreme Court has not clarified precisely how much `less] of an expectation of privacy a business owner has in commercial premises, we see a consensus among the Courts of Appeals that a corporate shareholder has a legitimate expectation of privacy in corporate property only if the shareholder demonstrates a personal expectation of privacy in the areas searched independent of his status as a shareholder.

In United States v. SDI Future Health, Inc., 568 F.3d 684 (U.S. Court of Appeals for the 9thCircuit 2009), the defendants were part-owners of an incorporated business and sought to challenge a warrant authorizing a search of the corporation's premises. United States v. SDI Future Health, Inc., supra. The Ninth Circuit rejected their argument that `mere ownership and management of’ the corporation allowed them to challenge the search of the corporation's premises. United States v. SDI Future Health, Inc., supra. This was because `a reasonable expectation of privacy does not arise ex officio, but must be established with respect to the person in question.’ United States v. SDI Future Health, Inc., supra.  

However, the defendants could still show a legitimate expectation of privacy in the corporation's property if they `show[ed] some personal connection to the places searched and the materials seized” and “took precautions on [their] own behalf to secure the place searched or things seized from any interference without [their] authorization.’ United States v. SDI Future Health, Inc., supra.  The court remanded the matter for further fact finding.
U.S. v. Nagle, supra.  
The Court of Appeals went on to point out that the cases discussed above
all support a common proposition: a shareholder may not challenge a search of corporate property merely because he is a shareholder, but he may challenge the search if he `show[ed] some personal connection to the places searched and the materials seized,’ United States v. SDI Future Health, Inc., supra, and protected those places or materials from outside intrusion.
U.S. v. Nagle, supra.  
It therefore held that
[w]e find this line of authority persuasive and adopt it. To show he can challenge the search of SPI's and CDS's offices and the seizure of the employees' computers and network server as a shareholder and executive, Nagle must show a personal connection to the place searched or to the item seized and that he attempted to keep the place and item private. Nagle has failed to meet this standard.

The employees' computers that were seized and imaged were discovered in the employees' offices. Nagle did not show that he used these employees' offices, nor that he used their computers or accessed their files. Accordingly, he failed to show a personal connection to the computers or the place where they were discovered.

The server is, however, slightly more complicated. The server was not seized from his office. Therefore, Nagle must show a personal connection to the electronic files located on the server and that he kept them private in order to demonstrate a reasonable expectation of privacy. Nagle failed to show that he ever accessed other employees' files and emails on the server and, therefore, failed to establish a personal connection to their files. Although Nagle certainly had a personal connection to his own files and emails located on the server, he failed to show what efforts he made to keep his materials private from others. Although the server was password protected and only five individuals, including Nagle, had access to every drive on the server, Nagle did not establish where his files and emails were located on the server and how many people had access to those drives. Thus, Nagle did not meet his burden of proof to demonstrate a subjective expectation of privacy in his files and emails on the server.
U.S. v. Nagle, supra (emphasis in the original).
The Court of Appeals therefore held that,
[f]or these reasons, we conclude that Nagle failed to establish that he had a reasonable expectation of privacy in the places searched and items seized or that the Government intruded onto his property. . . . Therefore, the District Court properly denied the motion to suppress.
U.S. v. Nagle, supra (emphasis in the original).

Monday, November 23, 2015

The Bureau of Immigration Appeals, the "Citizen of India" and Computer Intrusion

This post examines a recent opinion from the U.S. Court of Appeals for the 3rd Circuit in which the court is reviewing a decision of the Board of Immigration Appeals. Makwana v. Attorney General of the United States, 611 Fed. Appx. 58 (2015).  The court begins the opinion by explaining that
[p]ro se petitioner Rajendrasinh Makwana petitions for review of the Board of Immigration Appeals' (`BIA’) final order of removal. We will grant the petition, and remand to the BIA for further proceedings. 
Makwana v. Attorney General of the United States, supra.  You can, if you are interested, read more about the facts and prior proceedings in the case in the articles you can find here and here, and the FBI press release you can find here.
Then, as appellate courts usually do, the Court of Appeals explained how, and why, this appeal arose:
Makwana is a citizen of India who was admitted to the United States as an H–IB nonimmigrant worker with authorization to remain until March 12, 2010. His then-employer, Marlabs, Inc. (`Marlabs’), had previously filed a visa petition for a prospective immigrant employee (FormI–140) on his behalf. It was approved in November 2006, and Makwana filed an application for adjustment of status to become a lawful permanent resident (Form I–485) in 2007.

In January 2009, Makwana was indicted in federal court for `computer intrusion’ in violation of former 18 U.S. Code §1030(a)(5)(A)(i) and (a)(5)(B)(i). On February 5, 2009, the United States Citizenship and Immigration Services (`USCIS’) notified him that his H–1B visa had been revoked because Marlabs had withdrawn its petition on his behalf.

In July 2009, Makwana accepted a job with a different company, and notified USCIS of his change of employment so that he could transfer, or `port,’ his I–140 petition. See 8 U.S. Code § 1154(j) (stating that an I–140 petition “for an individual whose application for adjustment of status . . . has . . . remained unadjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or a similar occupational classification”). However, USCIS revoked his I–140 petition on September 29, 2009, because Marlabs withdrew its support.
Makwana v. Attorney General of the United States, supra.
The Court of Appeals then goes on to explain that on
February 23, 2010, USCIS denied Makwana's I–485 application for adjustment of status based on the September 2009 revocation of his I–140 petition. Makwana filed a motion with USCIS to reconsider the denial of his I–485 petition, asserting that he had `ported’ his valid I–140 visa. His motion was denied on November 8, 2010. USCIS agreed that Makwana's I–140 visa remained valid, but determined that he was inadmissible under `Section 212(a)(2)(A)(i)(I) of the Act for his conviction of Computer Intrusion, a crime involving moral turpitude [(“CIMT”)], on October 4, 2010.’ (A.R. 000035.) On November 23, 2010, USCIS notified Makwana that his employment authorization had been denied because he was not eligible due to the denial of his I–485 petition.

On December 17, 2010, Makwana was convicted of the computer intrusion charge and was thereafter sentenced to 41 months' imprisonment. (A.R. 000218–27.) DHS began removal proceedings in December 2011, charging Makwana as removable under 8 U.S. Code §1227(a)(1)(B) (for remaining in the United States for longer than permitted), 8 U.S. Code § 1227(a)(1)(C)(i) (for failing to maintain or comply with the conditions of his nonimmigrant status), and 8 U.S. Code § 1227(a)(2)(A)(i)(I) (for being convicted of a CIMT committed within five years after admission, for which a sentence of one year or longer may have been imposed). Makwana conceded the first two charges and argued only that his conviction was not for a CIMT.
Makwana v. Attorney General of the United States, supra.
The court then describes what happened next, noting, initially, that the
Immigration Judge (`IJ’) sustained all charges of removability, and the BIA dismissed Makwana's appeal. We then granted Makwana's petition for review after determining that the BIA improperly applied the modified categorical approach to determine that Makwana's conviction was a CIMT. We vacated the BIA's ruling that Makwana was removable for having been convicted of a CIMT, and remanded the case for further proceedings. Makwana v. Att'y Gen., 543 Fed.Appx. 186 (U.S. Court of Appeals for the 3rd Circuit 2013).

On remand, Makwana asserted that his offense did not constitute a CIMT, and also requested that the BIA remand the case to the IJ for adjudication of his application for adjustment of status, as he claimed that he is eligible for such relief because he has a valid I–140 petition, and because a visa is immediately available to him. In November 2014, the BIA determined that Makwana was not removable under 8 U.S.Code §1227(a)(2)(A)(i), as his offense was not a CIMT. However, it did not alter its decision that Makwana remained removable under 8 U.S. Code §§1227(a)(1)(B) and (a)(1)(C).

The BIA then considered Makwana's request to remand the case to the IJ so that he could pursue his application for adjustment of status. The BIA explained that Makwana believed that he had a valid, approved employment-based visa petition (his I–140), because he could `port that visa petition to his subsequent employer under 8 U.S. Code § 1154(j).’ In determining that that this avenue of relief was not available to Makwana, the BIA relied on the following facts: (1) he was fired by Marlabs in January 2009, (2) his I–140 petition was revoked on February 5, 2009, and (3) he did not specify when he was hired by his next employer.
Makwana v. Attorney General of the United States, supra.
It went on to explain that the “BIA then stated” that,
`[h]aving not asserted and shown that he was hired within the narrow time frame between his termination by the petitioning employer and the revocation of the visa petition, he has not shown that he would be able to port the visa petition even if it were otherwise portable under section 204(j) of the Act. Thus, he has not shown that he has a visa immediately available, and is not eligible for adjustment of status. We will therefore deny the motion to remand. (A.R. 000041.)’

Makwana thereafter filed a timely motion for reconsideration, arguing that the BIA had relied on a factual error in denying his motion to remand. In particular, he asserted that the BIA's statement that his I–140 petition had been revoked on February 5, 2009, was incorrect, as it had actually not been revoked until September 29, 2009. Further, he asserted that he had been hired by another company before his I–140 petition had been revoked, and that the basis for the BIA's decision that he was not eligible to port his visa—i.e., his purported failure to show that he had been hired between his termination and the revocation of his visa—was mistaken.

On February 3, 2015, the BIA denied Makwana's motion for reconsideration. The BIA did not acknowledge Makwana's arguments and instead merely stated without explanation that he did not `reveal a factual or legal aspect of [his] case that was improperly overlooked,’ and he did not `present a new argument that persuade[d] it to alter’ its prior decision. (A.R. 000005.)
Makwana v. Attorney General of the United States, supra.
After noting that “Makwana has now filed a petition for review, which the Government opposes”, the Court of Appeals explains that
[w]e have jurisdiction to review final orders of the BIA pursuant to 8 U.S. Code § 1252. Here, we have jurisdiction over only the BIA's decision denying Makwana's motion to reconsider. See Stone v. INS, 514 U.S. 386 (1995) (holding that a timely motion to reopen or reconsider does not toll the deadline for seeking review of the BIA's underlying removal order). We review the BIA's denial of reconsideration for abuse of discretion and will not disturb it unless it was `arbitrary, irrational, or contrary to law.’ Borges v. Gonzales, 402 F.3d 398 (U.S. Court of Appeals for the 3d Circuit 2005).
Makwana v. Attorney General of the United States, supra.
It went on to explain that a
motion to reconsider before the BIA is a `request that [it] reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.’ In re Ramos, 23 I & N Dec. 336, 338 (BIA 2002) (en banc) (quotation marks omitted). Such motions shall `state the reasons for the motion by specifying the errors of fact or law in the prior . . . decision and shall be supported by pertinent authority.’ 8 C.F.R. §1003.2(b)(1)see 8 U.S. Code § 1229a(c)(6)(C).
Makwana v. Attorney General of the United States, supra.
The Court of Appeals then outlined its ruling in the case, noting, first, that
[h]ere, Makwana's motion to reconsider was based on a factual error made by the BIA when it denied his motion to remand. That is, he argued—and submitted evidence in support thereof—that the BIA erred by stating that his I–140 visa was revoked on February 5, 2009, when, in fact, it was revoked on September 29, 2009. Makwana's argument was correct, a point that the Government concedes. However, it argues that this was not a significant error warranting reconsideration.

We disagree. The error concerning the date of the I–140 petition's revocation was key to the BIA's determination that he could not “port” his visa, and thus that he did not have `a visa immediately available to him, and is not eligible for adjustment of status.’ Because of the erroneous determination that his petition was revoked on February 5, 2009, and its factual determination that he had not obtained a new job before that date, the BIA declined to remand Makwana's case to the IJ.

Thus, the arguments in Makwana's motion to reconsider concerning the date of the revocation of his I–140 visa were not misplaced, and the BIA abused its discretion by denying the motion without even acknowledging, much less addressing, these arguments. Further, although the Government correctly argues that immigration proceedings are subject to harmless error analysis, it is not applicable here, as we cannot say that `it is highly probable that the error did not affect the outcome of the case.’ See Yuan v. Att'y Gen., 642 F.3d 420 (U.S. Court of Appeals for the 3d Circuit 2011). In particular, we decline to address the Government's alternative arguments in the first instance.

Makwana v. Attorney General of the United States, supra.

Friday, November 20, 2015

Manslaughter, Text Messages and the Facebook Posts

After a jury convicted Mickey Wahl of manslaughter and the trial judge sentenced him “to a presumptive prison term of 10.5 years”, he appealed.  State v. Wahl, 2015 WL 6687551 (Court of Appeals of Arizona 2015).  You can, if you are interested, read more about the case in the news stories you can find here, here and here.
The Court of Appeals begins its opinion by explaining that
in the fall of 2011, victim S.C. was dating Wahl's former girlfriend, Susan.  After Wahl's breakup with Susan, he dated Jane, who had previously dated S.C. There was considerable animosity among and between these couples because of their prior relationships with each other. On December 11, 2011, S.C. and Susan were at a bar.

Wahl and Jane later arrived at the bar, but only Jane went inside. Susan and Jane got into a physical altercation and went out to the parking lot where the fight continued.

Wahl intervened, picking up Jane and placing her in the passenger side of her truck. S.C. followed, arguing with Wahl. Wahl got in the driver's side of the truck and at some point, S.C.'s arm became trapped when Wahl rolled up his window. Despite S.C.'s arm being caught in the truck, Wahl started driving away. Initially, S.C. ran alongside the truck, but eventually his arm loosened from the window and he fell. S.C.'s head was run over by the truck, and he died at the scene. Sheriff's deputies later found Wahl at his home. He was charged with manslaughter and negligent homicide, and convicted and sentenced as described above.
State v. Wahl, supra.
Wahl made a number of arguments in his appeal, but this post examines only a few of them, the first of which involved the prosecution’s introducing certain “electronic communications”.  State v. Wahl, supra.  More precisely, in Wahl’s appeal he initially argued that
text messages and Facebook posts should have been precluded. He repeats the arguments made in his motion in limine that the electronic evidence was irrelevant, confusing, unfairly prejudicial, and constituted evidence of prior bad acts or improper character. We review a trial court's evidentiary rulings for abuse of discretionState v. Jones, 197 Ariz. 290, 4 P.3d 345 (Arizona Supreme Court 2000).
State v. Wahl, supra. 
The Court of Appeals began its analysis of Wahl’s evidentiary argument by noting that 
[w]e first address Wahl's prior-acts argument. Pursuant to Rule 404(b), Arizona Rules of Evidence, evidence of `other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.’

Other-act evidence may be admitted for a proper purpose, such as to prove `motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ Rule 404(b), supra. Even if a proper purpose is found, however, the evidence must be relevant and the probative value not substantially outweighed by the danger of unfair prejudiceSee Arizona Rules of Evidence 401402, and 403State v. Gulbrandson, 184 Ariz. 46, 906 P.2d 579 (Arizona Supreme Court 1995).

Although Wahl cites extensively to Rule 404(b) and related `prior-acts’ cases, he focuses his analysis on relevance and unfair prejudice. To the extent Wahl argues the communications should not have been admitted because they contained evidence of other acts, such as an incident in which Jane had been banned from the bar where the incident took place, he overlooks testimony about those same acts. Therefore, even if we were to assume it was error to admit the communications, such error would be harmless given evidence to the same effect.

Additionally, although Wahl's text messages contained inflammatory language directed at S.C. and Susan, they were admitted for a proper purpose. As we discuss below in the context of individual messages and acts, they were relevant to establishing Wahl's motive and intent. See State v. Fulminante, 161 Ariz. 237, 778 P.2d 602 (Arizona Supreme Court (1988)) (evidence of prior ill will between victim and defendant tends to show malice or motive). They also rebutted Wahl's contention that he had not intended to injure S.C.
State v. Wahl, supra. 
The court then explained that Wahl
generally argues the communications were significantly more prejudicial than probative because they included communications months before and after the incident, and because the text messages were one-sided, missing Susan's half of every conversation. We discuss each contention in turn.
State v. Wahl, supra. 
The Court of Appeals also noted that the text messages at issue
included S.C.'s and Wahl's communications with Susan for two months before the incident, as well as and Wahl's communications with Susan in January and February 2012. The Facebook status posts and private messages also were posted in the preceding two months. We address the communications in chronological order.
State v. Wahl, supra. 
First, he argued that
several messages about a fight he had with S.C. were irrelevant. In October 2011, Wahl and S.C. had a disagreement at the bar, which resulted in Wahl physically throwing S.C. out of the bar. Wahl and two of the state's witnesses testified about this disagreement. On October 19, 2011, Wahl posted a message on his Facebook page that stated, `Thank you [S.C.], for helping me rid myself of [Susan], and I owe you a drink, for throwing you out the bar on your face.’ He later posted, `I really felt bad, about throwing him so far out the door . . .  lmao!’  Additionally, Wahl texted Susan that he `felt . . . bad about throwing [S.C.] out on his face.’

As with the Rule 404(b) argument, evidence of a prior disagreement between the victim and the defendant is relevant. See State v. Fulminante, supra (existence of prior ill will renders commission of crime more probable); see also State v. Hardy, 230 Ariz. 281, 283 P.3d 12 (Arizona Supreme Court 2012) (`Evidence of prior argument with or violence toward a victim is . . . admissible to show motive or intent’). Further, Wahl does not identify how the risk of unfair prejudice would outweigh this probative value. Rather, the messages, which appear to be adverse to Wahl and probative of the state's theory of the case, were prejudicial `in the sense that all good relevant evidence is,’ but not unfairly prejudicial. State v. Shurz, 176 Ariz. 46, 859 P.2d 156 (Arizona Supreme Court 1993).
State v. Wahl, supra. 
Next, the Court of Appeals took up Wahl’s argument that
any text messages about an incident in which Jenny was excluded from the bar were irrelevant because `there was no evidence that either [Wahl] or [Jane] knew, or should have known, that [S.C.] and [Susan] would be [there] the night of [S .C.'s death].’ One of the state's witnesses testified that in November 2011, Jane was banned from the bar after she backed into a car in the parking lot. Wahl texted Susan a vague message about the incident, implying that he knew Jane had hit the car.

Additionally, the state introduced earlier Facebook messages between Wahl and Jane that intimated Jane had been banned from the bar even before she hit the other car, but that Wahl and Jane thought it would be `funny’ to try to go to the bar anyway, apparently to make Susan angry.
State v. Wahl, supra. 
The Court of Appeals did not buy Wahl’s argument regarding the text messages:
These messages were relevant because they suggested Jane should not have been at the bar the night S.C. died. The state contended that Wahl and Jane planned to get together and go to the bar out of spite. Combined with the Facebook messages, the text messages had the tendency to show that Jane and Wahl may have gone to the bar to see if they could harass Susan and S.C., making them relevant to Wahl's intent. Further, the messages contradicted Jane's trial testimony that she was not banned from the bar.

Wahl's argument that he and Jane did not believe Susan would be there does not diminish the relevance of the messages. Further, Wahl does not identify anything prejudicial about the messages, other than the fact that they predate S.C.'s death. The probative value is not substantially outweighed by the danger of unfair prejudice, and the trial court did not err by admitting them. Arizona Rules of Evidence - Rule 403.
State v. Wahl, supra. 
As noted above, Wahl also made other arguments, but since they did not directly address the admissibility and/or use of electronic evidence, this post skips those arguments and outlines Wahl’s final argument, which was that “there was insufficient evidence to support the jury's verdict.” State v. Wahl, supra.  If you are interested, the chapter you can find here explains what a motion based on the argument that the evidence presented at trial is insufficient to support a conviction involves, and what it seeks to accomplish.
The Court of Appeals began its analysis of Wahl’s argument by noting that he claimed
there was insufficient evidence to support the jury's verdict. We examine such a claim to determine whether `substantial evidence’ supports the jury's verdict. State v. Lopez, 230 Ariz. 15, 279 P.3d 640 (Arizona Court of Appeals 2012). Substantial evidence is `”such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.”’ State v. West, 226 Ariz. 559, 250 P.3d 1188 (Arizona Supreme Court 2011), quoting State v. Mathers, 165 Ariz. 64, 796 P.2d 866 (Arizona Supreme Court 1990).
State v. Wahl, supra.  Since this is a criminal case, the verdict had to be based on evidence that proved Wahl’s guilty beyond a reasonable doubt.
It then went on to point out that,
[v]iewing the facts in the light most favorable to sustaining the jury's verdict, State v. Payne, 233 Ariz. 484, 314 P.3d at 1239 (Arizona Supreme Court 2013), there is sufficient evidence to support a guilty verdict on the manslaughter charge. A person commits manslaughter by `[c]ommitting second degree murder as prescribed in §13–1104, subsection A upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim.’ Arizona Statutes § 13–1103(A)(2). A person commits second-degree murder when, without premeditation, the person either intentionally causes the death of another person or recklessly engages in conduct that creates a grave risk of death and thereby causes the death of another person, while manifesting extreme indifference to human life. Arizona Statutes § 13–1104(A)(1), (3).
State v. Wahl, supra. 
The court then proceeded to issue its ruling on Wahl’s evidentiary argument, holding that
[e]yewitness V.P. testified that S.C. had approached Wahl in the truck, and the two of them began fighting. S.C.'s arm was then pinned in Wahl's rolled-up window while Wahl drove off, speeding up to the point where S.C. could no long run next to the truck. S.C. eventually fell and was run over by the truck, and Wahl did not stop.

Testimony by several other witnesses and evidence of Wahl's Facebook and text message history established Wahl did not like S.C. because he had dated Susan, and that they had a disagreement months earlier. From that evidence, reasonable jurors could find Wahl intentionally or recklessly had caused S.C.'s death. Sufficient evidence supported the jury's verdict.
State v. Wahl, supra. 

For these and other reasons, the court affirmed “Payne’s convictions and sentences.”  State v. Wahl, supra.