Constructive Amendment, Variance and Thumbnails

As I’ve probably noted before, an indictment is a charging document which alleges that a particular person (the defendant named in the indictment) committed one or more crimes. As Wikipedia explains, an indictment is returned by a grand jury. The 5^th Amendment to the U.S. Constitution requires that charges for a “capital, or otherwise infamous crime” (e.g., a felony) be brought by an indictment returned by a grand jury.

This post is about a federal case in which the defendant claimed the prosecution was impermissibly changing the charges contained in the indictment a grand jury returned against him. The case is U.S. v. Vosburgh, 602 F.3d 512 (U.S. Court of Appeals for the 3d Circuit 2010), and this is how it arose:

In July 2006, FBI Agent Wade Luders learned of Ranchi's existence from a suspect in an investigation of . . . child pornography. . . . [Ranchi is an underground Internet message board [that] allows users to post links to images and videos of child pornography.] That suspect authorized Luders to use his Ranchi handle . . . to go undercover on the board. On October 25, 2006, Luders posted six links to what purported to be child pornography. One of those links directed users to a video located at the following address: hxxp:// uploader. sytes. net/ 12/ 05/ 4 yo_ suck. rar. html. . . .

The `4yo_suck’ link . . . was. . . . a dummy link which led only to Luders's FBI computer. . . . [which] generated a log file containing the Internet Protocol addresses of every user who attempted to access the Link, and the date and time of each attempt. Among those who attempted to access the Link was a user at IP address 69.136.100.151. . . . Luders traced this IP address to Comcast Cable Communications. In response to a subpoena, Comcast informed the government that `the individual utilizing the IP address 69.136.100.151 on October 25, 2006 at [the relevant times] did so using an account subscribed to by Rod[erick] Vosburgh, residing at 37 State Rd., Apt. B4’ in Media, Pennsylvania. Luders forwarded this information to Agent David Desy in Philadelphia.

U.S. v. Vosburgh, supra. Desy confirmed that Vosburgh lived at the address given by Comcast and on February 23, 2007 got a warrant to search Vosburgh’s apartment. U.S. v. Vosburgh, supra. The officers who executed the warrant found, and collected, “pieces of smashed thumb drives,” parts of a “destroyed” hard drive and an external hard drive. U.S. v. Vosburgh, supra. An FBI computer forensics expert examined the external hard drive and found it contained a folder with hundreds of pictures of

what the government calls `child erotica” [many of which were pictures of a young Asian girl known as Loli-chan who [has posted] suggestive photos of herself on the Internet. It also contained a folder [that] contained twenty pictures of adult women in .jpeg format and a file called thumbs.db which contained 68 ‘thumbnail’ images. Two of those images were of child pornography [which became government exhibits at trial].

U.S. v. Vosburgh, supra. These images became two government exhibits which were introduced into evidence at trial. The 3d Circuit noted that

these two images did not exist as full-sized, independent picture files (such as .jpeg files) in the jap111 folder when the government seized the hard drive. Nor were full-sized .jpegs of those images recovered anywhere else on the external hard drive. Rather, they existed only as miniatures within the thumbs.db file in the jap111 folder.

U.S. v. Vosburgh, supra. We’ll come back to the thumbnails in a minute.

Vosburgh was charged, among other things, with possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B) and was convicted on the charge (Count I of the indictment). U.S. v. Vosburgh, supra. He appealed, claiming “a new trial should be held because there was a constructive amendment of his indictment and/or a variance between the indictment and the evidence at trial.” U.S. v. Vosburgh, supra. As § 236 of the U.S. Department of Justice’s Criminal Resource Manual explains,

[I]ndictments cannot be amended. . . . If the indictment could be changed by the court or prosecutor, it would no longer be the indictment returned by the grand jury. . . . [I]n Russell v. United States, 369 U.S. 749, 769 (1962), the Court pointed out that a consequence of amending the indictment is that the defendant `could be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.` `Thus, the Fifth Amendment forbids amendment of an indictment by the Court, whether actual or constructive.’ United States v. Wacker, 72 F.3d 1453, 1474 (10th Cir. 1995. . . .

The 3d Circuit noted that an indictment can be constructively amended through evidence, arguments or the court’s jury instructions. U.S. v. Vosburgh, supra. It explained that a “variance occurs `where the charging terms of the indictment are not changed but when the evidence at the trial proves facts materially different from those alleged in the indictment.’” U.S. v. Vosburgh, supra (quoting U.S. v. Daraio, 445 F.3d 253 (U.S. Court of Appeals for the 3d Circuit 2006)). Basically, then, if Vosburgh was convicted of the same offense charged in the indictment based on the same facts that supported those charges, there would be no constructive amendment and no variance.

Vosburgh argued that the government changed its theory of prosecution as to which “visual depictions” of child pornography he possessed:

Vosburgh's arguments rest on his interpretation of the statutory term `visual depiction.’ The relevant definition states that a `visual depiction includes undeveloped film and videotape [or] data stored on computer disk or by electronic means which is capable of conversion into a visual image. . . . ‘ 18 U.S. Code § 2256(5).

Vosburgh argues that a `visual depiction’ is defined, not as a particular image, but as the collection of bytes that is `capable of conversion’ into that image. On that basis, he distinguishes the pornographic thumbnails in the thumbs.db file from the full-sized .jpegs of those same images that once existed in the jap111 folder. He claims that although the thumbs.db images and the full-sized .jpegs possessed on February 22, 2007 are the same pictures of naked children, those pictures are two different `visual depictions’ because each is generated by the computer's conversion of a distinct collection of bytes of data.

According to Vosburgh, he was charged only with possession of the thumbnails in the thumbs.db file, not possession of the .jpegs whose earlier existence was evidenced by those thumbnails. . . . He contends that after the evidence proved he could not have knowingly possessed the thumbs.db versions of Exhibits 14 and 15, the government realized it would not be able to convict him based on his possession of those thumbnails alone. Therefore, it changed course at closing argument: no longer was Vosburgh accused of possessing the thumbs.db images. Instead, he was accused of knowingly possessing, on or around February 22, the full-sized .jpeg versions of Exhibits 14 and 15, with his possession of the pornographic-but-hidden thumbs.db miniatures on February 27 merely serving as evidence of his knowing possession of those full-sized pictures approximately five days earlier. As a result, Vosburgh claims, the prosecution `invited conviction for something the indictment did not charge’ and thereby constructively amended the indictment. In the alternative, he argues that this inconsistency created a prejudicial variance, since he was `misled [and] surprised at trial’ about the exact images that he was on trial for possessing.

U.S. v. Vosburgh, supra (emphasis in the original). The prosecution argued that there was neither a constructive amendment nor a variance:

It maintains that its theory of prosecution was consistent from start to finish, and specifically contends that Count I did not specify whether the `visual depictions’ were the thumbnails in the thumbs.db file or the previously-existing, full-sized .jpegs. Rather, the government argues, Count I notified Vosburgh generally about the illegal `images’ he was charged with possessing, and the specific date of that possession was proved through . . . testimony at trial.

U.S. v. Vosburgh, supra. The Third Circuit agreed with the government:

[Section 2242(2)(4)(B)] does not criminalize the knowing possession of `visual depictions’ of child pornography. It criminalizes knowing possession of `books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction’ of child pornography. . . . Vosburgh is charged, not with possession of any one particular `visual depiction’ of child pornography, but with possession of `one external hard drive’ . . . that contained visual depictions of child pornography, on or about February 27, 2007. Assuming without deciding . . . the thumbs.db images of child pornography and the corresponding full-sized pictures are different `visual depictions’ within the meaning of the statute, the fact remains that both . . . were depictions of the same underlying images, located on the same external hard drive. The indictment . . . correctly identified the relevant hard drive and images. . . .

U.S. v. Vosburgh, supra (emphasis in the original). The court therefore held that the evidence at trial did not modify the elements of the crime charged, so there had been no constructive amendment of the indictment. U.S. v. Vosburgh, supra. It also found there was no variance:

If the thumbs.db and .jpeg images were . . . different `visual depictions’ of pornography, then the evidence at trial arguably proved facts materially different from those alleged in the government's response to Vosburgh's request for a bill of particulars. The issue is whether that variance `surprised or otherwise . . . prejudiced the defense,’ so as to require reversal. In our view, it did not.

U.S. v. Vosburgh, supra (quoting U.S. v. Daraio, supra). The court also noted that

Vosburgh's expert . . . came to trial prepared to refute the prior possession theory. She conducted a lengthy, in-court computer demonstration attempting to show that a person can possess a particular image in a thumbs.db file without ever having possessed a full-sized .jpeg of that same image on his hard drive. We think the fact Vosburgh's expert came to trial prepared with a powerful demonstration contradicting the government's theory of prosecution shows Vosburgh knew exactly what that theory was well before closing argument.

U.S. v. Vosburgh, supra. The 3d Circuit therefore found that even if there had been a variance between the indictment and the evidence presented at trial, the record showed that Vosburgh “prepared a strong defense that belies any claim of . . . surprise at trial.” U.S. v. Vosburgh, supra. It therefore denied his motion for a new trial. U.S. v. Vosburgh, supra.

The "Reasonable Continuation Rule" and Computers

As I’ve noted before and as I assume everyone already knows, the 4^th Amendment creates a right to be free from “unreasonable” searches and seizures and, in so doing, creates a default preference for having searches and seizures conducted pursuant to a warrant: a search (and seizure) warrant. This post essentially deals with how long the authorization granted by a particular search warrant lasts.

In State v. Speers, 2010 WL 2176083 (Arizona Court of Appeals 2010), the defendant, Phillip Speers argued, in part, that evidence against him should be suppressed because officers seized two computers belonging to him and (i) searched them at the time they were seized, in 2000 and (ii) searched them again in “late 2004 or early 2005,” without obtaining a new warrant. State v. Speers, supra. As I noted in an earlier post on this case, Speers was convicted on various counts in 2003, the convictions were set aside and then he was re-tried, which is the case this opinion deals with.

In appealing the second conviction, Speers argued that “the reexamination [of the computers] without a warrant was an unreasonable search and seizure” under the 4^th Amendment. State v. Speers, supra. In his appellate brief, Speers claimed that while Arizona courts hadn’t directly addressed this issue, “other jurisdictions have held that `a warrant is executed when a search is conducted, and its legal validity expires upon execution,` so that `after execution, no additional search can be undertaken on the same warrant.’” Appellant’s Opening Brief, State v. Speers, 2009 WL 872350 (quoting State v. Trujillo, 95 N.M. 535, 624 P.2d 44 (1981)). I don’t have access to the prosecution’s brief in this appeal, so I can’t do justice to what they argued; according to Speers, the prosecution’s brief said that “[s]earch warrants are only required to seize or examine evidence in the first instance’”. Appellant’s Opening Brief, supra.

I found that an interesting argument since I, for one, had never seen any cases that address this issue. So I decided to look into it. I didn’t find any reported cases that address the issue in the context of computer searches, but I did find a few cases that deal with the “reasonable continuation rule.” So I thought I’d do a post on how that rule has been applied to traditional, physical searches and then speculate a bit about how it might, or might not, apply to computer searches.

In Search and Seizure: A Treatise on the Fourth Amendment (Thomson West 2009), Wayne LaFave, a respected expert on the 4^th Amendment, explains that when “the purposes of the warrant have been carried out, the authority to search is at an end.” LaFave, Search and Seizure, supra. He notes that “a warrant may be executed only once” but then goes on to point out that “if a particular warrant execution has not yet ended and not all the described items have been found, it is permissible for the police to retrace their steps and search more carefully areas searched earlier.” LaFave, Search and Seizure, supra. LaFave explains that “[u]nder this `reasonable continuation rule’” there are two requirements that must be met if a subsequent search under the same warrant is to comply with the 4<sup>th</sup> Amendment: (i) the subsequent entry must “`be a continuation of the original search’”; and (ii) the decision to conduct a “`second entry to continue the search must be reasonable under the circumstances’’’. LaFave, Search and Seizure, supra (quoting U.S. v. Keszthelyi, 308 F.3d 557 (U.S. Court of Appeals for the 6^th Circuit 2002)).

The Keszthelyi court cited this case as a good example of when the reasonable continuation rule would apply to authorize a subsequent search under the original warrant:

In [U.S. v. Bowling, 351 F.2d 236 (U.S. Court of Appeals for the 6^th Circuit 1965)], . . . the police worked until midnight to copy all the serial numbers of the suspect items, and then checked the serial numbers overnight to determine whether the property was stolen. When they left the suspect's home, the police possessed a basis for believing that contraband remained in the residence, but chose to suspend the search until those suspicions could be confirmed. It seems apparent from these facts that the original search was not completed until the police were able either to dispel or confirm their suspicions about the equipment following a check of the serial numbers. Thus, the second entry was properly characterized as a continuation of the original search.

Moreover, the decision to suspend the search and return later if the equipment proved to be stolen was unquestionably reasonable. A more intrusive alternative existed that could have obviated the need for multiple entries-i.e., the police could have seized all of the equipment in the defendant's residence at the time of the initial search and checked it at their leisure. Nevertheless, when presented with circumstances which complicated their *ability to execute fully the warrant at the time of the initial entry, the police in Bowling made a reasonable decision to execute the warrant in a manner that required two entries, but also minimized the risk of undue interference with any legitimate property interest that the defendant may have had in the equipment.

U.S. v. Keszthelyi, supra. Keszthelyi court also cited U.S. v. Gerber, 994 F.2d 1556 (U.S. Court of Appeals for the 11^th Circuit 1993), as another case in which the reasonable continuation rule justified a subsequent search:

In Gerber, officers executed a warrant to search the defendant's vehicle on a Friday, but did not look under the hood on that day because they were unable to locate the lever to open the hood. Instead, the officers waited until the following Monday, at which time they were able to secure the assistance of a mechanic in opening the hood without damaging the vehicle. The Eleventh Circuit concluded that the search under the hood of the vehicle performed on the following Monday -- at which time the original warrant had expired-was a reasonable continuation of the original search. The court emphasized the fact that the decision to suspend temporarily the search until a mechanic was available was a reasonable one in the face of an `unexpected obstacle’ to the completion of their search.

U.S. v. Keszthelyi, supra.

So, there you have it: the “reasonable continuation rule” authorizes a subsequent entry into the “premises” to be searched and a subsequent search of those premises if the two conditions noted above are met. I only found a few cases applying the rule, but it seems, from them, that the most important factor is that the subsequent search is, in fact, a continuation of the original search. That, of course, is quite logical: The search warrant that authorized the original search is the only justification for the subsequent search so it follows that the subsequent search will be reasonable only insofar as it remains within the scope of the authorization the original warrant grants.

The real issue is whether, and to what extent, the reasonable continuation rule applies to computer searches. In the Speers case, the Arizona Court of Appeals rejected Speers’ argument that the subsequent search of his computers violated the 4^th Amendment:

A `search’ under the Fourth Amendment occurs “when an expectation of privacy that society is prepared to consider reasonable is infringed.’ . . . . When items are lawfully seized and then examined by the police, a subsequent examination by a law enforcement officer does not result in a constitutional violation because of the reduced expectation of privacy in the items. . . . Thus, `once an item in an individual's possession has been lawfully seized and searched, subsequent searches of that item, so long as it remains in the legitimate uninterrupted possession of the police, may be conducted without a warrant.’ U.S. v. Burnette, 698 F.2d 1038 (U.S. Court of Appeals for the 9^th Circuit 1983). As the Burnette court explained,

We believe our decision here is fully consistent with our prior decisions and with the policies underlying the Fourth Amendment's warrant requirement. Requiring police to procure a warrant for subsequent searches of an item already lawfully searched would in no way provide additional protection for an individual's legitimate privacy interests. The contents of an item previously searched are simply no longer private.

State v. Speers, supra. Speers had argued that “computers should be treated differently from other evidence for Fourth Amendment purposes `because they are able to hold a library's worth of personal information,’ citing U.S. v. Walser, 275 F.3d 981 (U.S. Court of Appeals for the 10^th Circuit 2001)”. State v. Speers, supra. The Arizona Court of Appeals found that it didn’t need to address this issue because it concerned

the scope of a permissible search of a computer. In contrast, Speers is not asserting the State was attempting to obtain evidence from the computers outside of the category of evidence described in the warrants authorizing the first examination of the computers. Instead, he is asserting the State should have obtained a new warrant before reexamining the computers. Because the second examination, regardless of when it occurred, did not infringe on any reasonable expectation of privacy Speers had in the computers, the State did not need to obtain a new warrant before the reexamination.

State v. Speers, supra.

The Arizona Court of Appeals therefore applies the reasonable continuation rule to the searches in the Speers case even though they involved subsequent “entries” and searches of personal property, rather than home at issue in Burnette and the vehicle at issue in Gerber. (I guess a vehicle is personal property, but since it’s a lot larger than a computer I’m not sure Gerber directly applies to the issue we’re addressing.)

One of the cases the Arizona Court of Appeals cited – Hell’s Angels Motorcycle Corp. v. McKinley, 360 F.3d 930 (U.S. Court of Appeals for the 9^th Cir. 2004) – involved a subsequent search of documents seized from a Hell’s Angels clubhouse. The Hell’s Angels sued the agent who had conducted the search, claiming – like Speers – that it violated the 4^th Amendment. Hell’s Angels Motorcycle Corp. v. McKinley, supra. The 9^th Circuit Court of Appeals rejected that argument for essentially the same reasons the Arizona Court of Appeals rejected Speers’ argument: It held that “Agent McKinley's subsequent search of these documents resulted in no constitutional deprivation” because they were originally seized pursuant to a warrant. Hell’s Angels Motorcycle Corp. v. McKinley, supra.

If the reasonable continuation rule can authorize subsequent searches of homes, cars and documents, I assume it must also authorize subsequent searches of computers, subject, of course, to the two requirements noted above.

Defamation, Qualified Immunity and The Howling Pig

This post is about a federal civil rights suit brought under 42 U.S. Code § 1983. As Wikipedia explains, 42 U.S. Code § 1983 traces its origins to the Civil Rights Act of 1871 and now

stands as one of the most powerful authorities with which State and federal courts may protect those whose rights are deprived. Section 1983 . . . provides a way individuals can sue to redress violations of federally protected rights, like the First Amendment rights and the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

This post is about the § 1983 suit Thomas Mink, “a student at the University of Northern Colorado” (UNC) brought against Susan Knox, “a deputy district attorney” in Greeley, Colorado. Mink v. Knox, 2010 WL 2802729 (U.S. Court of Appeals for the 10^th Circuit 2010). This is how the lawsuit arose:

Mink . . . created a fictional character, `Junius Puke,’ for the editorial column of his internet-based journal, The Howling Pig. The editorial column displayed altered photographs of Junius Peake, a UNC professor, wearing dark sunglasses and a Hitler-like mustache. Puke's editorial column addressed subjects on which Peake would be unlikely to write, in language he would be unlikely to use, asserting views that were diametrically opposed to Mr. Peake's.

Peake, who was not amused, contacted the Greeley police, who started investigating a potential violation of Colorado's criminal libel statute. . . . [T]he detective in charge prepared a search warrant affidavit to submit to the. . . district attorney for legal review. The deputy district attorney, Susan Knox, . . . approved the search warrant affidavit, which was identical to the warrant with respect to the eleven paragraphs listing the items to be seized. . . . The affidavit and warrant were presented to and approved by a magistrate judge. The Greeley police then searched the home where Mink lived with his mother and confiscated their personal computer, as well as written materials referencing The Howling Pig.

Mink . . . filed suit in federal district court against the City of Greeley, . . . the district attorney, Detective Warren, and . . . [Susan Knox], seeking damages for the search and seizure, among other things. The district court. . . ordered the City of Greeley to return `. . . the computer, and all contents thereof, seized following the search of [his] home.’ Thereafter, the district attorney issued a written `No File’ decision, concluding that the statements contained in The Howling Pig could not be prosecuted under the Colorado criminal libel statute.

The district court granted Knox's motion to dismiss the suit in its entirety, holding . . . that Mink's constitutional claims against Knox were barred by absolute immunity.

Mink v. Knox, supra. In an earlier opinion, the 10^th Circuit reversed the district court’s order dismissing the suit because it found Knox wasn’t entitled to absolute immunity. Mink v. Suthers, 482 F.3d 1244 (U.S. Court of Appeals for the 10^th Circuit 2007). Prosecutorial immunity, which includes absolute immunity and qualified immunity. is meant to protect prosecutors from civil liability for actions taken in the course of their duties. It’s analogous to sovereign immunity but differs in certain respects.

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court held that a state prosecutor who acted within the scope of his duties in initiating and pursuing a criminal prosecution and in presenting the state's case was absolutely immune from civil suit for damages for allegedly violating the defendant’s civil rights. Absolute immunity is unconditional; a prosecutor acting as a prosecutor is effectively immune from suit for actions taken in the course of that endeavor.

In its 2007 decision in the Minx case, the 10^th Circuit held that the district court erred in holding Knox was absolutely immune from Mink’s civil rights claims because absolute immunity “does not extend to `those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.’” Mink v. Suthers, supra (quoting Imbler v. Pachtman). The 10^th Circuit reversed the district court’s order and remanded the matter for the court to determine if Knox was entitled to qualified, or conditional, immunity from liability for those claims. Mink v. Suthers, supra.

On remand, the district court granted Knox’s motion to dismiss Mink’s lawsuit on the basis of qualified immunity, holding that “`a reasonable official in Knox's position could believe that the statements in The Howling Pig were not protected statements under the First Amendment and . . . that Plaintiff's . . . publishing such statements could subject him to criminal prosecution under the Colorado libel statute’”. Mink v. Knox, supra. In reviewing this decision, the 10^th Circuit noted that prosecutors and other government officials “’performing discretionary functions . . . are granted a qualified immunity . . . from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mink v. Knox, supra (quoting Archuleta v. Wagner, 523 F.3d 1278 (U.S. Court of Appeals for the 10^th Circuit 2008)).

Mink claimed that his rights under the 4^th Amendment were violated by “the search and seizure of his property based on an invalid warrant.” Mink v. Knox, supra. He argued that the warrant “lacked probable cause because no reasonable prosecutor could have believed that publishing The Howling Pig constituted a crime.” Mink v. Knox, supra. The 10^th Circuit noted that probable cause under the 4^th Amendment exists if the facts and

`circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ . . . The question therefore becomes whether a government official of reasonable caution, having reviewed the affidavit and the editorial column of The Howling Pig, would believe that this publication was libelous.

Mink v. Knox, supra (quoting Brinegar v. U.S., 338 U.S. 160 (1949)).

In assessing whether a government official of reasonable caution could have believed the statements in The Howling Pig were defamatory, the 10^th Circuit noted that courts have found that the 1^st Amendment protects statements constituting “parody, fantasy rhetorical hyperbole and imaginative expressions” because “no reasonable person would take these types of speech as true”, which means “they simply cannot impair one’s good name.” Mink v. Knox, supra (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)). The Milkovich Court noted that protecting these types of speech “provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” The 10^th Circuit also noted that while the Supreme Court has not decided if speech that falls into any of the above categories is protected if it involved a private citizen, rather than a public official or public figure, it and one of the other federal Courts of Appeal had held that the same standard applies to private citizens. Mink v. Knox, supra.

The 10^th Circuit then addressed the issue before it, i.e., whether the statements in The Howling Pig were defamatory:

The dispositive question is whether a reasonable person would conclude that the statements in The Howling Pig were actual statements of fact about Peake, or attributable to him, rather than a satirical spoof. . . . [T]he answer is no. . . . The Howling Pig humorously altered Mr. Peake's photograph to create the character of Junius Puke, its `editor.’ Another photo was altered to depict Peake/Puke made up as a character in the rock band KISS. Junius Puke covered subjects and used language that Peake, a professor of finance, surely would not have.

Mink v. Knox, supra. The court then noted that the detective who prepared the search warrant affidavit and application “provided Peake's complaint to him as the sole basis of the alleged defamatory content articulated in the affidavit. Thus, the affidavit said that `[Peake] told Detective Warren that the statements made on the website about him are false.’” Mink v. Knox, supra. Peake apparently provided the following examples:

1) The website uses his photograph and identifies him as the Editor in Chief Junius Puke.

2) The website states that he `gambled in tech stocks’ in the 90's.

3) The website states: The dark glasses are to avoid being recognized since he fears the good natured ribbing of his colleagues on Wall Street where he managed to luck out and ride the tech bubble of the nineties like a $20 whore and make a fortune.

4) The website contains many opinions and articles about The University of Northern Colorado, the Greeley Community and Northern Colorado. As this is an `editorial’ column, those statements are attributed to Mr. Puke, and therefore Mr. Peak [sic]. Mr. Peak [sic] feels that these opinions are not his but have been attributed to him.

Mink v. Knox, supra. The 10^th Circuit found that the district court judge “reached the only possible conclusion” in its 2004 order directing the City of Greeley to return Mink’s seized computer and other property to him:

`[W]hat's written in this case is satire. . . . [I]t is crass and vulgar, but that makes it no less protected by the First Amendment.’ . . . It is apparent from our review of the charged portions of the column on the editorial page of The Howling Pig that no reasonable reader would believe that the statements in that context were said by Professor Peake in the guise of Junius Puke, nor would any reasonable person believe they were statements of fact as opposed to hyperbole or parody. The comments asserted as defamation constituted satire in its classic sense. As such, they are protected speech under the First Amendment, and a state may not deem them to constitute libel, particularly criminal libel. . . . The district attorney recognized as much when he concluded that The Howling Pig could not be prosecuted under the statute.

Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink's property.

Mink v. Knox, supra. The 10^th Circuit held that the district court judge erred in granting Knox’s motion to dismiss Mink’s suit against her; it therefore reversed the court’s order and remanded the case for further proceedings. . . . which, of course, means Mink’s suit goes forward.

Chat Logs, Authentication and the Best Evidence Rule

I’ve done several posts on authenticating online communications, including one that deal with authenticating text messages and with a hearsay challenge to the admissibility of such messages. This post is about a recent case from Indiana in which the admissibility of chat logs was challenged on the basis that they weren’t properly authenticated and/or violated the best evidence rule.

The case is Stearman v. State, 2010 WL 3159827 (Indiana Court of Appeals 2010). The opinion we're going to analyze resulted from Brian Stearman’s appealing his conviction for child solicitation in violation of Indiana Code § 35-42-4-6(c)(1), which makes it a crime for someone who’s at least 21 years old to solicit a child who is between 14 and 16 years old for sexual intercourse.

This is how Stearman came to be charged with child solicitation:

On July 12, 2007, Noblesville Police Detective Charles Widner was in an online chat room, working undercover as part of the Child Exploitation Task Force. . . . Widner utilized Yahoo Instant Messenger with the profile name: sadams858. He also had a picture on the profile of a young female. [Stearman] initiated a conversation with Widner with an `instant message’ of you are cute’. Widner responded with `thanks ... asl? [age, sex, location?]’. [Stearman] replied, `i'm brian, in fishers. 36, single...with pic and Widner identified himself as Sandy, a fifteen-year-old girl from Fishers. [Stearman] continued his communication with `Sandy’ [the text of which is omitted here].

Widner recorded the entire chat by using `copy and paste’ from the `instant message box as it appear[ed],’ saved it to a Word document, and saved that document in a folder The document includes the screen names, time of each message, and all instant messages Widner used this method instead of the instant messenger archive because Yahoo Instant Messenger does not record the initial contact.

The next morning, Defendant initiated contact again with `Sandy’ . . . . [the text of that chat is also omitted here but in it Stearman arranged to meet “her” and another girl at a nearby location in a few minutes]. Widner used the same procedure as the day before to record the chat He then obtained [Stearman’s] information from the BMV, and with other detectives, went to the apartment complex. [Stearman] `was . . . apprehended before he exited the apartment complex’. . . .

Widner obtained a search warrant for [Stearman’s] residence . . . and seized nine computers Widner performed an `onsite preview’ of the computers at the police station and found Yahoo Instant Messenger on two computers . Detective Kimm examined the two computers and found the Yahoo archive chat from July 13 between [Stearman] and Widner.

Brief of Appellee, Stearman v. State, 2010 WL 3000342. (I omitted the substance of the chats (a) because I’m sure you can imagine what they said and (b) because they’d made this post way, way too long if I included them.) As I noted above, Stearman was charged with child solicitation, convicted by a jury and appealed. Stearman v. State, supra.

Prior to trial, Stearman filed a motion in limine to bar admission of the Word document memorializing the chat, claiming `Detective Widner had the ability to save the chat, in a Yahoo archive, but apparently failed to do so.’ . . . . Stearman claimed that because `the State has failed to save the [electronically stored information] in [its] original form, it is impossible for the State to authenticate the documents as required by Rule 901 of the Indiana Rules of Evidence. Stearman also claimed that because the chat was `pasted into a different format,’ its admission into evidence would violate the `best evidence’ rule. Following a hearing, the trial court denied Stearman's motion in limine.

Stearman v. State, supra. During Stearman’s trial Widner testified that

State's Exhibit 2 is the `chat log from July 12, 2007.’ He verified that the exhibit is `a true and accurate and full and complete copy of the exact chat that [he] had with’ [Stearman]. Widner further testified that State's Exhibit 4 is the chat log from July 13, 2007,’ and is `a complete and accurate copy of the full chat log.’ Widner explained that he attempted to retrieve the chats from the archive in the computer, but the instant messenger program was removed, and `it took off the archive chats with it as well.’

Stearman v. State, supra.

The Indiana Court of Appeals first addressed Stearman’s argument that the chat logs had not been properly authenticated. As I’ve explained in earlier posts, each U.S. state and the federal judicial system has its own rules of evidence, each of which will impose some requirement that evidence be “authenticated” in order to be admissible. Rule 901(a) of the Federal Rules of Evidence says the “requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims” it to be. Rule 901(b) gives some examples of how evidence can be authenticated, i.e., testimony by someone who can identify it; an expert’s comparing it with “specimens which have been authenticated;” distinctive characteristics; public records; or any other method prescribed by law. The rule at issue in the Stearman case was Indiana’s version of Federal Rule 901(a).

In addressing this issue, the Court of Appeals noted that under Indiana law,

authentication is established by evidence that is sufficient to support a finding that the matter in question is what the proponent claims it is. Indiana Evidence Rule 901(a). This requirement is satisfied by `[t]estimony of a witness with knowledge that a matter is what it is claimed to be.’ Indiana Evidence Rule 901(b). Absolute proof of authenticity is not required. Fry v. State, 885 N.E.2d 742 (Indiana Court of Appeals 2008). Thus, when the evidence establishes a reasonable probability that an item is what it is claimed to be, the item is admissible. Thomas v. State, 734 N.E.2d 572 (Indiana Supreme Court 2000).

Stearman v. State, supra. The court then rejected Stearman’s first argument:

Detective Widner testified that the entire online conversation he participated in was copied onto a Word document and saved in a folder. And, as noted above, the exhibits admitted at trial were the printouts of the chat that were saved to the file folder. Detective Widner knew that the printed conversation is what it was claimed to be. Thus, we conclude that Detective Widner validly authenticated the exhibits pursuant to the requirements of Indiana Evidence Rule 901(b)(1).

Stearman v. State, supra.

The Court of Appeals then addressed Stearman’s best evidence rule argument. As I’ve noted in earlier posts, the best evidence rule dates back at least to the 18^th century, when copies of documents were usually made by hand, i.e., were hand-written. As Wikipedia explains, the premise of the rule is that the “best” – I,e., most likely to be accurate – evidence was the original, since errors (or fraud) might creep into a copy.

Stearman argued that “the printouts of the online chat failed to satisfy the requirements of the best evidence rule” because “the chat log was `not the original, but instead is merely a copy pasted into a different format’”. Stearman v. State, supra. The Court of Appeals began its analysis of his argument by noting that under Indiana’s version of the rule – which is codified in Indiana Rule of Evidence 10002 – to “prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.” Stearman v. State, supra. The court also noted, however, that “in the context of information stored in a computer, `any printout or other output readable by sight, shown to reflect the date accurately is an “original”’”. Stearman v. State, supra (quoting Indiana Rule of Evidence 1001(3).

The Court of Appeals then rejected Stearman’s claim that admitting the chat logs had violated the best evidence rule:

[T]he recorded online conversation was saved in a Word document and stored in a folder. The document identifies the screen names, the time of each message, and the content of all instant messages. And Widner testified that the printouts accurately reflected those conversations. Thus, because the computer printouts constitute `originals’ in accordance with [Indiana Evidence Rule 1001] we conclude that the requirements of the best evidence rule were satisfied. . . .

[W]e also note that an original is not required if the original has been lost or destroyed `unless the proponent lost or destroyed [the original] in bad faith.’ [Indiana Evidence Rule 1004(1)]. Here, the evidence showed that although Detective Widner attempted to retrieve the chats from the archive in his computer, the instant messenger program was removed, and `it took off the archive charts with it as well.’ Hence, the instant message conversations no longer existed, and the only recording of that information is the copy Widner saved. Stearman has made no showing that Widner acted in bad faith when he saved the conversations by copying them into a Word document file rather than by saving the Yahoo! Instant Messenger archive. Thus, even if we concluded solely for the sake of argument that the computer printouts were not `originals,’ they were nonetheless admissible.

Stearman v. State, supra. The Court of Appeals consequently affirmed Stearman’s conviction and, in so doing, upheld the sentence imposed by the trial court: “three years of incarceration with 180 days executed and two-and-one-half years suspended with two years on probation.” Stearman v. State, supra.

Abandonment Not a Defense to an Attempt Charge

As I’ve noted before, “attempt” is an inchoate, or incomplete, crime. As Wikipedia explains, the “essence of the crime of attempt is that the defendant has failed to commit the actus reus (the Latin term for the `guilty act) of the full offense, but has the direct and specific intent to commit that full offense.”

What Wikipedia calls the “full offense” I call the target crime . . . because, as I’ve noted before, there’s no such thing as a free-standing attempt crime. You attempt to commit what the law calls a substantive crime, i.e., a “real” crime . . . so you can attempt to kill someone (attempted murder), rob someone (attempted robbery) or attempt to burn down a structure (attempted arson).

The essence of attempt, as I’ve noted before, is that you don’t actually complete the target crime: you’re interrupted before you can complete it or you do everything you can to commit the target crime but circumstances beyond your control make that impossible (as when you, determined to murder John Doe, shoot him 20 times, only to find out that he’d died of a heart attack an hour earlier).

Under the influential Model Penal Code, abandonment is a defense to a charge of attempt. As Wikipedia explains, under the Model Penal Code “the defendant is not guilty of an attempt if they (1) abandon the effort to commit the crime or prevent the crime from being committed, and (2) their behavior manifests a complete and voluntary renunciation of the criminal purpose (MPC § 5.01(4)).” As Wikpedia also notes, abandonment is not a defense to an attempt charge under the Model Penal Code if it’s motivated by any of the following: a desire to postpone the commission of the crime to a more convenient time or victim; a reaction to changed circumstances that make it more likely the perpetrator will be caught; or a reaction to circumstances that make the commission of the crime harder than it originally seemed to be. Model Penal Code § 5.01(4).

This post is about a case in which the U.S. Court of Appeals for the 8^th Circuit had to decide if abandonment is a defense to a charge of attempted enticement of a minor to engage in illicit sexual activity in violation of 18 U.S. Code § 2422(b). The case is U.S. v. Young, __ F.3d __, 2010 WL 2802424 (2010), and this is how it arose:

On November 4, 2008, . . . [James] Young, a 33-year-old married father of three, entered an adult online chat room entitled `romance, adult,’ on Yahoo! Instant Messenger. Young utilized the screen name `Funminqc’ and sent an instant message to . . . `Erj94e.’ . . . `Erj94e’ responded and disclosed that her name was `Emily’ and that she was a 14-year-old female. Unbeknownst to Young, in reality `Emily’ was undercover Dewitt, Iowa Police Officer Shai Cruciani. . . .

Emily and Young chatted for approximately one hour. After Emily disclosed that she disliked band, Young told Emily he worked as an engineer for Alliant Energy, although, in reality, he was a band director at a high school in Clinton, Iowa. Young asked Emily if she had a boyfriend and she said she did not. Young also told Emily he was not married, discussed the possibility of a future meeting and provided Emily with his cell phone number. Young sent Emily a picture of himself, and Emily sent Young a photograph that had been digitally modified to appear to be of a 14-year-old female.

Young and Emily chatted online and exchanged emails on several occasions between November 4 and November 13, 2008. . . . As the chats progressed, they became more sexually explicit . . . including references to sexual acts the two might perform with each other. . . .

Emily eventually agreed to meet Young. . . . Emily told Young she had seen a Super 8 Motel . . . in DeWitt. . . Young offered to obtain a room. . . .Young warned Emily. . . . not to tell anyone because `[he] would be locked up’ for `being with a minor.’ . . .

Young and Emily exchanged emails to arrange . . . their meeting . . . on November 13, 2008. . . . [T]hey decided she would walk to the Super 8. . . . dressed in jeans and a pink coat. Young planned to arrive at 3:00 p.m., check into a room, and leave a note containing Emily's name and his room number on the windshield of his car.

On November 13, . . . Young drove to the Super 8 followed by undercover officers. Upon his arrival . . . at 3:10 p.m., he attempted to reserve a room . . . [but] his credit card was declined. Young told the motel clerk that he was going to withdraw cash and then return. Young next drove to [an ATM, where he] appeared to attempt a cash withdrawal. His account . . . had insufficient funds and Young called the Super 8 clerk and cancelled his reservation due to his inability to secure any payment.

Young next drove to a . . . school near the Super 8. . . . [and] eventually to Westbrook Park. Officer Gordy, another undercover officer with the Dewitt Police Department, was standing in the park dressed in jeans and a pink coat. When Young saw the undercover officer, he began honking and yelling. Officers then arrested Young.

U.S. v. Young, supra. Young was charged attempted enticement of a minor to engage in illicit sexual activity in violation of 18 U.S. Code § 2422(b). U.S. v. Young, supra. After being charged, he claimed the online conversations “were merely fantasies,” that he went to the Super 8 “out of concern for Emily’s safety”, used a “`maxed out credit card’” because he “never expected to obtain a room”, and drove around searching for Emily “to ensure that she was safe.” U.S. v. Young, supra. At trial, he asked that the following instruction on an abandonment defense be given to the jury:

One of the issues . . . is whether the defendant abandoned his attempt. If the defendant abandoned his attempt he must be found not guilty. The government has the burden of proving beyond a reasonable doubt that the defendant did not abandon his attempt. When the actor's conduct would otherwise constitute an attempt it is an affirmative defense that he abandoned his effort to commit the crime . . . under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. Renunciation of criminal purpose is not voluntary if it is motivated . . . by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another by similar objective or victim.

U.S. v. Young, supra (quoting U.S. Court of Appeals for the 8^th Circuit Model Jury Instructions § 9.05 (2007)). The judge refused to give the instruction, Young was convicted and appealed, claiming the judge erred in not giving the instruction. U.S. v. Young, supra. The factual basis for his claim to have abandoned the attempt to entice “Emily” was based on Young’s claim that “his change of heart was corroborated” by the following facts: “he did not obtain a motel room; did not obtain cash to go back and pay for the room; cancelled the room by telephone; called his wife and said he would be home `shortly’” and “was pointed in the direction of home when apprehended.” Appellant’s Brief. U.S. v. Young, 2010 WL 341471.

The 8^th Circuit Court of Appeals began its analysis of Young’s argument by noting that the issue “of whether a defendant is entitled to an abandonment defense once an attempt has been completed . . . is an issue of first impression in our circuit”, i.e., the 8^th Circuit hadn’t decided this issue before. U.S. v. Young, supra. It noted that all of the other U.S. Circuit Courts of Appeals that “have faced this issue have either held that a defendant cannot abandon a completed attempt or alluded to such a determination.” U.S. v. Young, supra. The Court of Appeals noted that the U.S. Court of Appeals for the 6^th Circuit, “rejected the Model Penal Code's approach and held that `abandonment and renunciation, however characterized, do not provide a defense to an attempt crime.’” U.S. v. Young, supra (quoting U.S. v. Shelton, 30 F.3d 702 (1994)). The 6^th Circuit essentially held that once a defendant completes the attempt, it cannot be abandoned.

And the 8^th Circuit reached basically the same conclusion in the Young case:

Because our circuit has already determined that the abandonment defense: (1) can apply to uncompleted attempt crimes and (2) has been rejected as a defense to completed crimes other than attempt, logically flowing from this analysis is the conclusion that, when a defendant has completed the crime of attempt; i.e., has the requisite intent and has taken a substantial step towards completion of the crime, he cannot successfully abandon the attempt because the crime itself has already been completed. We therefore adopt the Sixth Circuit's approach in Shelton, reject the Model Penal Code approach, and hold that the defense of abandonment is not warranted once a defendant completes the crime of attempt. . . .

U.S. v. Young, supra. It consequently rejected Young’s abandonment argument:

Young completed his attempt because he had the requisite intent and took a substantial step towards completion of the enticement crime, all supported by the evidence discovered in his car, his travel to the hotel and attempt to check in, and his search for Emily once he could not obtain the hotel room. Because Young completed `the essential elements’ of his attempt, . . . he cannot now claim that he abandoned that plan. We therefore conclude that the district court committed no error in its decision to refuse Young's proffered abandonment instruction.

U.S. v. Young, supra (quoting U.S. v. Shelton, supra). The 8^th Circuit’s holding seems to be consistent with how other courts have approached this issue. Wikipedia notes that “many jurisdictions do not recognize abandonment” as a defense to an attempt crime, and a law review article points out that “many courts have resisted the abandonment defense because they believe attempt should be treated like any other crime, i.e., that once a defendant has fulfilled the elements of a crime, later abandonment or remorse should not remove liability.” Robert E. Wagner, A Few Good Laws, 76 University of Cincinnati Law Review 1043, 1071 (2010).

In other words, once I commit murder I can’t abandon the crime of murder, so attempt crimes should be treated the same way once the defendant has reached the point at which he/she has “attempted” the target crime. The argument for recognizing abandonment as a defense is that, since attempt crimes are by definition incomplete crimes, recognizing abandonment can give criminals a reason to change their mind and not proceed with the attempt (which, of course, assumes they’re familiar with the nuances of attempt law).