Bivens Claims & IP Addresses

This post is about a civil action brought by a prisoner who was convicted of crimes involving child pornography and who is currently incarcerated. The case is Christie v. MacFarlane, 2009 WL 3536550 (U.S. District Court for the District of New Jersey 2009), and it involved what is known as a Bivens claim.

Bivens claims are brought under the U.S. Supreme Court’s decision in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). As Wikipedia explains, in Bivens the U.S. Supreme Court held that

an implied cause of action existed for an individual whose 4th Amendment freedom from unreasonable search and seizures had been violated by federal agents. The victim of such a deprivation could sue for the violation of the Amendment itself, despite the lack of any federal statute authorizing such a suit. The existence of a remedy for the violation was implied from the importance of the right violated.

The Bivens Court therefore reversed the district court’s order dismissing Biven’s claim on the grounds that it failed to state a legally cognizable cause of action. Bivens v. Six Unknown Named Agents, supra. As I’ve noted, a defendant in a civil case can, if the facts and law warrant doing so, file a motion to dismiss the plaintiff’s claim for failure to state a cause of action. In the federal system, such a motion is filed under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion asserts that even if the facts the plaintiff alleges are correct, he/she/it has no cognizable claim under the law; if the trial court finds that to be true, the judge will dismiss the claim, often ending the case.

That brings us back to Christie v. MacFarlane. In his complaint, Russell Christie (“Plaintiff”) alleged that

Special Agents Douglas MacFarlane and Bernard Riedel, Jr., in connection with a criminal investigation of Plaintiff, failed to follow procedures set forth in 18 U.S. Code § 2518 for interception of electronic communications, including failure to obtain advance judicial approval for the interceptions. More specifically, Plaintiff alleges that Agents MacFarlane and Riedel unlawfully accessed the NAMGLA [North American Man Girl Love Association] website, in April and June 2006, using an administrator level log-on provided by the website administrator, to “harvest” Internet Protocol addresses, including the IP address for a poster using the username `franklee,’ attributed by the government to Plaintiff.

Christie v. MacFarlane, supra. The defendants seem to have filed a Rule 12(b)(6) motion to dismiss this claim, since that’s the issue the court addresses in this opinion.

From the language in this paragraph, it would seem that Christie is basing his cause of action on the alleged violation of § 2518, a federal statute, instead of on a violation of the 4th Amendment. According to the district court’s opinion, though, he’s arguing that what the agents did violated the 4th Amendment and § 2518. Since another federal statute (18 U.S. Code § 2520) creates a cause of action for those whose communications have been intercepted in violation of § 2518, it seems the reference to § 2518 is either surplusage or was included to buttress the 4th Amendment claim (on the premise that the Wiretap Act, of which § 2518 is a part, is based on the 4th Amendment). I’m assuming it’s the latter, since this allegation is the basis of a Bivens claim and Bivens claims necessarily arise under the 4^th Amendment.

This wasn’t the first time Christie argued that the agents’ “harvesting” his IP address violated the 4^th Amendment. He made the same argument in a motion to suppress evidence in his criminal case. He lost on that argument because, as I explained in an earlier post, he based it on a decision of the Appellate Division of the Superior Court of New Jersey; the problem was, as I explained in the earlier post, that a decision of a state court is not binding on a federal court. The federal district court judge therefore applied decisions of other federal courts – which, as I noted, have for the most part held that the 4^th Amendment doesn’t protect IP addresses – and denied the motion to suppress. According to this news story, Christie was convicted in November of 2008 and, on June 24, 2009, was sentenced to serve 90 years.

Now, you might think that the federal district judge to which Christie’s Bivens action was assigned would simply cite the other federal judge’s decision denying the motion to suppress and use that as the basis for dismissing Christie’s Bivens claim. That may seem to make a great deal of sense given that the same law and same facts are at issue in both; the apparent problem is that one case is a civil case and one is a criminal case. They are therefore not the same proceeding, i.e., not the same case under the law.

Since there are two different cases, a court can’t simply say that, “well, you lost on that issue in the other case, so you lose on it here, as well.” It’s more complicated than that.

The federal judge who had Christie’s civil case therefore began his analysis of whether the claim should be dismissed under Rule 12(b)(6) by applying the rule the Supreme Court applies whenever a defendant in a criminal case files a civil suit claiming unconstitutional conduct in the investigation or prosecution of the criminal case. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that when someone who is a criminal defendant or who has been convicted of a crime files a civil rights suit seeking damages, the district court judge to whom the case is assigned

must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction . . .; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction . . . has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck v. Humphrey, supra. The Humphrey Court also held that a civil rights cause of action for damages “attributable to an unconstitutional conviction . . . does not accrue until the conviction . . . has been invalidated.” Under Humphrey, Christie’s Bivens claim wouldn’t accrue (i.e., wouldn’t come into existence) unless and until his conviction on the child pornography charges (which was based in part on the IP address evidence) was overturned by a higher court.

The Humphrey principle applied to Christie’s Bivens claim because if the federal judge who was assigned his civil suit held that what the agents did violated the 4^th Amendment, that decision “would necessarily imply the invalidity of his conviction” on the child pornography charges. Since the child pornography conviction was, in part, based on the IP address evidence, and since that evidence couldn’t have been used in the criminal case if it had been obtained in violation of the 4^th Amendment, the civil court would in effect be saying that the criminal conviction was invalid.

The judge assigned Christie’s civil suit therefore declined to address his Bivens claim:

Plaintiff presented this claim, twice, unsuccessfully, to the court in his criminal proceeding. . . . Based upon the Opinions denying Plaintiff's motions in the criminal case, it appears that all evidence supporting Plaintiff's convictions flows from the identification of Plaintiff as a particular user of the NAMGLA website, `franklee.’ Thus, it appears that a favorable outcome in this proceeding, with respect to this claim, would necessarily imply the invalidity of Plaintiff's criminal conviction. In addition, the appeal of the conviction remains pending in the Court of Appeals for the Third Circuit. Accordingly, this claim must be stayed. . . .

Should Plaintiff wish to pursue this claim, he must so advise the Court by filing a motion to re-open this matter within 60 days after his conviction has been `invalidated’ by reversal on direct appeal, issuance of a collateral order, or otherwise.

Christie v. MacFarlane, supra.

I actually don’t see why this court couldn’t dismiss Christie’s Bivens claim based on the doctrine of collateral estoppel. As Wikipedia notes, collateral estoppel is a legal doctrine that “prevents a person from relitigating an issue” even when the issue arises in two different cases. And as Wikipedia at least implicitly notes, collateral estoppel is usually applied when the case are of the same type, i.e., civil-civil or criminal-criminal.

Years ago, I wrote a law review article arguing that it can, and should, apply in “cross-over” cases, i.e., cases in which a ruling in a civil case bars relitigation of an issue in a criminal case or in which a ruling in a criminal case bars relitigation of an issue in a civil case. As I explained, it’s much harder to use a civil ruling to block litigation of an issue in a criminal case than it is to use a criminal ruling to block litigation of an issue in a civil case.

Since I wrote the article – which referred to this principle as “cross-over estoppel” – a number of courts have applied the principle. A Vermont trial court, for example, held that a plea in criminal case could be used to estop litigation of an issue in a civil case. See Normandy v. Martin, 2005 WL 6199161 (Superior Court of Vermont 2005). So, I don’t see why the decision in the criminal case couldn’t have been used to bar Christie from raising a Bivens claim based on exactly the same law and facts. Since the issue in both cases was purely an issue of law, the different burdens of proof (i.e., beyond a reasonable doubt versus preponderance of the evidence) wouldn’t matter in this context.

I assume the problem with doing this is that Christie's conviction was still in the process of being appealed and that his appeal encompassed the actions that provided the basis for his Bivens claim. So his conviction, unlike the conviction that resulted from the plea in the Martin case wasn't absolutely final. I'm not sure that would bar the use of cross-over estoppel here: If the conviction was reversed on other grounds, the reversal wouldn't revive this Bivens claim. If the conviction was reversed on the basis that the agents violated existing law by "harvesting" the IP addresses, that decision should revive Christie's Bivens claim because it would at least implicitly reverse this court's ruling on the Rule 12(b)(6) motion. If it was reversed because the Court of Appeals decided that what the agents did should violate the law but did not violate the law as existed when they "harvested" the IP addresses, I don't think the reversal could revive Christie's Bivens claim.

I'm probably making too much of this. The existing approach is probably eaiser to apply.

Access? Disruption?

As I explained in a post I did several years ago, the U.S. federal government and every U.S. state (and many other countries) make it a crime to “hack,” i.e., to gain access to a computer or computer system without being authorized to do so. As I explained, it can sometimes be difficult to determine whether what happened constituted “access,” or not.

This post is about a case in which the issue of gaining “access” to a computer came up in a rather unusual context. The case is Swearingen v. Haas Automation, Inc., 2009 WL 3818362 (U.S. District Court for the Southern District of California 2009). As is probably obvious from the case caption, it’s a civil case. It is also, in effect, a criminal case, since one of the plaintiff’s claims arises under the California computer crimes statute.

Before we get into the substance of the case, I should probably explain a bit about why a case raising a claim under a California statute was filed in a federal district court. As Wikipedia explains, U.S. federal courts have two kinds of jurisdiction, i.e., two sources of authority to hear civil cases. One is federal question jurisdiction, which lets them hear cases that present issues arising under federal law. The other is diversity jurisdiction which, as Wikipedia notes, “is a form of subject-matter jurisdiction . . . in which a United States district court (the trial courts of general jurisdiction in the federal judiciary) [can] hear a civil case because the persons that are parties are ‘diverse’ in citizenship”, i.e., they are citizens of different U.S. states or one or more of them is a non-U.S. citizen.

And that brings us to the facts in Swearingen v. Haas, as set forth in the plaintiff’s (Swearingen’s) Second Amended Complaint (SAC):

Haas . . .. manufactures machine tools which consist of four major product lines: vertical machining centers (VMCs), horizontal machining centers (HMCs), CNC lathes and rotary tables. These machines sell for over $30,000 up to hundreds of thousands of dollars.

Haas advises potential customers to purchase Haas machines from Haas Factory Outlets around the United States, including the Haas Factory Outlet located in Anaheim, California, which is a division of defendant Machining Time Savers, Inc. (`MTS’). Haas recommends that potential customers finance their purchase through various entities, including defendants HAI Capital (`HAI’) and CNC Associates, Inc (`CNC’). . . .

All Haas machines are manufactured to trigger a `lock out’ alarm (displayed as an error code of `144’) after 800 hours of logged use. If a Haas distributor does not provide the machine operator with an access code within the defined time period, the machine shuts down and will not operate. Only if a customer is completely up to date on all payments and in compliance with all terms in the agreement(s) will Haas allow its distributors to provide the customer with an access code that will permit another 800 hours of use. If a customer is not up to date on payments or not in compliance with applicable terms, the Haas distributor will not provide an access code. . . .

Plaintiff purchased his first Haas machine from MTS in 1998. The manual . . . provided:

This machine is equipped with an electronically-recorded serial number that cannot be altered. This is done in case of theft and to track machines when sold to other owners. After approximately 800 hours of use, the machine will automatically shut down if it has not been unlocked by Haas Automation. To unlock the machine, we must have the above registration with the serial number and the authorization from your dealer. . . .

Plaintiff believed the . . . lock-out mechanism was for his own protection and benefit. When Plaintiff got the error message on this first machine, Plaintiff called MTS and received the code that unlocked the machine for another 800 hours. Plaintiff called MTS eight or nine more times to obtain access codes. . . .

In 2000, Plaintiff bought a second Haas machine. Again, Plaintiff continued to get the 800 hour error code but was always provided with the access code and was never told that the code was being used for collection purposes.

In 2007, Plaintiff bought a third Haas machine. . . . [which he] financed through CNC. In April 2009, Plaintiff fell behind in his payments. He was advised for the first time that if he did not bring his account current, he would `be denied further requests for a time code for the Haas equipment.’ . . . Plaintiff was able to bring his account current, however, `during this time, his machine was shut down twice over the weekend, causing production to stop until Monday and causing delay in satisfying contracts.’

Swearingen v. Haas, supra. Swearingen’s second amended complaint asserted two claims against the defendants, one of which arose under California’s Comprehensive Computer Data Access and Fraud Act, codified as California Penal Code § 502. In this opinion, the federal judge to whom the case is assigned is ruling on the defendants’ Rule 12(b)(6) motion to dismiss this claim as legally flawed. Swearingen v. Haas, supra.

The judge began his ruling on the motion by noting that Swearingen claimed that the defendants’ “use of the lock-out code without disclosure or consent constitutes a violation of” California Penal Code § 502”, “specifically subsections (c)(1) and (c)(5), which make it a crime to do either of the following:

(1) Knowingly access[] and without permission alter[], damage[], . . . or otherwise use[] any data, computer, computer system, or computer network . . . to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data. . . . .

(5) Knowingly and without permission disrupt[s] or cause[s] the disruption of computer services or den[y] or cause[] the denial of computer services to an authorized user of a computer, computer system, or computer network.

California Penal Code § 502. While § 502 is fundamentally a criminal statute, it also creates a civil cause of action that lets one injured by a violation of § 502(c) “bring a civil action against the violator for compensatory damages and injunctive relief”. California Penal Code § 502(e)(1). Swearingen’s theory, then, is that it was injured by a violation of one of these subsections of § 502 which was carried out or caused by the defendants and which therefore entitled it to recover damages for what it had lost.

The opinion doesn’t explain the substance of the motion to dismiss this claim, but I think we can gather what it said from what this court said when it granted the motion:

[T]he facts alleged by Plaintiff do . . . . establish that any of the Defendants `accessed’ the computer in Plaintiff's machine. `Access’ is defined as `to gain entry to, instruct, or communicate with the logical, arithmetical, or memory function resources of a computer, computer system, or computer network.’ Cal. Penal Code § 502(b)(1). Because the lock-out mechanism was . . . programmed into the machine at the time it was manufactured, Defendants did not have to `access’ the machine's computer to cause the machine to shut down after 800 hours.

With respect to subsection (c)(5), Plaintiff fails to state a claim because he does not allege Defendants refused to provide him the access code because he was behind in payments, resulting in his machine shutting down. Plaintiff knew he would need to obtain an access code to unlock the machine after approximately 800 hours of use. What he allegedly did not know was that Defendants might refuse him the code if he was behind in payments. If Defendants actually refused to give him the code because he was behind in payments, any resulting disruption in service would arguably be `without permission.’ In contrast, if Plaintiff's machine became locked after 800 hours of use and Plaintiff was given the code upon requesting it, any period of inoperation before the access code was obtained would not constitute an impermissible disruption of service. . . .

Plaintiff's allegations . . . do not make it clear whether he was ever denied the code because he was behind in payments. It seems any disruption in operations was due to Plaintiff not seeking the code before the weekend. . . [T]he SAC explains, `If the warning goes off during a long weekend, the machine will shut down and the owner will be unable to get in touch with anyone to provide the unlock code. This would result in no production for that entire weekend.’ A weekend shut-down under these circumstances would be an inconvenience . . . but would not be the result of Defendants impermissibly withholding the code to compel payments.

Swearingen v. Haas, supra. The judge also noted that Swearingen implicitly conceded that the defendants “never refused to give him the code, arguing, `[I]t is the entire racket that is being challenged – whether or not the code is ever withheld. . . . Every time a 144 lockout occurs, it is caused by this unlawful motivation intended to circumvent the . . . legal collections system.’” Swearingen v. Haas, supra. The judge therefore granted the motion to dismiss the claim because it found Swearingen knew that the machine would

lock after 800 hours of operation, requiring an access code to unlock it. Unless Defendants refused to give Plaintiff the code . . . to compel payments . . . any disruption in operations was not `without permission’ and did not violate” California Penal Code § 502(c).

Swearingen v. Haas, supra.

I found the “access” and “disrupt” issues interesting, given the context in which they arise. I did a little research and couldn’t find any similar cases, at least not cases that generated reported opinions.

Courtroom Tweets?

I did a post earlier this year on how courts are trying to discourage jurors from using the Internet (including Twitter) during trials. As I explained, the concern here is that jurors will use these resources to conduct their own investigations into issues involved in a trial, which violates the premise that a jury should only decide a case based on evidence that was properly admitted during the trial.

This post is about a different use – or proposed use – of Twitter. The proposal came up in connection with the then-upcoming trial in U.S. v. Shelnutt, U.S. District Court for the Middle District of Georgia (Case No. 4:09-CR-14). As this news story explains, criminal defense attorney J. Mark Shelnutt was charged with conspiring to launder drug money and with 31 counts of money laundering. His trial began in early November of this year.

Prior to trial, a reporter for the

Columbus Ledger-Enquirer newspaper . . . requested that he be allowed to use his handheld electronic device ( e.g., a BlackBerry or cellular telephone) during the trial of the above-captioned criminal case to send electronic messages describing the court proceedings directly from the courtroom to his newspaper's `Twitter’ website. The messages, called `tweets,’ would then be available to any member of the general public who accessed the newspaper's Twitter website.

U.S. v. Shelnutt, 2009 WL 3681827 (U.S. District Court for the Middle District of Georgia 2009). According to this opinion, Shelnutt objected to the request but the prosecution took “no position on the issue, leaving it to the Court’s discretion.” U.S. v. Shelnutt, supra.

The federal district judge to whom the case was assigned denied the request because he found that “Rule 53 of the Federal Rules of Criminal Procedure prohibits `tweeting’ from the Courtroom and that Rule 53 does not unconstitutionally restrict the freedom of the Press under the First Amendment”. U.S. v. Shelnutt, supra.

Since this is presumably the first case in which this issue has arisen (it’s the only one I can find), the judge didn’t literally mean that Rule 53 prohibits sending tweets while a court is in session. Instead, the judge found that tweeting falls within the more general prohibitions contained in Rule 53.

Here is what Rule 53 of the Federal Rules of Criminal Procedure says:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

The rule dates back to 1944, but has been amended on several occasions. According to one law review article, it has its origins in events that occurred in the 1930s:

[H]igh profile nineteenth-century court proceedings were `. . . conducted in carnival-like atmospheres, attended by thousands of spectators, and received saturation press coverage.’ These trials were the subject of `mass interest and entertainment,’ thereby raising `concern for the rights of defendants. . . . [C]riticism of the sensational and highly disruptive media coverage surrounding the 1935 trial of Bruno Hauptmann, the alleged kidnapper and murderer of the infant son of Charles Lindbergh, precipitated the nationwide regulation of court reporting and near ban of photographic trial coverage. Some accounts of the proceedings asserted that over 830 individuals affiliated with various media organizations were present at the courthouse to cover the trial, resulting in frequent disruptions at the trial.

Henry F. Fradella & Brandon Burke, From the Legal Literature, 43 Criminal Law Bulletin (2007) (notes omitted). The abuses of the Lindbergh trial prompted the American Bar Association to appoint a Special Committee on Publicity in Criminal Trials at its 1935 convention. Fradella & Burke, supra. The committee, which consisted of 12 reporters and 5 lawyers, reported back to the ABA at its 1937 convention. Daniel Stepniak, A Comparative Analysis of First Amendment Rights and the Televising of Court Proceedings, 40 Idaho Law Review 315 (2004).

“While the Committee's recommendations revealed a reluctance to impose a total prohibition on cameras, the Committee appeared to ultimately concede that in its then current state, recording equipment tended to distract trial participants from their primary task.” Stepniak, supra. As a result, the convention adopted Canon 35 of the ABA Code of Judicial Ethics, which provided as follows:

`Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the courtroom during sessions of the court or recesses between sessions, and the broadcasting of court proceedings are calculated to detract from the essential dignity of the proceedings, degrade the court and create misconceptions with respect thereto in the minds of the public and should not be permitted.’

Stepniak, supra. According to both sources, the original version of Rule 53 was adopted to implement the provisions of Canon 35 in federal court proceedings.

And that brings us back to Shelnutt and to Twitter. The judge in the Shelnutt case found that the

term `broadcasting’ in rule 53 includes sending electronic messages from a courtroom that contemporaneously describe the trial proceedings and are instantaneously available for public viewing. Although `broadcasting’ is typically associated with the dissemination of information via television or radio, its plain meaning is broader than that. The definition of `broadcast’ includes `“casting or scattering in all directions”’ and `“the act of making widely known.”’ Webster's Third New International Dictionary (Unabridged) 280 (1993). It cannot be reasonably disputed that `twittering’ . . . would result in casting to the general public and thus making widely known the trial proceedings. Moreover, it appears clear that the drafters of Rule 53 intended to extend the Rule's reach beyond the transmission of trial proceedings via television and radio.

Prior to . . . 2002 . . . the Rule . . . prohibited the `taking of photographs’ and `radio broadcasting.’ Fed.R.Crim.P. 53 (1946) (amended 2002) (emphasis added). The 2002 Amendments eliminated the modifier `radio’. . . . [A]lthough although the Advisory Committee's notes state that the Committee did not consider the change to be substantive, the . . . Committee made the change with the intention that additional types of broadcasting would be covered by the Rule. See Fed.R.Crim.P. 53 advisory committee's note (`Given modern technology capabilities, the Committee believed that a more generalized reference to ‘broadcasting” is appropriate.’)

Based on the foregoing, the Court finds that the contemporaneous transmission of electronic messages from the courtroom describing the trial proceedings, and the dissemination of those messages in a manner such that they are widely and instantaneously accessible to the general public, falls within the definition of `broadcasting’ as used in Rule 53. Therefore, this type of broadcasting is prohibited under Rule 53, unless the application of Rule 53 is unconstitutional because it unduly restricts the freedom of the press under the First Amendment.

U.S. v. Shelnutt, supra. I’m not going to get into the First Amendment issue for two reasons: One is space; I don’t have enough to do that issue justice in this post. The other reason is that I can see a good argument, given Supreme Court precedent in this area, that there is not a First Amendment problem (which doesn’t mean, maybe, that there shouldn’t be . . . but that’s another post).

What I want to focus on is this court’s analysis of why Rule 53 bars tweeting during a trial. From the analysis in the law review articles cited above, I gather that the real purpose of Canon 35 and Rule 53 is to prevent media from disrupting court proceedings. Stepniak, for example, says “as many as 141 newspaper reporters and photographers, 125 telegraph operators, and 40 messengers” were simultaneously present “in the courtroom” during the Hauptmann trial. Stepniak, supra. The judge in that trial seems to have imposed some restrictions on taking photographs and recording newsreel images during the proceedings, but some of the media seem to have violated those restrictions. Stepniak, supra.

The underlying concern, then, is that broadcasting (in particular) is barred not because it allows information about the proceedings to be “widely and instantaneously accessible to the general public,” but because the practical aspects of implementing a radio or TV broadcast threaten to disrupt the proceedings and/or distract the jurors. A blanket ban on broadcasting may have been the best (or only) way to address that concern in the 1930’s and even in the 1950s, but the increased sophistication of modern technology no longer justifies equating broadcasting with disruption. As the Fradella & Burke article notes, 47 states currently allow at least some TV access to court proceedings. And in 1981, the U.S. Supreme Court found that just as the risk of “juror prejudice . . . does not justify an absolute ban on news coverage of trials by the printed media”, the risk of “such prejudice does not warrant an absolute constitutional ban on all broadcast coverage” of court proceedings. Chandler v. Florida, 449 U.S. 560 (1981).

I could go on, but I suspect I’ve pretty much made my point. I don’t see why a reporter tweeting during a criminal trial is any more disruptive than letting a reporter take notes by hand or on a laptop during a trial . . . or letting an artist create sketches that will later be broadcast to the public via television.

(Oh, and while it's not relevant to this post, according to this story the jury acquitted Shelnutt on all charges.

Fail-Safe Argument

A Mississippi court recently addressed what, as far as I can tell, was a novel computer forensics argument. The case is Renfrow v. State, 2009 WL 3740656 (Mississippi Court of Appeals 2009).

We’re really not concerned with the facts in this case. Suffice it to say that Rubin Renfrow was charged with possessing child pornography after children who were related to him and had visited his home said he had touched them inappropriately and shown them child pornography. Renfrow v. State, supra. The county sheriff’s department got a warrant to search his home and seize his computer; the sheriff’s deputies who seized the computer delivered it “to the Mississippi Attorney General’s Cyber Crime Unit (the Cyber Crime Center), where forensic investigators Sherita Sullivan and Keith Leavitt examined” it. Renfrow v. State, supra.

Prior to trial, Renfrow filed several motions to suppress evidence obtained from the hard drive of his computer; the trial court denied all of them. Renfrow v. State, supra. Renfrow went to trial on the child pornography charge and was convicted. On appeal, he argued that the trial court erred when it denied his motions to suppress evidence. Renfrow v. State, supra. We’re only going to focus on one of those motions.

Prior to trial and again on appeal, Renfrow argued that the trial court “should have suppressed the evidence that was obtained from his computer because the Cyber Crime Center did not have adequate fail-safe systems to protect the integrity of his original hard drive.” Renfrow v. State, supra. From what?, you ask. Well, in related motions to suppress Renfrow claimed that (i) his original hard drive “might have been exposed to virus contamination while it was in the State’s custody” and (ii) Leavitt found “two `bad sectors’ on Renfrow’s original hard drive”. Renfrow v. State, supra.

The Court of Appeals found that the trial court correctly denied the “virus contamination” motion because while there was “some testimony that there were viruses, spyware, adware or `Trojan’ programs” on the hard drive, “there was no evidence that those items first appeared on the original hard drive while it was in the State’s custody.” Renfrow v. State, supra. The Court of Appeals therefore held that the “only reasonable inference” was that “those items were on Renfrow’s oringal hard drive” when the sheriff’s deputies seized it. Renfrow v. State, supra. The Court of Appeals also noted that the “State’s expert witnesses testified that their use of a `write-blocker’ prevented any alternations to Renfrow’s original hard drive” and he did not present any evidence to the contrary. Renfrow v. State, supra.

The Court of Appeals reached essentially the same conclusion with regard to Renfrow’s “bad sectors” motion to suppress. The court found there was “no evidence that the `bad sectors’ were damaged during the time Renfrow’s hard drive was in the custody of the . . . Sheriff’s Department or the Cyber Crime Center”. Renfrow v. State, supra. It also noted that the two Cyber Crime Center analysts (Sullivan and Leavitt) testified that the Center’s “first priority was to maintain the integrity of the original hard drive”. Renfrow v. State, supra. The court found that “Renfrow’s claim under this heading is entirely meritless” and upheld the denial of his motion to suppress. Renfrow v. State, supra.

And that brings us back to what we’re really concerned with: the fail-safe motion to suppress. On appeal, Renfrow argued that the trial court

should have suppressed the evidence that was obtained from his computer because the Cyber Crime Center did not have adequate fail-safe systems to protect the integrity of his original hard drive.

Renfrow v. State, supra. I wish I could give you more details about Renfrow’s argument here, but I don’t have access to the appellate briefs in the case (via Westlaw or the Court of Appeals’ website) so this is all I know about the factual and technical bases of the argument. It looks, as I noted earlier, like this argument may have been the omnibus claim that encompassed and attempted to justify the “bad sectors” and “virus” claims. But that’s just speculation on my part.

What I do know is that this argument failed, just like the “bad sectors” and “virus” claims. This is what the Court of Appeals had to say about it:

Investigator Gunter [the Sheriff’s Department investigator who executed the warrant at Renfrow’s home and seized his computer] testified that Renfrow's computer was off when he first encountered it in Renfrow's home. Investigator Gunter simply unplugged Renfrow's computer when he seized it. He did not turn on Renfrow's computer to prevent the possibility of any alterations to Renfrow's hard drive. He placed evidence tape over the plug ports to the computer to prevent anyone from hooking the computer up and turning it on.

Sullivan and Leavitt testified in great detail regarding the Cyber Crime Center's fail-safe systems. They described how each aspect of the Cyber Crime Center's fail-safe systems and the investigative process were designed specifically to protect the integrity of an original hard drive. Sullivan removed the original hard drive and placed a write-blocking device on it to prevent any alterations to the original hard drive. Sullivan made an exact copy of the hard drive and examined the copy. The intended purpose behind examining the copy was to protect the integrity of the original hard drive. Leavitt made a similar duplicate copy for Renfrow's expert to examine. Again, the specific purpose of making a copy was to protect the integrity of the original evidence. Renfrow's attorney wanted to boot up the original hard drive so his expert could examine it. The State opposed Renfrow's request and explained that booting up the original hard drive would destroy the integrity of the original evidence. Suffice it to say, every step of the State's procedure to gather evidence from the original hard drive was designed to protect the integrity of the evidence. This issue, like the other two under this heading, is meritless.

Renfrow v. State, supra.

I haven’t seen any other reported cases that raise the “bad sectors” and “fail-safe” claims (the Trojan horse/virus stuff has, of course, been around for quite a while). I thought the claims might be interesting when I first ran across this case, but they seem to have been thrown out almost randomly.

As the Court of Appeals noted, Renfrow never pointed to any specific evidence showing that the investigators were responsible for the bad sectors and/or for the malware on his hard drive. In other words, he never linked either to the officer who seized his computer or the forensics analysts who examined it at the Cyber Crime Center. And he never explained how either had anything to do with the child pornography on his hard drive; basically, the virus and bad sector arguments seem to have been purely “might have” arguments, the kind of murky, technology-conspiracy-theory stuff that might work with a jury, especially a jury that wasn’t particularly tech-savvy. Here, though, it seems to have been pretty much a waste of time.

I don’t know if Renfrow can, or will, appeal to the Mississippi Supreme Court. I suspect the case is over. I don’t see anything that would justify appealing to the U.S. Supreme Court or that court’s taking the case if Renfrow were to try.

And fyi, maybe: On May 2, 2008 Renfrow was sentenced to serve 15 years in prison for the conviction on the child pornography charge. According to the Mississippi Attorney General’s press release, he was then 72 years old and a retired teacher; the press release says he “taught school for 30 years in the Pearl and Jackson Public Schools.” I assume he was out on bond pending outcome of the appeal but is or will soon be starting to serve his prison sentence.

Electronic Indictment Issues

A recent decision of the U.S. Court of Appeals for the Sixth Circuit addresses an issue I, for one, hadn’t run across before.

The case is U.S. v. Simms, 2009 WL 3617543 (2009). And to put the issue the case addressed into context, I need to explain what Simms was charged with and how the charge arose.

Simms was charged with, and convicted of being a felon in possession of a firearm in violation of 18 U.C. Code § 922(g)(1). U.S. v. Simms, supra. The charge arose from these facts:

On November 9, 2005, Antrown Simms led Ohio adult parole officers on a short foot chase through a neighborhood in Mansfield, Ohio. He was eventually apprehended with a large amount of marijuana on his person and taken to the Richland County jail. During the chase, Simms passed by St. Peter's High School and, according to officers, appeared to alter his course as if to hide something. The following day a student at St. Peter's School notified a teacher that he spotted a firearm in the school's parking lot. The school in turn notified the Mansfield Police Department, which collected the firearm.

U.S. v. Simms, supra.

The authorities connected Simms to the firearm “through a series of recorded phone conversations that he place to the home of his girlfriend while he as an inmate at the Richland County jail.” U.S. v. Simms, supra. The details of the phone conversations aren’t relevant to this discussion; suffice it to say that Simms’ girlfriend told him her sister, who attended St. Peter’s School, came home and said that one of the children at the school had found Simms gun and given it to a teacher, who called police. U.S. v. Simms, supra. As the opinion notes, the “jail was in the habit of recording inmates’ phone conversations”, and so captured this particular one. U.S. v. Simms, supra.

That brings us to the issue Simms raised in appealing his conviction on the § 922(g)(1) charge, which was a federal charge Though local police initially investigated the matter, it became a federal case; a federal grand jury indicted Simms for violating § 922(g)(1). U.S. v. Simms, supra.

As Wikipedia explains, a grand jury decides if “there is enough evidence [of criminal wrongdoing] for a trial. Grand juries carry out this duty by examining evidence presented to them by a prosecutor and issuing indictments”. The grand jury was created in 1166 by the Assize of Clarendon, a decree issued by the English King Henry II; the Assize created a new, larger (“grand”) jury to bring criminal charges that would then be tried by the smaller (“petit”) jury. At common law and in the federal system today, the grand jury consists of 16-23 jurors, while the trial jury consists of 12 jurors.

As Wikipedia notes, the Fifth Amendment to the U.S. Constitution requires that charges for “capital or infamous crimes” (e.g., felonies) be brought by a grand jury; the charging document the grand jury returns is known as an indictment. Since the Supreme Court has held that this clause of the Fifth Amendment only binds the federal government, the states can use grand juries and indictments or they can bring charges by other means; the most commonly used alternative is an “information,” which is a set of charges that is brought by a prosecutor, rather than by a grand jury.

To “return” an indictment (i.e., to find that the prosecutor has shown probable cause to believe the defendant(s) named in the indictment committed the crimes charged therein), at least 12 of the 16-23 grand jurors must vote for the indictment. (A federal grand jury can deliberate and vote as long as 16 jurors are present; if more are present, that works, too.) If 12 or more grand jurors vote to return the indictment, the grand jury’s foreperson “must return the indictment to a magistrate judge in open court”. Rule 6(f) of the Federal Rules of Criminal Procedure.

Historically, after the paper indictment was returned to the magistrate judge, it was given to the Clerk of that federal district court; the Clerk would then use the indictment to open the criminal file in the case (the contents of which would, of course, all be hard copy). A few years ago, federal courts began switching to electronic filing; as part of the switch, they adopted local “electronic case filing” (ECF) rules. Here’s how one federal district court’s rule explains the process of electronically filing an indictment:

Indictments must be filed by the U.S. Attorneys Office on a disk or CD-ROM containing the documents in PDF format and must be accompanied by a paper copy of the documents. . . . The original indictment signed by the foreperson shall be returned by the foreperson to a District Judge or Magistrate Judge in open court at the conclusion of the grand jury session. The original indictment shall be retained in the files of the Court.

U.S. District Court for the Easter District of Tennessee, Electronic Case Filing Rules and Procedures § 4.6 (2009).

And that brings us back to the issue in U.S. v. Simms, supra. At trial, Simms’ lawyer

pointed out a flaw in the electronic indictment filed with the district court. . . . [T]he indictment used at trial -- and the only one available to Simms -- contained an offense date of August 15, 2006. However, all of the evidence presented at trial . . . focused on the foot chase of November 9, 2005. Apparently, the original indictment returned by the grand jury contained an offense date of November 9, 2005, but the date was mistakenly changed to August 15, 2006, when the indictment was electronically filed.

U.S. v. Simms, supra. The district court judge in charge of the trial “apparently viewed the original indictment” returned by the grand jury and found it contained “an offense date of November 9, 2005”. U.S. v. Simms, supra. He therefore found that Simms was not prejudiced by the mistake; in instructing the jury, the trial judge used the November 2005 date. U.S. v. Simms, supra. The jury convicted Simms and he was sentenced to serve 100 months in prison. U.S. v. Simms, supra.

On appeal, Simms claimed “he was deprived of his Sixth Amendment right to notice of the charges against him because the electronic indictment contained an incorrect offense date.” U.S. v. Simms, supra. He seems to have argued that the error constituted either a constructive amendment of the indictment or a variance. U.S. v. Simms, supra.

Basically, both a constructive amendment and a variance involve a disconnect between the words used in an indictment and the evidence presented at trial. U.S. v. Simms, supra. The concern, in both regards, is that the defense will be prejudiced because they prepared to disprove one set of allegations and were then confronted with claims that differ, in varying degrees and varying ways, from that set of allegations. So essentially what Simms argued on appeal was that the error in the indictment prejudiced his ability to present an effective defense to the charges against him. U.S. v. Simms, supra.

The Sixth Circuit didn’t agree. It found that while the “government was clearly sloppy in its prosecution of this case,” the error in the indictment didn’t result in a violation of Simms’ Sixth Amendment to notice of the charges against him. U.S. v. Simms, supra. The Court of Appeals noted that “all of the references” to the crime during the trial “used the November 2005 date.” U.S. v. Simms, supra. It also noted that the government read “a correct version of the indictment, containing the November 5 offense date, during its opening statements.” U.S. v. Simms, supra. These factors, plus the facts that Simms was “apprised of the correct offense date” during pretrial discovery and that the jury was instructed on the correct date, led the court to hold that the mistake did not constitute reversible error. U.S. v. Simms, supra.

This is the only case I’ve found, so far, in which the use of electronic filing in a criminal case resulted in a challenged to a conviction. A somewhat similar argument seems to have come up in U.S. v. Pegross, 2007 WL 1771542 (U.S. District Court for the Eastern District of Michigan 2007), but it doesn’t seem to have gone anywhere. In Pegross, the defendant’s attorney claimed that the

electronic filing of the indictment and signature of the grand jury foreperson is inadequate. Defendant also filed a motion seeking copies of the original indictment; he alleges the Government engaged in abusive practices by not providing a copy and that the indictment perhaps has been altered.

U.S. v. Pegross, supra. The district court judge in that case said he was going to examine the indictment, along with defense counsel and the prosecutor, to ensure that there had been no alteration. He found that this would safeguard the defendant’s rights and also found there was “no evidence that the Government intentionally withheld the original charging documents or engaged in abusive practices.” U.S. v. Pegross, supra.

Bottom line: It seems there may occasionally be glitches due to the way electronic filing is working at this point. The problem seems to be that there can occasionally be errors as a result of transferring/moving from the original paper indictment to the electronic version (for some reason I don’t quite understand). I assume it’s going to be a transient problem that will resolve itself as the electronic filing process becomes better established.