Child Pornography and Criminal Forfeiture

This post is about a forfeiture order entered in a federal child pornography prosecution. As Wikipedia explains, asset forfeiture

is a term used to describe the confiscation of assets, by the state, which are either (a) the proceeds of crime or (b) the instrumentalities of crime. . . . Instrumentalities of crime are property that was used to facilitate crime, for example cars used to transport illegal narcotics.

The case is U.S. v. Hull, 2010 WL 2079537 (U.S. Court of Appeals for the 8^th Circuit 2010), and this is how Larry Hull came to plead guilty to two counts of distributing child pornography in violation of 18 U.S. Code § 2252(a)(1):

In 1999, Hull purchased approximately nineteen acres of unimproved land in rural Treynor, Iowa, by land contract. Hull built a three-bedroom, two-bathroom house and a large barn on the property, and resided there with his wife, Tracy Hull. According to Tracy Hull's testimony, several acres were devoted to yard and garden, ten acres were pasture for three horses, and several more acres were used to grow hay and alfalfa for the horses in the winter. The barn housed a tractor and equipment used to maintain the property, and it included a small riding area for the horses. County assessment records valued the property at $270,857. The records listed Larry Hull as the sole owner, and his equity in the property at the time of the district court proceedings was $192,632.

In 2007, Hull engaged in online conversations with a law enforcement agent who was posing as a mother of two minor children. Special Agent Eric Adams of the United States Secret Service operated under the username `miamimisswith2,’ and described himself as a Florida mother named “Kathy” with twelve- and nine-year-old daughters named `Kelly’ and `Sam,’ respectively. On several occasions, Hull transmitted images of child pornography to Adams. Hull expressed an interest in performing sexual activities with `Kelly,’ and encouraged `Kelly’ to view his child pornography. He discussed the possibility of the group meeting in Florida or Iowa.

Hull also had online conversations with officers in Missouri and North Carolina who posed as mothers of young females. In each instance, he discussed his desire to perform sexual activities with the `daughters.’ Hull conversed with Adams and the other officers, and transmitted child pornography to Adams, from his desktop computer, which was located in the computer room of his house.

On August 3, 2007, law enforcement officers executed a search warrant at Hull's property. During a search of the house, officers observed an online conversation with `miamimisswith2’ on the screen of Hull's desktop computer. In the computer room, they also observed a webcam that Hull used in chats with `miamimisswith2.’ Officers seized Hull's computer and floppy disks, which the district court found to contain a total of 262 images of child pornography.

U.S. v. Hull, supra. A grand jury indicted Hull on 1 count of possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B), 4 counts of distributing child pornography in violation of 18 U.S. Code § 2252(a)(1) and 1 count of attempting to entire a minor for sexual activity in violation of 18 U.S. Code § 2422(b). U.S. v. Hull, supra. As I noted above, Hull pled guilty to 2 counts of distributing child pornography.

The indictment also “sought forfeiture of `[a]ny property, real or personal, used or intended to be used to commit or to promote the commission of the offenses alleged,’ including Hull's entire acreage.” U.S. v. Hull, supra. As Wikipedia notes, there are two kinds of forfeiture: civil and criminal. In this case, the government is pursuing criminal forfeiture of Hull’s property. If you’re interested in learning more about criminal forfeiture, check out this article.

Rule 32.2 of the Federal Rules of Criminal Procedure, which you can find here , requires that when the government intends to seek forfeiture of property, the indictment must “contain[] notice to the defendant that the government will seek forfeiture of property as part of any sentence” imposed in the case. Rule 32.2 also sets out the procedure that is to be used when the government seeks the forfeiture of property; you can check out the rule if you’re interested.

After Hull pled guilty, the federal district court conducted a bench trial on the forfeiture issue

in conjunction with Hull's sentencing hearing. After reviewing evidence and hearing argument on the issue, the district court ordered forfeiture of Hull's acreage. . . . The court imposed no additional fine.

U.S. v. Hull, supra. Hull appealed the forfeiture order, arguing that the district court judge (i) erred by ordering forfeiture of his real property without requiring proof that he used it in committing the crimes to which he pled guilty and/or (ii) by failing to make adequate factual findings as to whether the forfeiture was a “grossly disproportionate penalty in violation of the Excessive Fines Clause of the Eighth Amendment.” U.S. v. Hull, supra.

We’ll start with his first argument. Hull claimed the government hadn’t proved that he “used” his real property in committing the offenses; as a backup claim, he argued that “even if the house is subject to forfeiture, the remainder of the acreage cannot be forfeited, because that portion of his property was not used” in committing the crimes. U.S. v. Hull, supra. The Court of Appeals didn’t buy either argument. It found that it was “`clear’” Hull “`used’” his real property to commit the crimes:

He set up a computer in a room in his house, connected to the Internet, and distributed child pornography from there. The evidence showed a substantial connection-not merely an incidental or fortuitous relationship-between the real property and the offenses. To be sure, use of the computer was necessary to commit the offenses, but the real property played a substantial role as well. The house enabled Hull to establish a hardwired connection to the Internet, which allowed him to distribute the contraband. It also provided a secure place to store the images that he later distributed. Use of a computer in the privacy of the residence, rather than in a library, coffee shop, or senior center, made it easier for Hull to conceal his crimes from public scrutiny. Hull posits that he could just as easily have used a motel room, but use of the residence avoided rental costs and the attention that would be attracted by frequent visits to local motels.

U.S. v. Hull, supra. The Court of Appeals also found that all the property was forfeitable:

Hull purchased the acreage in one land contract, and it is described in county records as one unit of property. Because Hull's acreage is a single tract of land that was conveyed to him as a whole, the district court was correct to treat the entire acreage as a single piece of `property’ when applying the [forfeiture] statute.

U.S. v. Hull, supra. The court then considered, and rejected, Hull’s argument under the 8^th Amendment, which provides, in part, that “excessive fines” shall not be imposed. The Court of Appeals found that the federal district court judge’s imposition of forfeiture was supported by facts that rebutted Hull’s excessive fines argument:

[T]o support its conclusion that the forfeiture did not violate the Excessive Fines Clause, the district court observed that the value of Hull's property did not exceed the fine that could be imposed. More precisely, the record showed that Hull's equity in the property was $192,632, while the maximum fine recommended by the sentencing guidelines for his offenses was $200,000. The relatively high recommended fine range does not suggest a minimal level of culpability, and a comparison of the forfeiture and the fine range suggests that the forfeiture is, at a minimum, presumptively not excessive.

U.S. v. Hull, supra.

When the district court judge was considering forfeiture, the federal prosecutor handling the case told him this was the first case in which the government had sought “forfeiture of a home and other real property in Southern Iowa based on a defendant's use of a computer within the home to commit a child pornography offense.” U.S. v. Hull, supra.

I don’t know how common this is; I did find a few reported cases in which defendants convicted of child pornography crimes had their homes forfeited. U.S. v. 7046 Park Vista Road, 537 F.Supp.2d 929 (U.S. District Court for the Southern District of Ohio 2008); U.S. v. Young, 2201 WL 1644658 (U.S. District Court for the Middle District of Georgia 2001).

(If you’re wondering how Tracy came out in all this, the Court of Appeals’ decision says that after the district judge ordered forfeiture of the property, she and the government “entered into a settlement agreement, under which Tracy promised to pay $95,000 to the United States, and the government agreed not to forfeit the acreage.” U.S. v. Hull, supra. I assume, then, that the house was forfeited but not the rest of the 19 acres.)

Thumb Drives, the 4th Amendment and Inadvertence

This post is about a case that raises two 4^th Amendment issues – consent to seized and/or search property and exigent circumstances – in a rather unusual context.

As I’ve noted in earlier posts, both doctrines are exceptions to the 4^th Amendment’s requirement that law enforcement officers obtain a search warrant before searching for and seizing evidence. As exceptions, they essentially stand-in for a warrant, i.e., the Supreme Court has found that each, in its own, way, provides enough protection for the interests the 4^th Amendment is designed to preserve to make it “reasonable” to let officers proceed without getting a warrant. I’ll talk more about the exceptions later, after we get into the arguments that were made in this case.

The case is U.S. v. Smith, 2010 WL 1949364 (U.S. District Court for the District of Arizona 2010), and this is how the 4^th Amendment issues arose:

The Cincinnati division of the [FBI] sent an investigative lead to Agent Hooton regarding emails containing child pornography which had been sent to [Elmer Smith’s] email address. . . . [Agents] Hooton and Wilson went to [Smith]'s home to follow up. . . [Smith] was not at home . . .but [his] wife, Deirdre, was. . . The agents explained they were investigating child pornography sent to her husband's email address. . . .

The agents learned [the couple] shared a computer and requested permission . . . to search [it] for child pornography. . . . Mrs. Smith [said] she would be more comfortable if her husband were present. The agents suggested [she] call [him]. . . . [but she] was unable to reach [him]. . . . Hooton . . . advised Mrs. Smith. . . that she did not have to consent . . and could change her mind. . . . Hooton told [her] another agent, Eric Campbell, had software that would be used to search the computer. [It] would only search for child pornography. . . . Mrs. Smith consented. . . [and] led the agents to the computer room. [She] thought her husband's account . . . was password protected. . . [but]. . . . it was not. . . .

Hooton handed Mrs. Smith a consent to search form and requested her signature. [She] said she did not want to sign . . ., but after the agents told her they could not search . . . without her signature, she signed. . . .

The search was conducted by Campbell using ADF Triage, a forensic computer program. . . . [It] took about 45 to 50 minutes. . . . [it] was completed the agents discovered a thumb drive attached to the computer through a USB hub. The thumb drive had not been searched. . . . Mrs. Smith did not know anything about [it]. Initially, the agents asked [her] to keep [it] . . . . [A]fter the agents left . . . they reconsidered. . . The[y] were concerned that . . . [Smith] could destroy [it] remove any criminal images that might be there. [They] . . . asked Mrs. Smith's permission to take the thumb drive with them. [She] consented. . . .

[Smith] called Hooton. . . Hooton requested permission to search the thumb drive, which [Smith] denied. Hooton made an appointment to meet with [Smith] the next day to return the thumb drive. . . . [Smith] came . . . to get his thumb drive and consented to an interview. As a result of the interview, the. . . . agents obtained a search warrant for it.

U.S. v. Smith, supra. They found child pornography on the thumb drive and those images (but not the ones found on his computer) were used to charge him with child pornography crimes, probably possessing child pornography. U.S. v. Smith, supra. (The opinion doesn’t say exactly what he was charged with.) Smith moved to suppress, claiming the evidence on the thumb drive was found in a manner that violated the 4^th Amendment. U.S. v. Smith, supra.

The first issue was consent: Smith claimed his wife’s consent to searching the computer wasn’t voluntary. As I’ve noted in earlier posts, for consent to a search to be valid, it must be voluntary, i.e., must not have been coerced by law enforcement agents. Smith argued that because his wife was hesitant to consent at one point, her consent was coerced and wasn’t voluntary. U.S. v. Smith, supra. The U.S. Magistrate Judge who was assigned to decide whether Smith’s motion should be granted disagreed: He found the agents didn’t display weapons and told Mrs. Smith that she could refuse to consent and could terminate her consent once it was given. He found these and other circumstances rendered the consent voluntary. U.S. v. Smith, supra.

The second issue was whether Mrs. Smith had the authority to consent to a search of the computer and/or a seizure of the thumb drive. As I’ve noted in earlier posts, to be able to consent to a search of property, the person giving consent must have mutual use of and joint access to the property. Smith owned the computer, but that didn’t matter; the evidence showed that his wife used it, too. Since she used it, she had authority to consent to a search of the computer. U.S. v. Smith, supra.

Smith argued that his wife (who said she didn’t “know what a thumb drive was”) didn’t have authority to consent to the seizure (consent works for seizures as well as for searches) of the thumb drive because she didn’t use it. U.S. v. Smith, supra. The Magistrate Judge didn’t agree: He noted that when “it was discovered, the thumb drive was attached to a USB hub next to the computer” and found that “[g]iven Mrs. Smith’s unlimited physical access to the thumb drive she had . . . authority to give it to the agents for safe keeping,” i.e., she could consent to its seizure. U.S. v. Smith, supra.

(I'm not sure that's right. In People v. Blair, 321 Ill. App.3d 373, 748 N.E.2d 318 (Illinois Court of Appeals 2001), an Illinois appellate court held that joint use and common access is enough to establish authority to consent to a search of property but it isn't enough to consent to a seizure of property. This court said that the seizure of property "is lawful only when the owner of the property consents" to its seizure. People v. Blair, supra. I think that makes sense, for reasons the court explains in its opinion. If we go with Blair, then, the court would have to decide if she "owned" the thumb drive.)

The agents apparently decided at the scene that she didn’t have authority to consent to a search of the thumb drive, which is why they didn’t search it until they’d gotten a warrant. U.S. v. Smith, supra. The Magistrate Judge found that this procedure satisfied the 4^th Amendment and rejected Smith’s consent arguments. U.S. v. Smith, supra.

Even though the court had found that Mrs. Smith had the authority to consent to the seizure of the thumb drive, it also addressed the government’s (alternate?) argument that “there were exigent circumstances to seize the thumb drive.” U.S. v. Smith, supra. As I noted last year, this exception lets police seize property without a warrant when getting a warrant could result in the evidence’s being destroyed. Here’s how the Magistrate Judge ruled on the applicability of the exception here:

To establish exigent circumstances due to possible destruction of evidence there must be probable cause to suspect evidence is present. . . . When agents searched [Smith’s] computer they found two images of child pornography. The computer data showed the images had been created the week before the search. . . . [T]he thumb drive was connected to the computer through a USB hub. In the agents' experience, child pornography is often stored on thumb drives. The . . . agents had probable cause to believe evidence was present on the thumb drive. Given the ease with which evidence could be altered or destroy on the thumb drive, its seizure was justified based upon exigent circumstances.

U.S. v. Smith, supra. That brings us to the “inadvertence” issue. Here’s how it arose:

William Hajeski Jr. was a member of the FBI's Computer Analysis Response Team . . . He was assigned the task of analyzing the thumb drive. . . . His objective with the thumb drive was to create a mirror image of the media and retrieve any images or video from the duplicate. Hajeski discovered the drive was encrypted and could not access any data on it. Campbell provided a password from [Smith], but Hajeski still was unable to get into the drive. Using a second password, he was no longer receiving the wrong password message but it did not decrypt the drive. During this process, he was using write block software. His . . . efforts to access the data on the drive were unsuccessful. He then attempted to write protect the data using specially designed hardware. Again, his attempt failed. He entered the password without write protection and added the write protection before attempting to access the data, but this also failed. Because none of the procedures provided access to the drive, Hajeski decided to obtain an image of the drive without write protection. Consequently, all of the relevant access dates on the thumb drive were changed to reflect the search date as the last access date. The prior access dates cannot be recovered.

U.S. v. Smith, supra. Smith moved for dismissal of the indictment “due to destruction of evidence.” U.S. v. Smith, supra. He was making a due process argument, but a law enforcement failure to preserve “potentially useful evidence” does not constitute a denial of due process of law unless the defendant shows “bad faith on the part of the police”. Arizona v. Youngblood, 488 U.S. 51 (U.S. Supreme Court 1989).

Smith apparently presented the testimony of his own expert in an effort to establish bad faith, but the Magistrate judge noted that the expert “had no opinion on whether . . . Hajeski . . . made a deliberate mistake or that the changing of the access dates was inadvertent.” U.S. v. Smith, supra. The Magistrate Judge found that “[a]t best, [Smith] has established the government destroyed the access dates negligently.” U.S. v. Smith, supra. Since the “negligent destruction of evidence does not violate due process”, he found that Smith’s motion to dismiss the indictment should not be granted. U.S. v. Smith, supra.

Metadata and the 5th Amendment Privilege

As I’ve explained in earlier posts, the U.S. Supreme Court has held that

(1) You can’t claim the 5^th Amendment privilege against self-incrimination as the basis for refusing to provide the government with physical evidence by, say, handing over the drugs in your pocket or letting a law enforcement officer take a sample of your DNA or of your blood because the privilege applies to “testimony,” not to physical evidence. “Testimony,” basically, is the act of communicating facts or opinions; it’s the equivalent of what a witness does when he/she takes the stand and testifies in court.

(2) But you CAN claim the 5^th Amendment privilege and refuse to produce physical evidence when a court orders you to do IF the act of producing the evidence is “testimonial,” i.e., if by producing the evidence you are in effect telling the government something it doesn’t know. The U.S. Supreme Court has held, as I’ve noted in earlier posts, that the act of producing evidence is testimonial when it (i) concedes that the thing exists (which it obviously has to if you’re going to turn it over), (ii) concedes that it’s in your possession or control (also pretty obvious, but sometimes people produce evidence by giving up a key to a safety deposit box or, as I’ve noted an encryption key) and (iii) “authenticates” what you produce, i.e., implicitly says “here is the thing you asked for.”

This post is about a case in which a defendant in a federal criminal case was ordered to produce certain metadata and refused, citing the second principle described about (which is often known as the “act of production doctrine.”) To understand the issues in the case, we need some factual context, which isn’t provided by the opinion we’ll be analyzing. I did find the basic facts we need in several news stories.

The case is U.S. v. Sandra Hatfield, David H. Brooks and Patricia Lennix and it’s pending in the U.S. District Court for the Eastern District of New York (Case No. 06-CR-0550). Here, according to a story from Businessweek, is how the prosecution arose:

David Brooks, a founder and former chief executive officer of military contractor DHB Industries Inc., committed a $185 million fraud and looted the company to pay for personal expenses, a prosecutor said at a trial today [January 25, 2010].

Brooks and former chief operating officer Sandra Hatfield are accused of insider trading as well as securities fraud and tax, wire and mail fraud for manipulating financial records to increase DHB’s reported earnings and profits. DHB. . .now called Point Blank Solutions Inc., makes body armor for the military and police.

Brooks and Hatfield allegedly lied about inventory of `Interceptor’ combat vests that were shipped to the U.S. armed forces and falsely inflated the company’s value and their own stock, prosecutors said. The trial . . . will last several months, the U.S. said. . . .

The defendants, who have pleaded not guilty and deny the allegations, each face as much as 25 years in prison if convicted of the most serious counts of fraud.

Here, according to an April 6 story from The Harness Edge, is how the issue we’re concerned with arose:

The ongoing trial of former horse . . . breeder David Brooks . . . took a twist yesterday when the federal judge threatened to hold him in contempt . . . if his attorneys do not provide evidence she has requested. . . .

The request came last week when Brooks’ attorneys presented an email in an attempt to discredit the government’s key witness against Brooks, Dawn Schlegel the former chief financial officer at DHB Industries which Brooks is accused of defrauding $185 million.

Prosecutors are suggesting that the email, supposedly from Schlegel to a former co-worker, was forged to undermine Schlegel’s credibility.

Judge Joanna Seybert last week ordered Brooks’ attorneys to turn over to her last Friday the metadata history of the email which would show when it was created and any subsequent alterations.

This request, which has yet to be fulfilled, came after Schlegel testified that an email she had sent to a colleague had been changed to include wording regarding a sexual encounter. Federal prosecutors said the email that Brooks’ lawyers were presented was not in any of the documents the government and defense attorneys obtained from DHB computers. . . .

The opinion we’re concerned with issued on April 7: U.S. v. Hatfield, et al., 2010 WL 1423103 (U.S. District Court for the Eastern District of New York 2010). It’s very brief and only tells us that the judge ordered Brooks to produce the “metadata associated with DB-DS-153” on April 1 and again on April 5. U.S. v. Hatfield, supra. In her April 5 order, the judge directed Brooks to produce the metadata “in camera, so that the Court could determine: (1) whether the act of production privilege applies and, (2) whether the metadata impeaches DB-DS-153's authenticity.” U.S. v. Hatfield, supra.

As Wikipedia explains, “in camera” means the metadata was produced to the judge (only) so she could review it in private before determining if the privilege applied and/or if it impeached DB-DS-153’s authenticity. It seems Brooks did produce the metadata to the court for in camera review because in this opinion she (i) finds that the act of production doctrine (and therefore the 5^th Amendment privilege) doesn’t apply to it and (ii) so “releases DB-DS-153’s metadata” to the prosecution. U.S. v. Hatfield, supra.

Judge Seybert begins the opinion by noting what is required for the act of production doctrine to apply and bring the act of producing evidence within the protections of the 5h Amendment privilege. For it to apply, the 3 requirements I outlined above must be met AND the existence and location of the evidence must not be a “foregone conclusion,” i.e., the government mustn’t know where the evidence is and what it is (basically).

She finds that the act of production doctrine doesn’t apply to the metadata for two reasons:

First, the `existence and location of the [metadata] papers’ is not `unknown to the government.’ On April 1, 2010, Mr. Brooks' attorney, Richard Levitt, represented in open court that Mr. Brooks possessed the metadata and would willingly `give it to the court for in camera review’ and `explain to the court exactly what it means.’ . . . At this time, Mr. Brooks had not yet invoked the act of production privilege, and Mr. Levitt made no effort to assert it on his behalf. Instead, Mr. Levitt objected to providing it to the Government on the grounds that the metadata (associated with an e-mail that Dawn Schlegel purportedly wrote) somehow constituted Mr. Brooks' `private information.’ Thus, by the time Mr. Brooks asserted the privilege, the Government already knew that the metadata existed and that Mr. Brooks' defense team possessed it. See In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992, 1 F.3d 93 (`production may not be refused [i]f the government can demonstrate with reasonable particularity that it knows of the existence and location of subpoenaed documents’). . . .

Second, Mr. Brooks' production of the metadata would not implicitly authenticate it. This is because Mr. Brooks' act of producing the data is not a `necessary link to any incriminating evidence contained’ within it. . . . Indeed, in Mr. Brooks' April 2, 2010 letter to the Court, he represented that the Court could obtain the identical metadata by subpoenaing Venable LLP for the `mirror’ of Ms. Schlegel's hard drive, and then looking in Ms. Schlegel's Microsoft Outlook deleted items folder. Accordingly, it is not `necessary’ for Mr. Brooks to produce the metadata: it is merely most convenient for him to do so. In addition, `[i]mplicit authentication occurs when an individual who receives a [subpoena] demanding production of documents complies with the [subpoena] and thereby implicitly testifies that he owns or at least possesses the documents.’ U.S. v. Walker, 982 F.Supp. 288 (U.S. District Court for the Southern District of New York 1997). But here, Mr. Levitt already represented -- prior to Mr. Brooks invoking the privilege -- that Mr. Brooks `own[ed]” the metadata when he represented that the metadata was Mr. Brooks' “private information.’ Thus, Mr. Brooks' act of producing the metadata lacks any testimonial quality. . . .

U.S. v. Hatfield, supra. In the final part of her opinion, Judge Seybert cites the “foregone conclusion” principle, and finds that it applies here:

Furthermore, the `foregone conclusion’ rule belies Mr. Brooks' privilege assertions. Fisher v. U.S., 425 U.S. 391 (1976). This rule states that `[w]hen the existence of documents is a foregone conclusion, the [party]'s concession that he has the documents would add little or nothing to the government's information, and the question is not of testimony but of surrender.’

U.S. v. Hatfield, supra.

I don’t know enough about the facts in this case to be able to state with any certainty as to whether Judge Seybert’s ruling is accurate . . . but my sense is that it is. I can see another argument here as to why Brooks can’t invoke the 5^th Amendment privilege courtesy of the act of production doctrine: It’s a basic principle of 5^th Amendment law that to be able to claim the privilege you must “stand on” the privilege, i.e., you must claim it and refuse to answer (or to produce evidence).

If you answer (or produce evidence), you’ve lost the privilege because, according to the Supreme Court, you haven’t been “compelled” to do anything. As I’ve noted before, to take the 5^th Amendment, you have to be (i) compelled (the court is forcing you on pain of being locked up for contempt if you don’t do what it says) (ii) to give testimony (plug in the act of production doctrine here) that (iii) incriminates you. In U.S. v. Mandujano, 425 U.S. 564 (1976), the U.S. Supreme Court explained that if you voluntarily answer a question (or produce evidence), you’ve waived the privilege. It looks to me like what Brooks’ attorney did and Brooks’ letter to the court MAY (again, I only have very sparse facts to work with) have waived the privilege, assuming it ever applied.

Contempt and the Demise of "Virtual Presence"

This is a follow-up to a post I did about a month ago. That post dealt with Chicago U.S. District Court Judge Robert Gettleman’s holding a litigant in criminal contempt for basically having a spam email attack launched at the judge.

When I wrote that post, the litigant – Kevin Trudeau – had appealed Judge Gettleman’s order to the U.S. Court of Appeals for the 7^th Circuit. The appeal had been argued but not yet decided.

The 7^th Circuit decided the appeal on May 20. It vacated the contempt citation Judge Gettleman entered against Trudeau and therefore vacated the sentence of 30 days in jail Judge Gettleman imposed on him for the contempt citation. F.T.C. v. Trudeau, 2010 WL 1994593 (U.S. Court of Appeals for the 7^th Circuit 2001).

Here, according to the 7^th Circuit, is what prompted Judge Gettleman to hold Trudeau in criminal contempt:

Trudeau . . . exhorted his devoted radio audience to send e-mails on his behalf to the court e-mail address of the district judge presiding over his case; he posted the radio broadcast on his web site, and followed it up with an e-mail blast asking his e-mail list to send e-mails to the judge. The district judge had not asked for any letters and . . . had not (he thought) made his e-mail address publicly available (it turns out Northwestern University Law School had listed it on its web site; the judge is an adjunct professor there). He was, therefore, surprised to see e-mail after e-mail come pouring into his inbox. He was also nervous. Most of the e-mails were polite and enthusiastic . . . but some had threatening overtones. . . . The judge alerted the marshal to the e-mails coming to his account, and the marshal performed a threat assessment to determine whether the judge was in danger. The judge received over 300 e-mails within a span of 36 or so hours.

Once the judge began to understand that all these e-mails were arriving at Trudeau's behest, he summoned Trudeau's lawyer . . . into court the next morning without explaining why. At that morning's session, the judge notified Trudeau's counsel that [he] could be facing a criminal contempt sanction and ordered Trudeau to appear that afternoon. He also instructed Trudeau's counsel to have Trudeau make the e-mails stop. Before he showed up later that day, Trudeau sent an e-mail to his listeners asking them to cease e-mailing the judge. Still, the judge summarily found Trudeau guilty of criminal contempt and, a week later, imposed the 30-day sentence.

F.T.C. v. Trudeau, supra. In my last post, I explained what contempt is and what the difference is between civil and criminal contempt, so I won’t repeat all that here.

On appeal, Trudeau claimed “his conduct was . . . not punishable under the criminal contempt statute.” F.T.C. v. Trudeau, supra. He also “dispute[d] the judge's use of a summary procedure to convict him of contempt.” F.T.C. v. Trudeau, supra.

The 7^th Circuit began its ruling on his arguments by noting that the federal criminal contempt statute – 18 U.S. Code § 401 – gives a court “the authority to punish by imprisonment `misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice,’ . . . and `disobedience or resistance to its lawful writ, process, order, rule, decree, or command’”. F.T.C. v. Trudeau, supra (quoting § 401). (I quoted the provisions of § 401 in my prior post, if you’re interested.)

The 7^th Circuit noted that conduct that violates § 401 “is a crime” and those who commit such a violation are “convicted through normal criminal process.” F.T.C. v. Trudeau, supra. It also noted that – as I explained in my prior post – the procedures for holding someone in criminal contempt are set out in Rule 42 of the Federal Rules of Criminal Procedure: Rule 42(a) “outlines the ordinary procedures necessary for a finding of criminal contempt”, while Rule 42(b) “allows for the summary punishment of direct criminal contempt.” F.T.C. v. Trudeau, supra. (I described the provisions of Rule 42 in my prior post, if you want to check them out there.)

The 7^th Circuit explained that Judge Gettleman didn’t follow the Rule 42(a) procedures because he proceeded under Rule 42(b), i.e., he treated Trudeau’s conduct as direct criminal contempt. F.T.C. v. Trudeau, supra. It noted that a finding of direct contempt is “appropriate only if the criminal contempt occurred in the presence of the judge”, who saw or heard the contemptuous conduct. F.T.C. v. Trudeau, supra. The 7^th Circuit then explained that contempt occurring in the presence of the court must be punished “on the spot” in order to maintain the court’s authority; again, I addressed that issue in the last post. F.T.C. v. Trudeau, supra.

As I also noted, a major issue in this appeal was whether the allegedly contemptuous conduct occurred in Judge Gettleman’s “presence.” F.T.C. v. Trudeau, supra.

The judge found the `presence’ condition satisfied because he could read the e-mails on the court's computers . . .and his PDA which he carried with him so that he was `always in communication’ with the court. . . . We resist the . . . suggestion that . . . `presence’ should be expanded to reach beyond the judge's actual, physical presence. . . . Rule 42(b) specifically requires that the judge `saw or heard the contemptuous conduct’. . . . This requirement indicates that the act itself must be committed in the judge's presence; that its effects are felt by the district judge is insufficient to justify summary disposition. . . .

F.T.C. v. Trudeau, supra. The 7^th Circuit explained why this interpretation of the “presence” requirement was appropriate given what happened in this case:

Despite his statement that he relied on no extrinsic evidence to find Trudeau in contempt, the judge had to do research to figure out why he was getting Trudeau's e-mails. He (or his staff) went on Trudeau's web site, had his court reporter transcribe the broadcast, and entered the e-mails, web site posting, and broadcast into the record. . . . This level of fact-finding renders summary disposition improper: the justification for summary process is that because he witnessed the contemptuous conduct, the judge knows all he needs to know in order to punish the defendant. . . .

The judge put Trudeau in something of a bind . . . when he said, `. . . . I want to make sure that it's clear. Mr. Trudeau concedes that he did, in fact, cause these e-mails to be sent.’ The context of the statement makes clear that the judge was expecting Trudeau to concede his guilt at this point. . . . [U]nder the summary contempt procedure, there should be no need to put the question to the defendant; the judge must have seen or heard the contemptuous conduct. . . . Summary disposition was an abuse of discretion.

F.T.C. v. Trudeau, supra.

An amicus curiae brief argued that “the urgency of the situation the judge faced . . . justified summary punishment”, but the 7^th Circuit didn’t agree. F.T.C. v. Trudeau, supra.

It noted that the amicus’ argument was based on the premise that “urgency attenuates the necessity of actual presence” and that the amicus relied in part on the fact that the judge was “compelled to ask the marshal to undertake a threat assessment.” F.T.C. v. Trudeau, supra.

The 7^th Circuit found that while urgency is “required to invoke the summary contempt power,” it is “not sufficient to justify its exercise.” F.T.C. v. Trudeau, supra. It noted that there that there must be “a nexus between the urgency of the situation and the need for immediate punishment.” F.T.C. v. Trudeau, supra.

For example, in what we could view as the typical direct contempt case -- an obstreperous litigant at trial who will not heed the court's instructions and brings the trial to a halt -- the need for the litigant's compliance in order to continue the proceedings is urgent; . . . there is an urgent need to punish the litigant quickly so the proceedings may resume.

F.T.C. v. Trudeau, supra. The 7^th Circuit explained that in this case the need “to preserve the court’s security and the need to punish Trudeau summarily were not closely linked.” F.T.C. v. Trudeau, supra. It pointed out that (i) there was no indication that summary punishment for Trudeau was “necessary to restore the court’s ability to resume its duties” and (ii) Trudeau had asked his followers to stop emailing the judge before he showed up for the contempt proceeding. F.T.C. v. Trudeau, supra.

As I mentioned earlier, the 7^th Circuit therefore vacated the contempt citation and the sentence imposed on Trudeau. F.T.C. v. Trudeau, supra. It noted that it was not saying “there should be no consequence for Trudeau’s actions, only that absent a compelling reason for summary disposition,” Trudeau is entitled to “the normal array of procedures under Rule 42(a).” F.T.C. v. Trudeau, supra. It in fact remanded the case to Judge Gettleman “for further proceedings according to “ 18 U.S. Code § 401, Rule 42(a) “and this opinion.” F.T.C. v. Trudeau, supra. As I noted in my last post, what that means is that Trudeau could still be held in contempt if Judge Gettleman refers the matter to a prosecutor who pursues it as what it is, a crime.