Friday, April 18, 2014

Child Pornography, RoundUp and the Franks hearing

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After the federal government charged Paul Case with distribution and possession of child pornography in violation of 18 U.S. Code §§ 2252(a)(2) and 2252(a)(4)(B), he



[moved, pursuant] to Franks v.Delaware, 438 U.S. 154 (1978), to suppress evidence obtained pursuant to a search warrant, arguing that the agent who applied for the warrant misled the issuing magistrate judge by failing to disclose the FBI's use of an automated computer program to discover child pornography files on defendant's computer available for download through a peer-to-peer (`P2P’) file sharing network. 



U.S. v. Case, 2014 WL 1052946 (U.S. District Court for the Eastern District of Wisconsin 2014). Case also argued, in his motion, that “the program may have infiltrated non-shared, private portions of his computer, in violation of the 4th Amendment.”  U.S. v. Case, supra.  



The U.S. District Court Judge who had the case began his opinion by explaining that



[s]earch warrants enjoy a presumption of validity. See Franks v. Delaware, supra. . . . A defendant is entitled to an evidentiary hearing to examine the sufficiency of a search warrant only if he makes a `substantial preliminary showing’ that the warrant application contained a materially false statement made by law enforcement with deliberate or reckless disregard for the truth and that the false statement was necessary for the finding of probable cause. U.S. v. Williams, 718 F.3d 644, 649 (U.S. Court of Appeals for the 7th Circuit 2013). . . .



A defendant may also challenge an affidavit by demonstrating that the affiant intentionally or recklessly omitted material information. U.S. v. Hoffman, 519 F.3d 672 (U.S. Court of Appeals for the 7th Circuit 2008).



The court need not hold a Franks hearing based on conclusory or generalized assertions. See U.S. v. Currie, 739 F.3d 960 (U.S. Court of Appeals for the 7th Circuit 2014); United States v. Taylor, 154 F .3d 675, 680 (U.S. Court of Appeals for the 7th Circuit 1998). Rather, the defendant must offer direct evidence of the affiant's state of mind or inferential evidence that the affiant had obvious reasons for omitting facts in order to prove deliberate falsehood or reckless disregard. U.S. v. Souffront, 338 F.3d 809 (U.S. Court of Appeals for the 7th Circuit 2003).



Finally, if the allegedly false statements are excluded -- or the omitted facts are included -- and the affidavit still supports a finding of probable cause, no hearing is required. U.S. v. Souffront, supra. . . . See also Betker v. Gomez, 692 F.3d 854, 862 (U.S. Court of Appeals for the 7th Circuit 2012) (`We eliminate the alleged false statements, incorporate any allegedly omitted facts, and then evaluate whether the resulting ‘hypothetical’ affidavit would establish probable cause’).



U.S. v. Case, supra.  If you would like to read about the process a U.S. officer uses to get a search warrant, check out this source.  And if you are interested, you can read more about the process of obtaining a Franks hearing here.



The judge then began his analysis of Case’s arguments, which he outlined here:



[Case’s] argument has evolved throughout the course of these proceedings. In his original objection, supporting materials, and proposed statement, [h]e appeared to make two claims: (1) that the agent lied about the existence of the online covert employee (OCE5023) in order to conceal the use of RoundUp; and (2) that RoundUp allows law enforcement to invade the private spaces of a suspect's computer.



In his reply brief in support of the objection, he appears to abandon the first claim and raises a third—that RoundUp may not be sufficiently reliable. I address each of these three claims in turn.



U.S. v. Case, supra.  



The judge then addressed all three arguments, in order:



Citing other search warrant applications in this district, [Case] contends an FBI directive prevents the disclosure of RoundUp in such affidavits and requires its use be concealed by alleging the participation of a fictitious online covert employee. 

In its response to the objection, the government indicates that OCE–5023 is a real person, whose name is not disclosed given his/her role in covert investigations; the government denies any deception in the warrant affidavit.



[Case] presents no evidence refuting the government's assertion; indeed, in his reply brief he appears to accept it, which dooms his request for a Franks hearing based on deception. . . . 

Instead, he indicates that RoundUp may have been running unattended at the time of the downloads from his computer and argues that an evidentiary hearing is required to determine the reach of this program, how it was used in his case, and whether it is reliable.



U.S. v. Case, supra.  



He then addressed Case’s argument regarding RoundUp’s invading private spaces:



Relying on the articles written by RoundUp's creators, [he] contends that the program surreptitiously enters the private spaces of a target's computer and inserts data into those private spaces. I cannot find any support for that claim in the articles. The authors state: `No unauthorized access to the target's machine is required; tags are inserted in the normal function of a system.’ . . .  



The authors also suggest that the hash value of the tag be provided to the magistrate as part of the search warrant application . . . which controverts [Case’s] claim that agents using the program are instructed to conceal their activities. The articles provide no non-speculative basis for believing that RoundUp may be used to invade private spaces. Nor do the articles discuss tagging in relation to the `Ares’ P2P network, which was used in the present case.



Based on materials defendant previously submitted, it appears that RoundUp for Ares was developed by the Ontario Provincial Police, rather than the computer science professors who wrote the articles upon which [Case] now relies. . . .



In any event, even if RoundUp could be used improperly, [he] makes no claim that the government invaded the private spaces of his computer, to insert tags or to search for evidence, despite the fact that he had forensic experts examine the computer. He admits that he does not know whether tagging was even being used at the time his computer was accessed



[Case] asks for a hearing so the court can determine whether agents used the program to enter the unshared space on his computer, but the district court is required to hold a hearing on a motion to suppress only if the defendant's allegations are sufficiently definite, specific, non-conjectural, and detailed. U.S. v. Curlin, 638 F.3d 562 (U.S. Court of Appeals for the 7th Circuit 2011).



Given the speculative nature of [Case’s] claims, there is no need to hold a hearing and no basis for concluding that illegally obtained evidence was used to obtain the warrant. . . .



U.S. v. Case, supra (footnotes omitted).



[Case] notes that, according to the search warrant affidavit, OCE5023 downloaded files from [his] computer between 2:11 a.m. and 3:33 a.m. on November 25, 2012. [He] presents an affidavit from his computer expert, who indicates that the agent-affiant admitted to him that the computer program was running unattended during the time of the downloads. . . .



Even assuming that the program was running unattended at the time of the downloads, [Case] provides no authority in support of his claim that this precludes a finding of probable cause. 

Nor does he claim that the FBI failed to confirm that the material downloaded was, in fact, child pornography. The warrant affidavit includes a detailed description of three of the files. . . .



This is not a situation where a computer program downloaded material believed to be contraband (based on, say, a keyword search or hash values) and no human being looked at the material before a warrant was sought.



The affidavit further indicates that, after the images were downloaded and confirmed to be child pornography, the FBI identified the IP address from which the images were downloaded and, pursuant to a subpoena to the internet service provider, identified defendant as the subscriber. 

This process is sufficiently reliable to support the issuance of the warrant. . . .



Finally, I decline to hold an evidentiary hearing to explore the reliability and capabilities of RoundUp. Hearings on motions to suppress are not granted as a matter of course. U.S. v. Villegas, 388 F.3d 317 (U.S. Court of Appeals for the 7th Circuit 2004).



District courts are required to conduct evidentiary hearings only when a substantial claim is presented, there are disputed issues of material fact that will affect the outcome of the motion, and the defendant's allegations are sufficiently specific and non-conjectural. . . . . Here, [Case] offers only speculation about RoundUp. Accordingly, there is no basis for holding a hearing.



U.S. v. Case, supra.  



The judge therefore denied Case’s motion to suppress.  U.S. v. Case, supra.  The article you can find here, discusses the use of RoundUp in child pornography investigations.

Wednesday, April 16, 2014

Copying Data as a 4th Amendment Seizure


In this post, I return to an issue I did several posts on, early in the career of this blog: “Seizure,” “Copying as a Seizure (Again)” and “Copying as Search and Seizure.”

I am returning to the issue because a U.S. Magistrate Judge who sits in the U.S. District Court for the District of Columbia recently issued an opinion in which he addressed the copying-as-seizure issue:  In the Matter of the Search of Information Associated with [redacted]@mac.com that is Stored at Premises Controlled by Apple, Inc. (hereafter, “In the Matter of the Search”), 2014 WL 1377793.  He begins the opinion by explaining that

[p]ending before the Court is a Renewed Application for a search and seizure warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S. Code § 2703 . . . to disclose certain records and contents of electronic communications relating to an Apple email address. See Affidavit in Support of an Application for a Search Warrant [# 5–1] (sealed) at 1 (hereinafter Affidavit). 

In a previous Memorandum Opinion and Order, this Court denied the government's original application for a search and seizure warrant for the same e-mail address without prejudice both because it failed to clearly specify which e-mails it sought to seize and because it sought authorization to seize e-mails for which it had not established probable cause to seize. . . . The government's Renewed Application does not address these concerns and ignores the substance of this Court's previous rulings. The government persists in its attempt to seize an entire e-mail account and search through all of it.

In the Matter of the Search, supra (emphasis in the original).

As to the case itself, the Magistrate Judge notes that

[t]his is the government's second attempt to obtain a search and seizure warrant for a specific Apple e-mail address as part of its investigation of a possible violation of 41 U.S. Code § 8702 (Solicitation and Receipt of Kickbacks) and 18 U.S. Code § 371 (Conspiracy) involving a defense contractor. . . . For purposes of this opinion, the details of the investigation–which remain under seal on the Court's docket–are irrelevant. . . .

In the Matter of the Search, supra.  If you would like to read an overview of how agents of the government apply for a search warrant, check out Chapter 2 of this manual.

Here, the judge next notes that “[i]n an `Attachment A,’ titled `Place to Be Searched,’ the “government specifies the location of Apple, Inc. and indicates that the `warrant applies to information associated with the e-mail account [redacted]@mac.com dating from [January], 2014, to the present.’”  In the Matter of the Search, supra.  He also noted that in an “`Attachment B,’ titled `Particular things to be seized by the government’”, the government says it will seize:

[a]ll emails, including email content, attachments, source and destination addresses, and time and date information, that constitute evidence and instrumentalities of violations of 41 U.S. Code § 8702 . . . and 18 U.S. Court § 371 . . . dated between [January], 2014, to the present, including emails referring or relating to a government investigation involving any or all of the following: [Redacted list of names of companies and individuals in the form of `John Smith, John Smith, Inc., any current or former John Smith employees, etc.’].

In the Matter of the Search, supra. 

The Magistrate Judge then began his analysis of the problems with the government’s application by explaining why the application for the search and seizure warrant violated the requirements of the 4th Amendment, most notably the concern with general warrants:

The Supreme Court has recognized two constitutional protections served by the warrant requirement of the 4th Amendment. `First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.’ Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Thus, it is this Court's duty to reject any applications for search warrants where the standard of probable cause has not been met. Second, `those searches deemed necessary should be as limited as possible. Here, the specific evil is the ‘general warrant’ abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings.’ Coolidge v. New Hampshire, supra.  To follow the dictates of the 4th Amendment and to avoid issuing a general warrant, a court must be careful to ensure that probable cause exists to seize each item specified in the warrant application.

In the Matter of the Search, supra.  As Wikipedia notes, the 4th Amendment outlaws “unreasonable” searches and seizures, which means you have to have a search and/or a seizure in order to implicate the provisions of the Amendment.

The Magistrate Judge then took up the issue of copying the emails:

As this Court has previously noted, any e-mails that are turned over to the government are unquestionably `seized’ within the meaning of the 4th Amendment. See In re Search of Apple E-mail, 2014 WL 945563 (U.S. District Court for the District of Columbia 2014)  (noting a `seizure’ occurs when there is `an intentional acquisition of physical control’). Although the Supreme Court has never specifically defined what constitutes a seizure in the electronic world, it has stated that, with regard to physical items, `a ”seizure” of property only occurs when there is some meaningful interference with an individual's possessory interests in that property.’ U.S. v. Jacobsen, 466 U.S. 109 (1984).

In this Court's view, a seizure of property occurs when e-mails are copied and taken by the government without the owner's consent because an individual's `possessory interest [in the e-mails] extends to both the original and any copies made from it.’ Orin Kerr, 4th Amendment Seizures of Computer Data,119 Yale L.J. 700 (2010). After all, when a copy is made, `the person loses exclusive rights to the data,’ 4th Amendment Seizures of Computer Data, supra, and it is at that time that the owner's property interest in the e-mail is affected. This reality has been assumed, if not stated outright, in the numerous cases that acknowledge that e-mails turned over to the government by an electronic communications service provider are `seized.’ . . .

In the Matter of the Search, supra. 

The judge then explains that to decide otherwise

would yield unsatisfactory results. First, if copying were not considered `seizing,’ that would suggest the irrelevance of the 4th Amendment to that act:

`If copying data is not a seizure, then copying cannot logically be regarded as a search and it does not violate an expectation of privacy. It is possible to copy files without examining the files. Therefore, if copying is not a seizure, it is outside the scope of the 4th Amendment's reasonableness requirements and is an activity which can be conducted at will, requiring neither the justification of a warrant nor an exception to the warrant requirement. This is not a satisfactory result. Copying has an effect upon the `ownership’ rights of the party whose information is copied.’

Susan W. Brenner and Barbara Frederiksen, Computer Searches and Seizures: Some Unresolved Issues, 8 Mich. Telecomm. & Tech. L.Rev. 39 (2002). Thus, this Court would have to believe that, if the act of copying e-mail is not a seizure, then the 4th Amendment is powerless to prevent the wholesale copying of every single e-mail ever sent, a result that no court could ever reasonably embrace. It would also render hollow the [U.S. Court of Appeals for the] Sixth Circuit's holding in U.S. v. Warshak, 631 F.3d 266 (U.S. Court of Appeals for the Sixth Circuit 2010), that there is a reasonable expectation of privacy with respect to one's e-mails–even though those e-mails were copied by an electronic communications service provider and given to the government. . . .

In the Matter of the Search, supra. 

The judge also noted two other related issues, the first of which was that this

approach suggests that a seizure could only occur if the actual hard drive that contains the target e-mail account, which is presumably in a server farm operated by Apple, is physically taken by the government. This ignores the reality that`“[h]ardware is increasingly fungible’ and that what really matters -- and what the owner of the e-mails actually has a possessory interest in -- `is the data.’ 4th Amendment Seizures of Computer Data, supra.  A focus on hardware instead of data, in determining when a seizure occurs, would therefore miss the mark and ignore fundamental realities about how computers are actually used. See In re Southeastern Equipment Co. Search Warrant, 746 F. Supp. 1563 (U.S. District Court for the Southern District of Georgia 1990) (`As the LeClair Court pointed out, it is the information itself, not the paper and ink or tape recorder or other copying utensil, that is actually seized’) (citing LeClair v. Hart, 800 F.2d 692, 696 n.5 (U.S. Court of Appeals for the 7th Circuit 1986)).

In the Matter of the Search, supra. 

The other issue was that

the government itself characterizes the act of copying e-mails as a seizure by noting that it will `seize’ some of the copied e-mails after the search is complete. . . . It is, after all, seeking a `search and seizure warrant.’ See Rule 41 of the Federal Rules of Criminal Procedure. Thus, even though the e-mails are only being copied by Apple (with other copies remaining on Apple's servers), a seizure is occurring.

Because there is no principled distinction that suggests that copying data once is not a seizure but copying data twice is a seizure, it follows that the e-mails are seized the first time they are copied by Apple and given to the government. Any other position is unsatisfactory because the property interest in e-mails certainly suffers `meaningful interference’ when a third party has unauthorized access to those e-mails.’ Thus, emails are seized when Apple gives them to the government as surely as a physical letter is if it is taken by the postal service and given to the government. . . .

In the Matter of the Search, supra. 

The Magistrate Judge then returned to the real issue: the 4th Amendment implications of what the government was asking him for:

The problem with the government's Renewed Application is not that it fails to specify with particularity what it intends to seize -- and not that it suggests a seizure will not occur  -- but that it will actually seize large quantities of e-mails for which it has not established probable cause and which are outside the scope of Attachment B. The government asks Apple `to disclose the following information to the government for the account listed in Attachment A: all emails, including attachments, associated with the account, dating from [January], 2014, to the present. . . .’ Affidavit at 14.

This Court has an affirmative obligation to `prevent[ ] the seizure of one thing under a warrant describing another.’ See Andresen v. Maryland, 427 U.S. 463 (1976). . . . Here, the warrant describes only certain emails that are to be seized -- and the government has only established probable cause for those emails. Yet it seeks to seize all e-mails by having them `disclosed’ by Apple. This is unconstitutional because `[t]he government simply has not shown probable cause to search the contents of all emails ever sent to or from the account.’ See In re Search of Target Email Address, 2012 WL 4383917 (U.S. District Court for the District of Kansas 2012).

As Judge David J. Waxse wisely analogized, if this were the physical world, it would be akin to `a warrant asking the post office to provide copies of all mail ever sent by or delivered to a certain address so that the government can open and read all the mail to find out whether it constitutes fruits, evidence or instrumentality of a crime. The 4th Amendment would not allow such a warrant.’  In re Search of Target Email Address, supra.

In the Matter of the Search, supra. 

For these and other reasons, the U.S. Magistrate Judge denied the government’s application for the search and seizure warrant.  In the Matter of the Search, supra. 

Monday, April 14, 2014

The Law Student, Character Evidence and Offering to Buy “Your Teenage Daughter"

As a judge who sits on the U.S. Court of Appeals for the 7th Circuit notes at the beginning of his opinion in this case, “Harry McMillan was a second-year law student at the Southern Illinois University School of Law when he posted an ad on craigslist entitled `sell me your teenage daughter.’”  U.S. v. McMillan, 2014 WL 945212. The opinion then goes on to explain that



Chief [Mike] Andrews is a member of the Illinois Attorney General's Task Force on Internet Crimes Against Children, and of the U.S. Secret Service's Southern Illinois Cyber Crimes Task Force. In that capacity, he was trained how to catch people who attempt to use the internet to exploit minors sexually. When Andrews saw McMillan's ad, he responded in the guise of `Mike,’ a father with a teenage daughter who was willing to engage in sex. Over the next two days, McMillan and Andrews exchanged a number of emails, in which McMillan explored such topics as price, the possibility of a threesome, the availability of nude pictures, the location for a tryst, and the use of condoms. McMillan's emails showed he was worried that `Mike’ might be a police officer, and at one point he wrote to Mike that `i don't want to go to jail either.’



A couple of days into the exchange, `Mike’ and McMillan agreed that [they] and the daughter would meet at a local movie theater. (The role of the daughter was played by an adult female who works for a state agency.) The meeting took place as planned on September 22, 2010. As soon as Andrews and the `daughter’ entered the theater, the `daughter’ went to the restroom. Andrews and McMillan spoke to one another, and McMillan asked for nude pictures of the girl Andrews had promised to bring. Andrews handed McMillan an envelope, and as McMillan was opening it, Andrews arrested him.



In connection with the arrest, Andrews searched McMillan and found two condoms in his front pocket, along with a receipt for them. Later that evening, the police searched McMillan's residence and recovered his laptop computer. The computer revealed that Andrews had also responded to McMillan's initial craigslist posting using a second persona: that of a 14–year–old girl named `Kellie.’ McMillan questioned Kellie closely about her sexual experience, asking whether she was `real,’ if she was a virgin, if she would have sex for money, what sexual acts she had performed, whether she had experienced orgasm, and so on. The laptop search also revealed McMillan had tried to find `Kellie’ on Facebook.



U.S. v. McMillan, supra.



The opinion goes on to explain that McMillan was



charged with one count of violating 18 U.S. Code § 2422(b), which prohibits (among other things) knowingly persuading or enticing a person under the age of 18 to engage in criminal sexual activity. He was convicted after a three-day jury trial. The [U.S. District Court Judge] who presided over the trial] sentenced him to 132 months' imprisonment, five years' supervised release, and a $500 fine. 



U.S. v. McMillan, supra.



McMillan made several arguments in appealing his conviction to the Court of Appeals, the first of which was that



he could not, as a matter of law, violate 18 U.S. Code § 2422(b) by having contact only with the adult father of a teenage girl. In his view, the internet contact must be directly between the defendant and the underage person protected by the statute. 



U.S. v. McMillan, supra.  The court began its analysis of his first argument by noting that section 2422(b) states that



[w]hoever, using the mail or any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.



U.S. v. McMillan, supra. As noted above, McMillan argued that the statute “does not criminalize communication between two adults.”  U.S. v. McMillan, supra.



The court noted, first, that six of the other U.S. Courts of Appeals “have concluded that the statute does extend to adult-to-adult communications that are designed to persuade the minor to commit the forbidden acts.” U.S. v. McMillan, supra.  But this Court of Appeals explained that even if those decisions did not exist, it would not read the statute as narrowly as McMillan did.  U.S. v. McMillan, supra.  It noted that the statute “prohibits not only the knowing persuasion (etc.) of the minor, but also attempts to persuade, induce, entice, or coerce the minor into the criminal sexual acts” and one “particularly effective way to persuade or entice a person to do something is to enlist the help of a trusted relative, friend, or associate.”  U.S. v. McMillan, supra. 



The Court of Appeals explained that the



essence of this crime is the defendant's effect (or attempted effect) on the child's mind. Nothing in the statute requires the minor to be the direct recipient of the defendant's message, whether it comes in conversation, by telephone, by text, by email, or in some other way. Human intermediaries long predate the digital contacts that are so common in these cases, and they are still an effective way to convey information.



U.S. v. McMillan, supra.  It also noted that



the fact that McMillan feared that `Mike’ was a police officer setting up a sting shows that he was well aware that he was treading on forbidden ground. We are satisfied that the statute gives adequately clear warning about what it prohibits.



U.S. v. McMillan, supra. 



The court then moved on to McMillan’s next argument:  “that the evidence presented at trial was insufficient to prove that he ultimately intended to persuade a minor to engage in sexual activity or to use an adult as an intermediary.”  U.S. v. McMillan, supra.  The Court of Appeals did not agree:



Most of the evidence from the email exchanges between McMillan and Andrews shows McMillan trying to get the `father’ to agree to allow his daughter to engage in sexual activity with McMillan. McMillan states his intentions differently from time to time, ranging from a direct `how much to f* *k your daughter’ to `I'm not looking for anything bad, maybe someone to hang out with.’ Even if these communications look more like a negotiation with the father, however, there are others on which the jury could have relied.



The most damning is when McMillan emails `Maybe she'd like to see a pic of my cock.’ The jury may have understood this as McMillan's (misguided) effort to entice the girl directly with the picture. On another occasion, McMillan asks `Mike’ in an email if there is `[a]ny chance you can let me talk to your daughter directly, maybe she can email me.’ This, the jury could have thought, was an attempt to get the father to permit McMillan to entice the girl. Finally, there is an email in which McMillan asks `Mike’ `have you talked to her about this yet?’ These examples, which we do not intend to be exhaustive, show that the evidence was sufficient to support the jury's verdict.



U.S. v. McMillan, supra. 



The Court of Appeals then took up what it called



the most troubling part of this case:  the district court's decision to admit evidence under Federal Rule of Evidence 404(b) of a simultaneous email exchange that McMillan was having with `Kellie,’ who was in reality another fictional person portrayed by Andrews. The evidence showed that McMillan exchanged several sexually explicit messages with `Kellie.’



U.S. v. McMillan, supra.  It began its analysis of this issue by noting that



[w]e review decisions to admit evidence for abuse of discretion. See U.S. v. Knope, 655 F.3d 647 (U.S. Court of Appeals for the 7th Circuit 2011). Even if we conclude the district court erred in admitting or excluding certain evidence, however, we must still ask whether the error was harmless -- that is, if it affected the defendant's substantial rights. See Federal Rules of Criminal Procedure 52(a).



U.S. v. McMillan, supra. 



The Court of Appeals then explained that



Federal Rule of Evidence 404 addresses the subject of character evidence. Subpart (a) of the rule generally prohibits the admission of character evidence `to prove that on a particular occasion the person acted in accordance with the character or trait’ -- in other words, to show propensity. But subpart (b)(2) operates as an exception to the general rule of exclusion; it offers the following list of permitted uses of the character evidence:



`This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.’






The court then noted that “for many years,” it has used a “four-part test” that is “designed to screen evidence that should be admitted under Rule 404(b) from that which should stay out.” U.S. v. McMillan, supra.  Under the test, the prosecution must show that



(1) the evidence is directed toward establishing a matter in issue other than the defendant's propensity to commit the crime charged; (2) the evidence shows that the other act is similar enough and close enough in time to be relevant to the matter in issue; (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act; and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.



U.S. v. McMillan, supra (quoting U.S. v. Chambers, 642 F.3d 588 (U.S. Court of Appeals for the 7th Circuit 2011)).



The court then noted that McMillan claimed the “Kellie” evidence violated the



first and fourth parts of the test -- in other words, it was relevant only to propensity (he says), and its prejudicial effect outweighed its probative value in any event. The latter point, which is captured in the fourth part of the traditional test, essentially repeats the independent requirements of Federal Rule of Evidence 403.



The record, however, does not support McMillan's points. It shows instead that the `Kellie’ evidence was directly relevant to issues McMillan put before the jury. In his opening argument, McMillan's trial counsel stated that `Harry will tell you why he placed the ad. And ladies and gentlemen, why he placed the ad is what this case is all about.’



Counsel continued, `Harry will tell you in his own words that he did this with the intent that he might have the opportunity to confront someone who would facilitate a sex crime against a minor in order to get his questions answered.’ McMillan's reason for undertaking this project, counsel said, was to gain a better understanding of child molestation, because McMillan himself had been molested when he was young. Counsel later reiterated that `Harry was also role-playing while he engaged in conversations with Officer Andrews.’



The `Kellie’ emails directly address McMillan's reason for placing the craigslist ad. McMillan said he did it to catch a molester, but the `Kellie’ emails cannot be explained that way. In them, McMillan thought he was dealing directly with a minor, and his intent to arrange a sexual encounter is unmistakable. This was a far cry from propensity evidence; it was evidence of a course of action in which McMillan was engaged at precisely the same time as his emails with `Mike.’ . . . [O]ne could say that the element the government was trying to prove was intent, and that the `Kellie’ emails were relevant to that issue under the standards set forth in Federal Rule of Evidence 401.



U.S. v. McMillan, supra. 



The court then explained that the analysis above



takes us to Rule 403 (or part four of the traditional test), which permits the court to `exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice. . . .’ Whether that concept appears as the fourth element of the test for Rule 404(b) evidence, or it stands on its own, makes little difference for McMillan.



Either way, the district court should make the assessment that Rule 403 calls for. In this case, unfortunately, the district court did not formally do so. We have urged district courts to make their findings explicit, especially when evidence is as sensitive as the `Kellie’ emails are. . . .Nonetheless, accepting for the sake of argument that the district court erred here by skipping over that step too quickly, we must still consider whether any such error was harmless.



U.S. v. McMillan, supra. 



The Court of Appeals then found that, given the

limited number of `Kellie’ emails the government used and the directness of their relevance, we cannot say that it is clear that the district court would have opted for exclusion had it looked more carefully at Rule 403. Indeed, our prediction is the opposite: the `Kellie’ emails refuted McMillan's proffered justification for his actions, and so even though they are prejudicial, the balance tips decisively for admission.



The government did not get carried away with this evidence, as it has done in some other cases. . . . In short, although the district court should have weighed the probative value of the `Kellie’ evidence against its prejudicial effect, its failure to do so in the circumstances of this case was harmless. These considerations also assure us that the admission of the `Kellie’ evidence did not violate McMillan's due process right to a fair trial.

U.S. v. McMillan, supra. 



For these and other reasons, the Court of Appeals affirmed McMillan’s conviction and sentence.  U.S. v. McMillan, supra.