OnStar, Rental Vehicles and the 4th Amendment

I’ve done a couple of posts about cases in which law enforcement officers’ use of OnStar listen in on conversations occurring in a vehicle violates the 4^th Amendment.

As I explained in the post I did last year, a defendant in this situation is arguing that the use of OnStar to track his/her movements constitutes a “search” under the 4^th Amendment and therefore must be done pursuant either to a search warrant or a valid exception to the warrant requirement.

As I noted in that post, the court in that case – an Ohio case – held that the 4^th Amendment wasn’t implicated because the monitoring in that case was done by an OnStar employee – a private citizen – which meant the 4^th Amendment wasn’t implicated by the monitoring. As I’ve explained in other posts, the 4^th Amendment only protects you from searches and seizures conducted by agents of the state, i.e., by law enforcement.

This post is about a case that involved a different use of OnStar: using it to track someone’s movements in a vehicle. The case is U.S. v. Dantzler, 2010 WL 2740003 (U.S. District Court for the Western District of Louisiana 2010), and this is how it arose:

Riley D. Dantzler came to the attention of area law enforcement agencies . . . during their investigation of narcotics distribution . . . in Morehouse Parish, Louisiana. . . . [T]he investigation uncovered that Dantzler of Houston was the supply source for crack cocaine, powder cocaine, and marijuana for the Bastrop area. . . .

[T]he [Morehouse Parish Sheriff’s Office] (MPSO) learned . . . Dantzler would be delivering . . . cocaine to Morehouse Parish. The investigation revealed that . . . Dantzler had rented a 2009 Chevrolet Tahoe bearing Texas License STY440 and VIN 1GNEC23X9R232443 from Enterprise Leasing of Houston. The Tahoe was equipped with the OnStar Global Positioning System that was serviced by OnStar, with an account in the name of Enterprise Leasing of Houston, Texas. . . .

[T]he District Attorney . . . incorporated the[se] . . . facts into a motion he submitted to the 4th Judicial District Court . . . to obtain an order compelling OnStar . . . to help the MPSO track the Tahoe. . . . Deputy Balsamo . . . confirmed . . . the facts in the motion, via an affidavit. . . . Judge Leehy issued an order that . . . required OnStar to furnish the MPSO with . . . assistance necessary to monitor the Tahoe. . . .

On December 11, 2009, at approximately 3:00 p.m., Balsamo contacted Trooper Crooks, and told him that, according to OnStar, Dantzler was en route to Louisiana from Houston. . . . Troopers Crooks and Jordan traveled to Haughton, Louisiana . . . and at . . . initiated surveillance for Dantzler at milepost 33 of Interstate 20, on the eastbound entrance ramp. Some 50 minutes later, an OnStar representative contacted Crooks on his cell phone and helped him identify Dantzler's vehicle as it passed the troopers' location. Crooks entered the interstate, caught up to the Tahoe, and confirmed the vehicle's license plate number. . . . At . . . 5:30 p.m., Crooks contacted Trooper Peters and advised him Dantzler was eastbound on I-20, and possibly transporting . . . cocaine.

U.S. v. Dantzler, supra. Peters followed the Tahoe and saw the “driver-side tires cross the yellow line that separates the travel lane from the median”, twice, so he “initiated a traffic stop of the Tahoe.” U.S. v. Dantzler, supra. After they went through the basics of the traffic stop, Peters asked Dantzler if he could search the Tahoe; Dantzler said he had ecstasy in the console, which he’d be glad to retrieve for Peters. U.S. v. Dantzler, supra. Peters told Dantzler he’d just given the trooper probable cause to search the car, which he did, finding ecstasy and cocaine. U.S. v. Dantzler, supra.

After he was indicted on federal drug charges, Dantzler moved to suppress all the evidence seized from the Tahoe, which resulted in the federal district court judge’s addressing the issue as to whether the OnStar monitoring of Dantzler’s movements constituted a “search” under the 4^th Amendment. U.S. v. Dantzler, supra. Since the monitoring was not conducted pursuant to a search warrant or an exception to the warrant requirement, it would violate the 4^th Amendment – and the evidence would be suppressed – if the monitoring was, in fact, a search. U.S. v. Dantzler, supra.

In ruling on this issue, the federal judge therefore had to decide if the OnStar monitoring was a search. As I’ve noted in an earlier post, most courts have held that using GPS devices to track someone’s movements isn’t a 4^th Amendment search under the Supreme Court’s decision in U.S. v. Knotts, 460 U.S. 276 (1983). As I noted in those posts, the Knotts case involved law enforcement’s use of a “beeper” (1980s technology) to track Knotts movements along public highways. The Knotts Court held that doing this wasn’t a 4^th Amendment search because you have no reasonable expectation of privacy in your movements in public places.

The Knotts Court applied the test the Supreme Court enunciated in Katz v. U.S., 389 U.S. 347 (1967) in holding that monitoring the beeper wasn’t a search. As I’ve noted in other posts, under Katz, I have a 4^th Amendment expectation of privacy in a place or thing if (i) I subjectively believe it’s private and (ii) society accepts my belief as objectively reasonable. The Katz Court held, as I’ve noted before, that it was a search for the FBI to intercept calls Katz made from a phone booth because (i) Katz believed the calls were private and (ii) society in the 1960s found that belief to be objectively reasonable.

The judge also relied on the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which, as I’ve noted, held that you have no expectation of privacy in information you knowingly share with a third party. In Smith, the Court held that Smith had no 4^th Amendment expectation of privacy in his phone records (calls made, calls received) because he knowingly shared that with the phone company.

Now, back to Dantzler: The federal judge found that he could not “satisfy either prong” of the Katz test used to determine if someone had a reasonable expectation of privacy:

First, although [Dantzler] . . . leased the Tahoe, and thus enjoys some . . . possessory interest therein, he has not adduced any evidence that he subjectively believed his movements in the vehicle would remain free of monitoring -- either visually or electronically, given the preexisting installation of the OnStar system in the vehicle. For instance, there is no evidence that Dantzler did not know that the GM-manufactured Tahoe was installed with the OnStar system. There also is no evidence that Dantzler's rental agreement with Enterprise or OnStar's subscription agreement with Enterprise, precluded monitoring of the vehicle's travels via GPS or disclosure of real-time monitoring data to third-parties, including law enforcement.

U.S. v. Dantzler, supra. The judge also explained that the OnStar system revealed

no more information than law enforcement officers could have observed from constant surveillance of the vehicle from the time that it was rented in Houston until the time of the stop. . . . Moreover, this is not a case where authorities physically installed a tracking device on [Dantzler’s] vehicle. Rather, the officers merely accessed information that defendant's rented vehicle had transmitted to a third-party monitoring service.

U.S. v. Dantzler, supra. The federal judge then explained that Dantzler either

knew or should have known that he was renting an OnStar equipped vehicle that was capable of transmitting the vehicle's location to a monitoring service. As a result, [he] accepted the risk that the information that the tracking system transmitted to the third-party monitoring service could be forwarded to others. See Smith v. Maryland. . . .

U.S. v. Dantzler, supra. The judge then held that

[Dantzler] has failed to establish a reasonable expectation of privacy in the movements of his OnStar-equipped rental car as it traveled upon public thoroughfares, and thus, the authorities' solicitation and receipt of tracking information from a third-party monitoring service subscribed to by the vehicle owner did not constitute a `search’ . . . under the Fourth Amendment.

U.S. v. Dantzler, supra.

Dantzler also challenged the validity of the court order that required OnStar to track the Tahoe’s movements, but he lost on this argument, too:

Although [Dantzler] trumpets the fact that the court order was issued to a Michigan corporation, for a vehicle that was rented in Texas, there is no evidence that Louisiana law enforcement officials acted upon any information provided by OnStar until the vehicle approached the Louisiana border. It was not until the vehicle passed the officers' surveillance point in Louisiana that an OnStar representative actively assisted the state trooper to confirm that the vehicle had passed his vantage point.

U.S. v. Dantzler, supra. I don’t have access to Dantzler’s brief, so all I know is what the judge says in this opinion. According to the judge, Dantzler argued that the evidence had to be suppressed “because the court order issued herein exceeded the jurisdictional boundaries of the issuing court under Louisiana law.” U.S. v. Dantzler, supra. The judge did not directly address this issue because he found that the issue Dantzler’s motion to suppress raised wasn’t “whether the state officials’ actions in arresting him were `lawful’ under state law”, but was whether “the actions of the state officials” violated the 4^th Amendment. U.S. v. Dantzler, supra.

MySpace Alibi

I’ve done posts on evidentiary use of materials posted on MySpace, but this is about something different: using MySpace as an alibi. It’s the only case I’ve found in which someone used (tried to use) MySpace (or Facebook, or a similar site) as an alibi.

As Wikipedia explains, in law an alibi is a “mode of defense under which a defendant proves or attempts to prove the person was in another place when the alleged act was committed” and is therefore innocent. As this website explains, when a defendant raises an alibi defense, that “does not shift the burden of proof away from the prosecution . . . to prove every element of the crime” with which the defendant is charged. As it also notes, the defendant has to raise the alibi and it is then up to the prosecution to disprove it beyond a reasonable doubt.

As always, we’ll start with the case and the facts that led to the MySpace alibi issue. The case is People v. Calderon, 2010 WL 3505971 (California Court of Appeals 2010), and this is how it arose:

On December 1, 2008, about 11:00 p.m., Alvaro Ortega started to enter the lobby of his apartment building. There was a man in front of him opening the door and a man behind him. The man behind him grabbed him and pushed him into the door. Ortega threw his elbow at the man and in doing so turned around. Ortega later identified the man who grabbed him as [Daniel Calderon] The other man pulled a handgun partially out of his pocket.

[Calderon] yelled at Ortega in English. Ortega did not understand him. Ortega was in fear for his life. [Calderon] pulled Ortega's iPhone out of his pocket and kicked him. Ortega leaned against the wall. One of the men kicked him in the chest. He fell to the ground and was kicked. Ortega then felt a blow to his head with a hard object that he believed was the gun. The men took his property and ran off.

Mario Cabrera was getting out of his car near the apartment building. He saw two men running away. . . . Ortega yelled for help. When Ortega and Cabrera were closer . . . Ortega said he had been robbed. He asked Cabrera to call the police. Ortega's nose and mouth were bleeding. He had cuts on his head and his mouth. . . . Cabrera called 911 and stayed with Ortega until the police came.

Ortega told police the robbers were two Hispanic males about 18 to 19 years old. They were both about five feet six inches tall and weighed about 145 pounds. One was wearing black pants and a black hoodie, the other a white t-shirt and blue pants. He said the one in black had the gun. The one behind him at the start of the robbery was slightly shorter and skinnier.

Two days after the robbery, police showed Ortega a book containing about 600 photos. [Calderon]'s photo was in the middle of the book. When Ortega reached it, he slowed and put his finger on that page. He finished looking through the book, then returned to the page with [Calderon]'s photo and identified [Calderon] as one of the robbers. . . .

People v. Calderon, supra. Calderon was charged with and convicted of one count of second degree robbery in violation of California Penal Code § 211 and one count of assault with a deadly weapon in violation of California Penal Code § 245. People v. Calderon, supra. He appealed, raising several issues, only two of which we’re concerned with.

One is Calderon’s argument that the trial court erred in giving the jury this instruction:

`If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can reasonably be expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable.’

People v. Calderon, supra (quoting California Jury Instructions—Criminal No. 2.62). In addressing this argument, the Court of Appeals explained that

[i]f a defendant fully accounts for his whereabouts and denies the crime, the mere fact that a defendant's story is contradicted by other prosecution evidence does not support the giving of the instruction. . . . If a defendant provides an explanation for his whereabouts which seems implausible or bizarre, [it] may be given.

People v. Calderon, supra. The Court of Appeals agreed with Calderon that there was

no evidence which he failed to explain or deny. To the extent that respondent contends that appellant offered an alibi which was implausible or bizarre, we do not agree. [Calderon] testified that he was on the computer playing poker through the website MySpace at the time of the crimes in this case. Records from that website showed that someone logged on [his] account at 11:03 p.m. on December 1, 2008, the night of the robbery and assault in this case. [Calderon] testified that he did not share his MySpace password with anyone. There is nothing implausible or bizarre about this alibi.

People v. Calderon, supra. The Court of Appeals also found, however, that the error wasn’t prejudicial because it found “no reasonable probability that [Calderon] would have received a more favorable verdict if the instruction had not been given.” People v. Calderon, supra. That, then, disposed of this issue.

The Court of Appeals then turned to the second argument we’re concerned with: Calderon argued that the prosecutor “committed prejudicial misconduct during closing argument by communicating to the jury that [Calderon] had the burden of proving his alibi, and that this error violated his federal constitutional rights.” People v. Calderon, supra. The Court of Appeals explained that a prosecutor’s conduct violates the 14^th Amendment to the U.S. Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” People v. Calderon, supra.

Factually, Calderon based his argument on this argument by the prosecutor:

`Beyond a reasonable doubt. Now, the defense put up innocence and guilt. And you'll see a jury instruction that tests reasonable explanations. If there are two reasonable explanations, and you all concur that they both could have happened, then you must find the explanation in favor of the defendant, and you must acquit.

But I want to point this out to you: By acquitting this defendant of these charges and accepting his explanation that at 11:04, he was in his motel room on a laptop logging into MySpace playing poker that you acquit him of these charges, then you are necessarily accepting the defendant's version of events. You are finding that that is, in fact, what he was doing.’ (Italics added.)

Following [Calderon’s] objection, the prosecutor continued: `You have two versions of the events. You have the defendant's, which I've already gone over for you. It's not credible.’

People v. Calderon, supra. Calderon argued that the language italicized above (in the court’s opinion) “told the jury” that to acquit “they had to accept his version of events, and that this shifted the burden of proof” to him. People v. Calderon, supra. The Court of Appeals didn’t agree:

In his closing argument, the prosecutor argued that [Calderon] was not credible, and that someone else at [his] motel could have logged into [Calderon’s] MySpace account for him, or that [Calderon] could have logged in from another location. The prosecutor then reminded the jury that in order to convict [Calderon], `you must find beyond a reasonable doubt that [he] committed these five . . . elements of a robbery. And I want to go through them and submit to you that all five elements have been proven.’ . . .At the conclusion of the argument, the prosecutor stated, `I submit to you that it's been proven beyond a reasonable doubt’ that [Calderon] robbed the victim. . . . Thus, the prosecutor twice clearly told the jury that the People had the burden of proving appellant's guilt.

People v. Calderon, supra. The court explained that in responding to the prosecutor’s argument about the log in, Calderon’s attorney directed the jury’s attention to another instruction, one that told them that “if there are two reasonable interpretations of circumstantial evidence, and one points to the defendant's innocence and the other to guilt, the jury should adopt the one that pointed to innocence.” People v. Calderon, supra. The Court explained that in the language italicized above, the prosecutor was responding to this defense argument, arguing that for this instruction to apply and “require an acquittal, the jury would have to find that [Calderon’s] explanation of the log in was reasonable.” People v. Calderon, supra (emphasis in the original).

The Court of Appeals found that this was “a correct statement of the law. The prosecutor’s argument cannot reasonably be understood as telling the jury they could only acquit if [Calderon] had proven his alibi.” People v. Calderon, supra (emphasis in the original). So Calderon lost on both of these issues. (He won on another issue, though, which resulted in his sentence being reduced from six years to five.)

Authenticating Digital Evidence Produced by Yahoo!

I’ve done several posts on authenticating digital evidence, including evidence from online sources. This post is about a case in which a federal district court judge was called upon to rule on the potential admissibility of digital evidence in a context I haven’t addressed before.

The case is U.S. v. Cameron, __ F.Supp.2d __, 2010 WL 3238326 (U.S. District Court for the District of Maine 2010) and it involves a motion in limine. As Wikipedia explains, a motion in limine “is a motion made before the start of a trial requesting that the judge rule that certain evidence may, or may not, be introduced to the jury in a trial.”

The motion in limine in this case was filed by James Cameron, who had been indicted on federal charges of transporting, receiving and possessing child pornography. U.S. v. Cameron, supra. Cameron’s motion in limine asked the judge to “exclude from trial digital images and other related material derived from Yahoo!, Google, and the National Center for Missing and Exploited Children (NCMEC).” U.S. v. Cameron, supra. This is the context from which the motion arose pursuant to a:

mandatory reporting requirement in 18 U.S. Code § 2258A, Yahoo! made twelve reports to NCMEC that [it] had detected the transmission of child pornography by Yahoo! subscribers to Yahoo! photo albums. An investigation followed. NCMEC transmitted a report of its findings with attached digital materials to Maine law enforcement authorities and as a consequence, five search warrants were issued: two state search warrants and three `non-conventional’ search warrants. Maine law enforcement officials executed the state search warrants and searched Cameron's office and home computers; unidentified Yahoo! and Google technicians executed the `non-conventional’ search warrants of the computer servers. Evidence of child pornography was uncovered during the search of these computers and computer servers, and an indictment . . . followed. Cameron expects the Government will be unable to produce as witnesses any Yahoo! or Google technicians with personal knowledge about Yahoo! or Google's collection of the digital evidence.

U.S. v. Cameron, supra. The judge noted in a footnote that Cameron referred to the three warrants as “non-conventional warrants” because

the government availed itself of the provisions of 18 U.S. Code § 2703(g) (providing that `the presence of an officer shall not be required for service or execution of a search warrant issued in accordance with this chapter requiring disclosure by a provider of electronic communications service or remote computing service of the contents of communications or records or other information pertaining to a subscriber to or customer of such service’).

U.S. v. Cameron, supra. In his motion in limine, Cameron divided the digital evidence he believed the government would produce at trial into two categories, “based on source":

The first and second are what Yahoo! sent to NCMEC when it first reported it had found illegal pornography on what the Government says is Cameron's computer and what Yahoo! found when it executed the search warrant executed pursuant to 18 U.S. Code § 2703(g). Turning to the first category, he explains that . . . Yahoo! `made 12 reports (including attachments of digital images and video clips found under various “profiles”) to NCMEC.’ He says the Government is expected to move for the admission of that digital evidence at trial as purported proof that Cameron received and/or transmitted illegal pornography over the internet during an 18-month period. . . .’ Cameron then refers to a separate set of Yahoo! evidence: the material Yahoo! technicians compiled in response to a search warrant the Court issued under 18 U.S. Code § 2703(g). Cameron contends the Government will seek to introduce these images through the testimony of a Yahoo! technician `who does not have personal knowledge of the electronic evidence seizures.’

A second source is NCMEC, which received the Yahoo! reports of child pornography, evaluated it, and sent a report to state authorities in Maine. Cameron states that the Government will call a NCMEC witness, who will have general knowledge of its procedures but will have no personal knowledge of `the collection of the digital evidence by Yahoo! technicians.’ Cameron thus anticipates that the Government will seek to introduce evidence in each of these categories by proffering a foundational witness with general knowledge of Yahoo!'s business practices but no personal knowledge about the nature of the search that led to the discovery of these images.

U.S. v. Cameron, supra.

Cameron argued that the child pornography seized by Yahoo! had to be excluded because allowing the government to introduce “`incriminating evidence with testimonial qualities by means of a documentary exhibit’” would violate his 6th Amendment right to confront witnesses against him. U.S. v. Cameron, supra (quoting Cameron’s motion). In making this argument, Cameron relied on the Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), in which the Court held a defendant had a 6^th Amendment right to confront state laboratory analysis who had certified that a substance found in his possession was cocaine. Cameron analogized the Yahoo! technicians to the forensic analysts in Melendez-Diaz, and argued that he had the absolute constitutional right to cross-examine them. U.S. v. Cameron, supra. The prosecution argued that the 6^th Amendment Confrontation Clause didn’t apply here because “the records are non-testimonial business records.” U.S. v. Cameron, supra.

As I’ve noted in earlier posts, Rule 803 of the Federal Rules of Evidence lists several categories of evidence that are “not excluded by the hearsay rule, even though the declarant is available as a witness.” Rule 803(6), which codifies what is known as the “business records exception” to the default rule barring the use of hearsay, says the following evidence is not excluded by the hearsay rule:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness. . . .

Cameron argued that the government should not be allowed to introduce the Yahoo! evidence because it would not “will not call as a foundational witness any of the technicians who actually performed the Yahoo! search” of Cameron's Yahoo! account” but would instead rely on “someone familiar with how Yahoo! goes about such searches, but not someone familiar with how Yahoo! went about this one.” U.S. v. Cameron, supra. The government argued, in response, that its witness “`will establish that the Yahoo! records were kept in the course of a regularly conducted business’” and will “confirm that `when executing the warrants, Yahoo! technicians retrieved all of the information” associated with the screen names the government claimed Cameron used. U.S. v. Cameron, supra.

The judge held that he could “not make a final determination” at this stage of the proceedings but found that the “proffered foundational testimony” the government would rely on was sufficient to justify his denying Cameron’s request to prevent the government from introducing the digital Yahoo! evidence. U.S. v. Cameron, supra. He noted that at trial the “Government need not call each of the technicians who did the search so long as it” presented a witness who can “`explain and be cross-examined concerning the manner in which the records are made and kept.’” U.S. v. Cameron, supra.

The judge also rejected Cameron’s argument that introducing the evidence without letting him cross-examine the technicians who actually conducted the Yahoo! searches violated his rights under the Confrontation Clause:

His objection does not. . . go to the admissibility of the records themselves, only the foundation for their admission. In other words, Cameron does not contend that he should be permitted to cross-examine the people who created the images and writings. Such an objection would necessarily fail because the Supreme Court has concluded that the business records exception does not raise Confrontation Clause issues.

U.S. v. Cameron, supra. The judge noted that if the “Government fails to sustain its burden” at trial of presenting adequate foundational witnesses to justify admitting the evidence under Rule 803(6), the evidence would be excluded – “not because of the Confrontation Clause . . . but because of the foundational requirements of the rules of evidence.” U.S. v. Cameron, supra.

Cameron also made a similar argument as to “the contraband images attached to the NCMEC reports” but lost on this one, too. U.S. v. Cameron, supra. The prosecution argued that the NCMEC records were business records – i.e., non-testimonial evidence – and therefore would be admissible under Rule 803(6) if the foundational requirements outlined above were met. U.S. v. Cameron, supra.

The judge therefore dismissed Cameron’s motion in limine without prejudice . . . which means he can re-raise this issues at trial or at a later point in the proceedings (if that seems appropriate). U.S. v. Cameron, supra.

Guilty Pleas and Venue

As Wikipedia explains, “venue” is the location where a case

is heard. In the United States, the venue is either a county (for cases in state court) or a district or division (for cases in federal court). Venue deals with . . . questions of which court or courts with proper jurisdiction may hear a specific suit. A case can only be brought in a certain venue.

As Wikipedia also notes, in U.S. law venue

is a concept distinct from jurisdiction, which focuses on the authority of a court to hear a particular case. Venue is concerned with the geographical location of the court where a lawsuit is commenced.

As the legal encyclopedia American Jurisprudence explains,

[e]ven though it is afforded significant constitutional protection, a defendant's right to proper venue is a personal defense subject to waiver. An accused's right as to place of trial, arising under statutory or constitutional provisions expressly granting or guaranteeing the right to be tried in the county or district in which the offense was committed, is a personal privilege that may be waived. This is also true in federal court, where an accused can waive the right to be tried in the state and district where the crime was committed.

American Jurisprudence § 463 (2d ed.). In the United States, the Constitution

guarantees an accused the right to be tried where a crime was committed. U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment further directs that criminal defendants have a right to be tried in “`he State and district wherein the crime shall have been committed.’ U.S. Const. amend. VI. These constitutional commands are reflected in [Rule 18 of the Federal Rules of Criminal Procedure], which provides that `[e]xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed.’

This post is about a recent case in which a defendant who pled guilty to federal charges of “mail, wire, and bank fraud and aggravated identity theft” appealed, claiming in part that the federal district court judge who took the plea failed to ensure there was a factual basis demonstrating that venue existed in that federal judicial district. The case is U.S. v. Mobley, ___ F.3d ___, 2010 WL 3340364 (U.S. Court of Appeals for the 6^th Circuit 2010), and this is how it arose:

Beginning in December, 2005, Stephen Mobley, conspired with Ted Bettker, George Nelson, Tony Stonerock, Jason Smith and others to . . . obtain funds under the custody and control of Citibank. . . . The conspiracy . . . involved opening fraudulent business credit card accounts. . . . Mobley [opened the accounts] on-line in his name or under the name of one of his co-conspirators. Sometimes the application . . . would contain a false personal identifier. In other cases, the application would contain the real personal identifiers of co-conspirators . . . and the name of a legitimate business entity but one with which the person in whose name Mobley was submitting the card was not affiliated.

Mobley would approach other individuals . . . and explain that credit card companies write this stuff off and once the account was opened in the individual's name, the[y] could use the credit as they wished . . . but would not need to make any payments. Mobley would offer to open [an] account . . . [if] the individual in whose name the fraudulent Citibank account was opened give Mobley access . . . to a certain percentage of the total credit line, usually 50 percent.

[If the person agreed to participate in the scheme,] Mobley would obtain the[ir] personal identifiers . . . and submit a fraudulent business credit application to Citibank on-line or over the telephone in the[ir] name. Citibank would mail the credit cards for the account in whose name Mobley had opened the account. That individual . . . would deliver some or all of the credit cards to Mobley. . . . [who] would activate the fraudulent cards and sometimes request checks from Citibank so the credit authorized by Citibank could be converted to cash. Mobley and the other individuals would make purchases and write checks against the fraudulent Citibank business credit card accounts Mobley had opened in their names.

U.S. v. Mobley, supra. According to the opinion, in February, 2006, Mobley opened a Citibank account for Bettker and activated the cards after they were delivered to him. Mobley and Bettker then used the cards to make purchases. U.S. v. Mobley, supra. He did essentially the same thing with the other named defendants. U.S. v. Mobley, supra.

And on March 23, 2006,

Mobley opened or caused to be opened three fraudulent Citibank accounts in the name of L.W., a deceased individual and a relation of Stonerock. The fraudulent accounts were opened using L. W.'s name but a fraudulent Social Security number and under the business name of Bridgetech, a legitimate business located in Cincinnati, Ohio but one with which neither Mobley, Stonerock, nor L.W. was affiliated.

U.S. v. Mobley, supra. In November 2009 Mobley pled guilty to the charges noted above and was sentenced to serve 18 months to be served consecutively “to an undischarged 70 month sentence on a prior drug conviction.” U.S. v. Mobley, supra. He then appealed, arguing that his plea was invalid for several reasons, one of which was venue. U.S. v. Mobley, supra.

Mobley’s plea was entered pursuant to Federal Rule of Criminal Procedure 11. U.S. v. Mobley, supra. Rule 11(b) governs a court’s accepting a guilty or nolo contendere plea. Under Rule 11(b)(3), a court accepting a guilty plea must “determine that there is a factual basis for the plea” before accepting it.

Mobley pled guilty before a federal judge who sits in the U.S. District Court for the Southern District of Ohio in Cincinnati. U.S. v. Mobley, supra. His venue argument on appeal was based on his contention that “the district court lacked a factual basis to determine that the acts leading to Count 2 of the information occurred within the Southern District of Ohio.” U.S. v. Mobley, supra.

In analyzing that issue, the U.S. Court of Appeals for the 6^th Circuit first noted that “[b]arring some exception,” the government “`must prosecute an offense in a district where the offense was committed.’” U.S. v. Mobley, supra (quoting Rule 18 of the Federal Rules of Criminal Procedure). It also noted that the Supreme Court has held that the place where a crime was committed “`is determined by the acts of the accused that violate a statute.’” U.S. v. Mobley, supra (quoting Johnston v. U.S., 351 U.S. 215 (1956)). And, finally, the 6th Circuit explained that the Supreme Court has held that when a “`crime consists of distinct parts which have different localities the whole may be tried where any part can be proved to have been done.’” U.S. v. Mobley, supra (quoting U.S. v. Rodriguez-Moreno, 526 U.S. 275 (1999)).

The Sixth Circuit then found that the factual basis requirement of Rule 11(b)(3) does

not apply to consideration of venue. Rule 11(b)(3) explicitly and without exception prohibits district courts from entering judgment in the absence of a factual basis for a guilty plea; in other words, defendants cannot waive this requirement, even if they wish to do so. In contrast, however, defendants can waive venue objections; in at least some cases, moreover, defendants automatically waive venue objections simply by pleading guilty. . . . As the factual basis requirement of Rule 11(b)(3) for a plea cannot be waived, and as objections even as to clearly-defective venue can be waived, then consideration of venue cannot be part of the required 11(b)(3) factual basis determination. Accordingly, it is irrelevant to Mobley's appeal, which is wholly based on 11(b)(3), whether the court had any factual basis to determine the location of any alleged criminal acts.

U.S. v. Mobley, supra. (In a footnote, the court also rejected Mobley’s claim that venue is “jurisdictional” – as noted above, jurisdiction and venue are two distinct concepts.)

Then, in an aside lawyers refer to as dictum, the Court of appeals held that even if Rule 11(b)(3) required a factual basis concerning venue for charges to which a defendant is pleading guilty,

there is ample evidence in the record to meet this requirement. As part of the statement of facts read at the plea hearing, for example, [Ron] Verst [of the U.S. Postal Inspection Service] stated that Mobley, who lived in the Southern District of Ohio, submitted `fraudulent applications . . . under the name Kelley Mobley, using her Social Security number, and using the business name of The Gift Box, a legitimate business located in Columbus, Ohio, but with which Mobley's wife was not affiliated.’ Verst also explained that `various of the . . . acts [described in the statement of facts] occurred in the Southern District of Ohio.’ More importantly, Count 1 of the information, to which Mobley pled guilty and the factual basis of which he has not contested, stated that in furtherance of his scheme to defraud Citibank by filing fraudulent applications, `[Mobley] knowingly and unlawfully transmitted and caused to be transmitted . . . interstate telephone and online communications, all to and from outside the Southern District of Ohio to and from the Southern District of Ohio. . . .’ Even if such a general statement might not be sufficient to prove venue at trial, the quantum of information required to satisfy the Rule 11(b)(3) `factual basis’ requirement for a guilty plea is lower.

U.S. v. Mobley, supra.

Since the Court of Appeals rejected Mobley’s venue argument and the other claims he raised on appeal, it affirmed his conviction. U.S. v. Mobley, supra.

Cell-Phone, Privacy and "Injury to a Disabled Individual"

This post is about a case in which a rather unusual 4^th Amendment issue came up, and was resolved in a manner that somewhat surprised me, at least. The case is State v. Dixon, 2010 WL 3419231 (Texas Court of Appeals 2010) and this is how it arose:

David Herrera, a former employee of the Christus Spohn Health Systems, was shopping at the Corpus Christi Wholesale Mart with his sister when he noticed a black cell phone that resembled an Apple iPod laying on a pair of pants. Thinking it was an Apple iPod, Herrera took the cell phone and gave it to his sister, who put the cell phone in her pants pocket. Herrera and his sister left the store to go home. Neither attempted to locate the owner of the cell phone, nor did they alert a store employee that someone had lost the cell phone.

When he arrived home, Herrera turned on the cell phone and attempted to see what music [was] stored inside. . . . However, the battery . . . was dead, so Herrera removed the SIM card and placed it in another cell phone. . . . [When] Herrera . . . took the cell phone from the store, he intended to deprive the owner of the property, he believed [it] was an Apple iPod that contained music files in its memory, and did not obtain consent from the cell phone's owner to use or search the cell phone. Upon inserting the SIM card into another cell phone, Herrera noticed that several `different videos started popping up, just different videos on the little card.’ [He said] the videos depicted `individuals being beaten up’ while in a hospital setting.

State v. Dixon, supra. In footnotes, the Court of Appeals explains that in one video Herrera saw what he thought was “`a maintenance-type worker or a janitor assaulting what was obviously a handicapped patient’” and in another he could “`hear people laughing in the background and an unknown person was taking . . . shampoo or some sort of a liquid and dumping it on the heads of patients as they were sleeping.’” State v. Dixon, supra. You can read about what was going on in these videos in the news story you can find here. If you search for other stories on the “fight club,” you can see some similar videos (maybe even the same ones).

After he saw the videos, Herrera showed them to his sister and his girlfriend,

Linda Franco. Herrera's sister and Franco wanted to turn the cell phone in to the local news station `because they wanted something to be done about it.’ Herrera tried to take the cell phone to the Channel 10 News Station, but they did not answer the door. . . . Herrera then took the cell phone to David Frazier at the Channel 6 News Station. Frazier kept the cell phone for `about two weeks,’ but asserted he could not do anything with [it] `because the phone wasn't charged and they couldn't see the videos that were in there.’ Subsequently, Franco, an emergency room technician at the Christus Spohn Memorial Hospital, informed Officer Shipley, the security guard at the hospital, about the cell phone. While at the hospital several days later, Franco showed Shipley the contents of the cell phone, including the three videos.

State v. Dixon, supra. Shipley later testified that once he saw the videos, he “determined a crime had been committed and confiscated the cell phone to preserve it as evidence.” State v. Dixon, supra. After police viewed “the contents of the cell phone,” they “charged Dixon with four counts of injury to a disabled individual” in violation of Texas Penal Code § 22.04. State v. Dixon, supra.

Dixon then moved to suppress “the evidence obtained from the cell phone as a product of an unlawful search.” State v. Dixon, supra. The trial court held a hearing on Dixon’s motion and granted it. State v. Dixon, supra. The trial judge found that “`Herrera, a private individual, illegally obtained evidence by the theft of Dixon's cell phone’” and held that Article 38.23 of the Texas Code of Criminal Procedure “mandated the exclusion of any evidence obtained from the cell phone at Dixon's trial.” State v. Dixon, supra. The prosecution appealed. State v. Dixon, supra.

Article 38.23 of the Texas Code of Criminal Procedure says that

[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

According to the Court of Appeals, this statute codifies the exclusionary rule. State v. Dixon, supra. So while the judge didn’t explicitly mention either the 4^th Amendment or the Texas State Constitution’s analog of the 4^th Amendment (all U.S. states have their own constitutions and most, probably all, have a version of the 4^th Amendment), under this rule the judge was suppressing the evidence because it violated the 4^th Amendment and/or Texas Constitution Article 1 § 9 (“The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches. . . “).

On appeal, the prosecution argued that the trial court erred because (i) Dixon hadn’t shown that he was the owner of the cell phone that contained the videos and/or (ii) even if Dixon had owned the cell phone, he abandoned it and thereby lost any Constitutional expectation of privacy in its contents. State v. Dixon, supra.

As to the first issue, the Court of Appeals pointed out that evidence in the records showed that Dixon was, in fact, the owner of the cell phone:

[T]he trial court, in its findings of fact, explicitly stated that, `[i]t is without controversy that the cell phone belonged to Timothy Dixon even if the cell phone account was in the name of his common law mother-in-law.’ Dixon clearly stated in his motion to suppress that the cell phone was his and asserted that the phone had been the subject of an unlawful search and seizure. Moreover, Dixon directs us to Herrera's testimony, wherein Herrera, on cross-examination, admitted several times that the cell phone belonged to Dixon.

State v. Dixon, supra. The Court of Appeals also noted that in his motion to suppress,

Dixon argued that the evidence obtained from the cell phone should be excluded from the trial in this matter because Officer Shipley and Herrera searched the phone without Dixon's consent or a warrant . . . which suggests Dixon harbored an expectation that the contents of his cell phone would be free from searches conducted by governmental officials or others. . . . We believe Dixon's expectation of privacy in the cell phone is reasonable given the circumstances of this case.

State v. Dixon, supra. The Court of Appeals then took up the issue of abandonment. As I’ve noted in earlier posts, abandonment is basically an exception to the 4^th Amendment requirement that officers must have a warrant in order to lawfully search a place or a thing (or seize it). As the Court of Appeals noted, in determining whether someone abandoned their property the issue is whether he “voluntarily discarded, left behind, or otherwise relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” State v. Dixon, supra (quoting McDuff v. State, 939 S.W.2d 607 (Texas Court of Criminal Appeals 1997)).

In analyzing this issue, the court noted that in this case, “we are presented with a set of facts involving the search of the cell phone without the owner's consent and without a clear expression of abandonment that was preceded by an unlawful act-theft-of a third person, Herrera.” State v. Dixon, supra. It explained that in its findings of fact, the

Trial court stated that, `[t]here was no evidence of abandonment presented during the Pretrial Hearing. . . . Herrera testified that the cell phone belonged to Dixon and he took the cell phone from the store with the intent to deprive Dixon of its use. Thus, Herrera's actions constituted an unlawful theft of Dixon's cell phone. . . . Herrera testified that he did not intend to give the cell phone to police when he took it from the department store. . . . Essentially, the searches of Dixon's cell phone by Herrera and police flowed from Herrera's unlawful theft of the cell phone from the department store.

State v. Dixon, supra. This is where, IMHO, it gets a little weird:

[T]he incriminating videos were only visible when conducting an intrusive search of the cell phone, and there is no testimony that Herrera, acting in the shoes of law enforcement, had probable cause to conduct a warrantless search of the cell phone at the time the phone was found in the department store. . . . Because `a private person can do what a police officer standing in his shoes can legitimately do but cannot do what a police officer cannot do,’ we hold that Herrera's unlawful theft of Dixon's cell phone would have constituted misconduct if Herrera had been a police officer and, therefore, precludes a finding that Dixon abandoned the cell phone.

State v. Dixon, supra. First of all, I don’t think Herrera was “acting in the shoes of law enforcement” when he originally searched the cell phone – he was looking for music, for himself, presumably. Second, as I’ve noted in earlier posts, if a private person conducts a search that would violate the 4^th Amendment if a law enforcement officer conducted it, you don’t have to suppress the evidence because the 4^th Amendment exclusionary rule (and I assume the Texas rule is the same) doesn’t apply to private citizens . . . only to law enforcement officers. Maybe I’m missing something, but this part of the opinion doesn’t really work for me.

The Court of Appeals then holds that “Herrera's unlawful theft and subsequent search of the phone required that the evidence obtained from the cell phone be suppressed in” accordance with the Texas Rule of Criminal Procedure. State v. Dixon, supra.

Legal Ethics and Metadata

As Wikipedia explains, every U.S. state has an ethical code that binds lawyers to certain standards of professional conduct.

As Wikipedia also explains, there are currently two different, though similar codes, in use in this country: the Model Rules of Professional Conduct and the Model Code of Professional Responsibility. You can read a bit about them on Wikipedia, which also notes that California and Maine don’t follow either – they have their own, respective, sets of ethical rules. This post, as the title indicates, deals with lawyer ethics and metadata.

According to one article, bar authorities have issued “14 ethics opinions” on the ethical questions lawyers confront in dealing with metadata. Donald R. Lundberg, A Five-Year Retrospective, Res Gestae 15 (July/August 2010). I’m not going to attempt to analyze 14 ethics opinions in a blog post . . . I couldn’t do it and you don’t want me to.

But there are some interesting issues here, so I thought I’d do a post on a recent opinion from the North Carolina State Bar: Review and Use of Metadata, 2009 NC Eth. Op. 1 (2010).

This was not an opinion that issued at the request of a lawyer. Instead, the State Bar association issued it sua sponte, i.e., on its own. The State Bar authorities first explained why this thought this step was warranted:

[L]awyers routinely send emails and electronic documents . . . presentations to a lawyer for another party (or to the party if not represented by counsel). The email and the electronic documents contain metadata or embedded information about the document describing the document's history, tracking and management such as the date and time [it] was created, the computer on which [it] was created, the last date and time [it] was saved, `redlined’ changes identifying what was changed or deleted in the document, and comments included . . . during the editing process. Pennsylvania Bar Ass'n. Comm. on Legal Ethics and Professional Responsibility . . . notes that . . . metadata . . . may contain `privileged and/or confidential information, . . . which may provide information about . . . legal issues, legal theories, and other information that was not intended to be disclosed to opposing counsel.’ . . . The sender . . . may be unaware there is metadata embedded in the document or mistakenly believe the metadata was deleted from the document prior to transmission.

Review and Use of Metadata, supra. The opinion addresses two questions, the first of which is “[w]hat is the ethical duty of a lawyer who sends an electronic communication to prevent the disclosure of a client's confidential information found in metadata?” The State Bar began its analysis of this issue by noting that

Rule 1.6(a) of the Rules of Professional Conduct prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or disclosure is permitted by one of the exceptions to the duty of confidentiality set forth in paragraph (b) of the rule. As noted in comment [20] to the rule, `[w]hen transmitting a communication that includes information acquired during the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.’

Review and Use of Metadata, supra. In an earlier opinion, the State Bar had found that this obligation extends to the use of electronic communications and documents but did not require “`that a lawyer use only infallibly secure methods of communication,’” only that a lawyer “`take steps to minimize the risks that confidential information” might be disclosed in electronic communications and data. Review and Use of Metadata, supra.

The State Bar then noted that lawyers have “several options” they can use to reduce the risk of inadvertently revealing confidential information:

Lawyers should exercise care in using software features that track changes, record notes, allow `fast saves,’ or save different versions, as these features increase the amount of metadata in a document. Metadata `scrubber’ applications remove embedded information from an electronic document and may be used to remove metadata before sending an electronic document to opposing counsel. Finally, lawyers may opt to use an electronic document type that does not contain as much metadata, such as the portable document format (PDF), or may opt to use a hard copy or fax. . . .

Review and Use of Metadata, supra. The State Bar’s final comments on this issue were that “[w]hat is reasonable depends on the circumstances,” including “the sensitivity of the . . . information that may be disclosed, the potential adverse consequences from disclosure, any special instructions or expectations of a client, and the steps the lawyer takes to prevent the disclosure of metadata.” Review and Use of Metadata, supra.

The second question the opinion addresses was “[m]ay a lawyer who receives an electronic communication from another party or the party's lawyer search for and use confidential information embedded in the metadata of the communication without the consent of the other party or lawyer?” Review and Use of Metadata, supra. The State Bar first explained that such conduct is forbidden under Rule 1.6 of the North Carolina Rules of Professional Conduct:

No, a lawyer may not search for confidential information embedded in metadata of an electronic communication from another party or a lawyer for another party. By actively searching for such information, a lawyer interferes with the client-lawyer relationship of another lawyer and undermines the confidentiality that is the bedrock of the relationship. . . . [I]f a lawyer unintentionally views confidential information within metadata, the lawyer must notify the sender and may not subsequently use the information revealed without the consent of the other lawyer or party.

Review and Use of Metadata, supra. It noted that the state bars of Alabama, Arizona, Florida, Maine and New York have all reached this same conclusion. Review and Use of Metadata, supra.

(According to a law review article, the New Hampshire state bar has also taken this view. Andrew M. Perlman, The Legal Ethics of Metadata Mining, 43 Akron Law Review 786 (2010).) The State Bar pointed out, however, that in Formal Opinion 06-442 (2006), the American Bar Association Standing Committee on Ethics and Professional Responsibility took the position that applicable ethical rules “do not prohibit a lawyer from reviewing and using metadata, a position also adopted by the state bars of Colorado, Maryland and Pennsylvania. Review and Use of Metadata, supra. (According to the law review article cited above, Vermont also takes this position. The Legal Ethics of Metadata Mining, supra.)

The North Carolina State Bar then reiterated its position that a lawyer

may not ethically search for confidential information embedded within an electronic communication from another party or the lawyer for another party. To do so would undermine the protection afforded to confidential information by Rule 1.6 and would interfere with the client-lawyer relationship of another lawyer in violation of Rule 8.4(d), which prohibits conduct that is `prejudicial to the administration of justice.’

Review and Use of Metadata, supra. The State Bar recognized that a lawyer might “unintentionally find confidential information upon viewing the contents of an electronic communication.” Review and Use of Metadata, supra. It explained that if this happens, the lawyer “must notify the sender and may not subsequently use the information revealed without the consent of the other lawyer or party.” Review and Use of Metadata, supra. It explained that Rule 4.4(b) of the North Carolina Rules of Professional Conduct

requires a lawyer who receives a writing relating to the representation of a client that the lawyer knows, or reasonably should know, was inadvertently sent, to promptly notify the sender. Receiving confidential information embedded in the metadata of an electronic communication is analogous to receiving . . . a faxed pleading that inadvertently includes a page of notes from opposing counsel. Although the receiving lawyer did not seek out the confidential information, the receiving lawyer . . . has a duty to `promptly notify the sender’ under Rule 4.4(b) if the receiving lawyer `knows or reasonably should know that the writing was inadvertently sent.’ Although the technology involved is different, the Ethics Committee believes that a lawyer who can recognize confidential information inadvertently included in a fax can also recognize confidential information inadvertently included in an electronic document.

Review and Use of Metadata, supra.

To put this opinion in context, perhaps, the article I cited earlier says there are

14 ethics opinions on the topic out there. They all agree that the sending lawyer has a duty to scrub documents for metadata that might reveal client confidences. They are all over the map on whether it is improper to go looking for metadata in digital communications from opposing counsel.

A Five-Year Retrospective, supra. The law review article cited above says that the District of Columbia, Pennsylvania and West Virginia bar associations have taken the position that metadata mining “should be permissible, at least in some circumstances”, so they’re in the middle. The Legal Ethics of Metadata Mining, supra.

Personally, I tend to agree with the author of the first article cited earlier: He said that in an article he published three years ago he argued that metadata mining was unethical but is now rethinking his position:

I find it to be personally offensive. However, this is one of those fascinating topics where legal ethics is trailing technology. With the risks presented by metadata more widely known, there will be increasingly little sympathy for the lawyer who lets client confidences out of the bag through metadata and decreasing condemnation of lawyers who look for it.

A Five-Year Retrospective, supra.