Defamation, the Communications Decency Act and the “Blog”

This post deals with a recent ruling in a civil suit that has so far produced 18 district court opinions that are available on Westlaw (and probably also on Lexis). The case is Jan E. Kruska v. Perverted Justice Foundation Incorporated.org, and the opinion we’re going to examine issued on April 5 of this year. Kruska v. Perverted Justice Foundation, Inc., 2011 WL 1260224 (U.S. District Court for the District of Arizona 2011) (hereinafter, Kruska v. PJFI”).

This opinion doesn’t even attempt to summarize how the case arose or where it currently stands, so I’m going to use the background provided by the Citizen Media Law Project, which I assume is accurate:

Jan Kruska sued several anti-pedophile organizations, including Perverted Justice Foundation, Inc. (`PJFI’), and individuals associated with those organizations, as well as domain registrar GoDaddy.com and . . . MySpace.com, after the organizations accused Kruska of being a predator, a pedophile, and pro-pedophile on various websites. . . . Kruska sued for defamation [and other civil causes of action] in Arizona federal court.

In August 2007, self-described journalist Kruska began to receive what she described as `venomous’ emails after she criticized the overbreadth of anti-pedophile laws. Soon after, the Absolute Zero United blog and PJFI’s Wikisposure and Corporate Sex Offender websites posted accusations that Kruska was a convicted child molester and a pedophile, according to the complaint. . . . Some of the websites also allegedly posted personal information about Kruska, including her address, and photographs of Kruska that she says are copyrighted. . . .

Kruska filed her complaint in January 2008. It sought damages and a preliminary injunction, barring the defendants from `disseminating claims that [she] is a “Predator”, “Child Molester”, “Child Abuser”, “Pedophile”, and “Pro-Pedophile” by postings on the internet, mass mailings, e-mails to friends, relatives, employers, business associates, among others; or otherwise by any other means making such suggestions.’

Kruska v. Perverted Justice Foundation. If you want more details about this litigation, check out the Citizen Media Law Project entry on the case.

In the opinion we’re concerned with, the federal judge who has this case is ruling on one of the defendants’ motion for summary judgment. As Wikipedia explains, in U.S. law,

summary judgment can be awarded by the court prior to trial, effectively holding that no trial will be necessary. Issuance of summary judgment can be based only upon the court's finding that: (1) there are no issues of `material’ fact requiring a trial for their resolution, and (2) in applying the law to the undisputed facts, one party is clearly entitled to judgment.

The summary judgment motion we’re concerned with was filed by defendant Christopher Brocious who, in 2006, “registered and provided design services for a blog called absolutezerounited.blogspot.com (the `Blog’), whose contributors billed themselves as `[a] community of individuals pledged to fight paedophiles on the web.’” Kruska v. PJFI, supra.

[Kruska] contends that [Brocious] also acted as contributor, owner, copyright holder, and moderator of the Blog. [Brocious] asserts that he never acted as owner, copyright holder, or moderator of the Blog, but acknowledges that he has contributed to the Blog.

Kruska v. PJFI, supra. In her complaint, Kruska alleged that Brocious “was responsible for comments made online, including on the Blog, that constituted” defamation, among other things. Kruska v. PJFI, supra. (The court describes the defamation claim as Kruska’s “last remaining cause of action” against Brocious, the others apparently having been disposed of in rulings on earlier motions.) Kruska’s defamation claim “pertained” to whether Brocious was

responsible for the allegedly defamatory statement that [she] `starved a child.’ [Brocious] contends

both that he made no such statement and that he is immune to [Kruska’s] claims under the Communications Decency Act, § 230. [Kruska] contests [his] assertions, but acknowledges that she does not know who stated that `Plaintiff starved a child’ -- which she alleges appeared in the comments section of the Blog -- and does not produce any evidence that such a statement was ever made.

[Kruska] alleges that `[o]nly via discovery can we ascertain the true identity of the individual who made the false allegation that `Plaintiff starved a child’ as whoever made this statement did so under a screen name’ in the comments section of the Blog. [She] further asserts that, regardless of who made the alleged statement, [Brocious] as the alleged owner and moderator of the Blog `would have had to have viewed the comment and ma[d]e the conscious decision to allow the comment to be published.’

Kruska v. PJFI, supra.

The district court judge began his ruling on Brocious’ motion for summary judgment and Kruska’s arguments in opposition by noting the standard quoted above, i.e., summary judgment is only appropriate if there are no genuine issues of material fact and one party is clearly entitled to judgment based on the undisputed facts. Kruska v. PJFI, supra. He also noted that under Arizona law (which applied, since Kruska’s defamation claim was a state law claim), “`[s]omeone who publishes a . . . defamatory communication about a private person is subject to liability if that person "`”(a) knows the statement is false and it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.”’” Kruska v. PJFI, supra (quoting Dube v. Likins, 216 Ariz. 406, 167 P.3d 93 (Arizona Court of Appeals 2007)). (If you’re wondering how Kruska could bring an Arizona state law defamation claim in federal court, check out this entry on diversity jurisdiction.)

The judge found Kruska’s defamation claim could not “survive” because she failed make any showing sufficient to establish an essential element of her claim, i.e., that “anyone ever asserted that [she] `starved a child.’” Kruska v. PJFI, supra. He noted that even if the alleged statement was made,

[Kruska’s] claim fails. First, [she] has provided no evidence that [Brocious] stated that [she] starved a child, and acknowledges she is unsure who might have made that comment. Second, [Kruska] argues [Brocious] is liable for defamation because as the alleged owner and moderator of the Blog, [he] would have had to approve the comment by taking affirmative steps to publish it. However, [Kruska] again offers no evidence that publishing the alleged statement on the Blog would require any affirmative steps by a moderator, other than a conclusory statement that the statement `had to be viewed an[d] approved before being published.’

Third, although [Kruska] demonstrates [Brocious] was a contributor to and perhaps the driving force behind the Blog, [she] offers no evidence that [he] ever saw or approved the alleged comment that [she] `starved a child.’ [Brocious] cannot “`(a) know[ ] the statement is false and it defames the other, (b) act[ ] in reckless disregard of these matters, or (c) act[ ] negligently in failing to ascertain them”’ when no evidence indicates that [he] knew about the statement in the first place. . . . For all of these reasons, and because a main objective of summary judgment is `to isolate and dispose of factually unsupported claims such as [Kruska’s] the Court will grant summary judgment on [her] defamation claim. [citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)].

Kruska v. PJFI, supra.

Brocious’ motion for summary judgment also argued that Kruska’s claim against him was barred by 47 U.S. Code § 230, which is part of the Communications Decency Act (CDA). Kruska v. PJFI, supra. Section 230(c)(1) of Title 47 of the U.S. Code states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” As the Kruska judge noted, “Congress, by enacting the CDA, `granted most Internet services immunity from liability for publishing . . . defamatory material so long as the information was provided by another party.’” Kruska v. PJFI, supra (quoting Carafano v. Metrosplash.com, 339 F.3d 1119 (U.S. Court of Appeals for the 9^th Circuit 2003)).

The judge noted that “[k]ey in determining whether § 230 immunity applies is the extent of the interactive computer service provider's participation in the content at issue.” Kruska v. PJFI, supra. He explained that the 9^th Circuit Court of Appeals held “that an online newsletter was an `interactive computer service’ but that its administrator was not an `information content provide’” of a third-party's allegedly defamatory e-mail message even though the administrator selected, lightly edited, and published its contents.” Kruska v. PJFI, supra (citing Batzel v. Smith, 333 F.3d 1018 (9^th Cir. 2003)).

Brocious argued that he was immune from suit under § 230 because “`[Kruska] plainly cannot show [he] was involved in any of the activities that might otherwise give rise to liability for defamation.’” Kruska v. PJFI, supra. Kruska argued that Brocious was not immune “`because § 230 not immunize the actual creator of the content, whether he is a blogger, commenter, or anything else.’” Kruska v. PJFI, supra. The judge agreed with Brocious:

The Court finds [Brocious] is immune from suit under § 230 because at most, [Kruska] sets forth the possibility that [he], as the alleged publisher of the Blog, `viewed an[d] approved [the comment] before [it was] published. Such alleged passive participation would be akin to the alleged conduct in Batzel, where the Ninth Circuit held that § 230 immunity applied to a website administrator who selected, edited, and published the contents of an allegedly defamatory comment. . . .

Even if [Kruska’s] assertion that [Brocious] took active steps to publish the alleged comment on the Blog was true, such steps are not the type of material contribution to the alleged misconduct that the Ninth Circuit found in Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (2009). Therefore, the Court finds that, as an additional ground for summary judgment on [Kruska’s] defamation claim, [Brocious] is immune from suit under § 230.

Kruska v. PJFI, supra.

The judge therefore granted summary judgment for Brocious, which ends Kruska’s defamation suit against him. Kruska v. PJFI, supra.

And no, I have no idea what, if any, claims are still pending against other defendants in the original suit. You’d have to check the Citizen Media Law Project entry to get an idea of where the case stands. It has updates and copies of many of the orders entered in the case.

Sentencing, PIN Numbers and Impossible Loss

As I’ve explained in earlier posts, sentencing in the federal system is governed by the Federal Sentencing Guidelines which, which, as Wikipedia notes, are “rules that set out a uniform sentencing policy for individuals and organizations convicted of felonies and serious misdemeanors in the United States federal courts system. And as Wikipedia explains, sentencing under the Guidelines is based primarily on two factors: (i) the conduct associated with the offense and (ii) the defendant's criminal history (the criminal history category).

This post is about a recent decision from the U.S. Court of Appeals for the 2d Circuit in which the court addressed the defendant’s challenging “the procedural and substantive reasonableness” of the sentence imposed on him after he was convicted of conspiracy to commit wire fraud and damage a protected computer for personal gain in violation of 18 U.S. Code §§ 371, 1343, 1030(a)(2)(C) and (a)(5)(A) (1 count); money laundering in violation of 18 U.S. Code § 1956(a)(2)(B)(i) (1 count); and access device fraud in violation of 18 U.S. Code § 1029(2)-(3), (5) (3 counts). U.S. v. Volynskiy, 2011 WL 1486158 (2d Cir. 2011).

This is how the prosecution described the conduct that led to these charges against Aleksey Volynskiy:

From 2006 through 2007, Volynskiy, [Alexander] Bobnev, and other co-conspirators participated in a scheme to steal funds from bank and brokerage accounts by hacking into those accounts . . . (using personal financial information obtained through computer viruses), and then launder[ing] the stolen proceeds. . . . Bobnev and co-conspirators in Russia used . . . `Trojan Horses’ to hack into the personal computers of multiple victims in the United States. . . . After the Trojan Horses captured the victims' account information, Bobnev and other co-conspirators used the information to access victims' bank and brokerage accounts, and thereafter made unauthorized sales of securities and unauthorized wire transfers out of these accounts.

Volynskiy, along with co-conspirators in the United States, set up `drop’ accounts to receive the funds stolen from their victims' bank and brokerage accounts. They sent a portion of the stolen funds from various `drop’ accounts to co-conspirators in Russia through money-remitting services (such as Western Union), and retained a portion . . . for themselves. . . .

During the same time period that Volynskiy and Bobnev were carrying out [this] scheme, . . . Volynskiy also stole funds from bank accounts by withdrawing money from those accounts at ATMs, using stolen credit card numbers.

Brief for the United States of America, U.S. v. Volynskiy, 2011 WL 365229 (2d Cir. 2011).

Volynskiy was caught after one of his co-conspirators became a cooperating witness for the FBI. Brief for the United States of America, supra. On November 25, 2008, he was indicted on the above charges, and on August 4, 2009, he pled guilty to all the charges “without a plea agreement.” Brief for the United States of America, supra. On April 6, 2010, the district judge who had the case sentenced Volynskiy to “concurrent terms of 37 months' imprisonment on each count, to be followed by concurrent terms of three years' supervised release”. Brief for the United States of America, supra. As I noted earlier, Volynskiy appealed the sentence. U.S. v. Volynskiy, supra.

Volynskiy’s first argument was that the judge “miscalculated the total loss amount applicable to his Guidelines” range of possible penalties “by $90,000 – based on $500 for each of 180 credit card numbers Volynskiy provided to the” cooperating witness. U.S. v. Volynskiy, supra. At the sentencing hearing, the defense attorney said “he believed the loss amount from the 180 credit card numbers given to the cooperating witness was zero”, basing this contention “the fact that the information given was not sufficient to create the credit cards in that no PIN numbers were provided.” Brief for Defendant, U.S. v. Volynskiy, 2011 WL 1486158. The judge, however, decided to include the $90,000 “under an `intended loss’ theory.” Brief for Defendant, supra.

The issue arose under U.S. Sentencing Guideline § 2B1.1. Application note 3(A)(i) for this guideline states that “loss” is “the greater of actual loss or intended loss” and defines “actual loss” as “the reasonably foreseeable pecuniary harm that resulted from the offense”. It defines “reasonably foreseeable pecuniary harm” as “pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.”

In Volynskiy’s appeal, his attorney argued that he could not have reasonably foreseen

any pecuniary harm by giving the cooperating witness credit card numbers without associated PIN numbers and encoded information necessary to create a credit card. He could not have reasonably foreseen any potential loss resulting from that act and thus did not `intend’ a loss of $90,000. . . . Volynskiy was never shown to have made any profit from the transfer of the credit card numbers nor to have any knowledge that they would be used without authorization.

Brief for Defendant, supra.

The Court of Appeals was not persuaded: It explained that even “if Volynskiy could not use the counterfeit cards without PIN numbers, such fraudulent use was clearly his ultimate intent. Indeed, Volynskiy stated that he understood that co-conspirators could obtain access numbers.” U.S. v. Volynskiy, supra. In arriving at this result, the Court of Appeals at least implicitly approved the district court judge’s use of “an `intended loss’ theory.” U.S. v. Volynskiy, supra.

As noted above, Application note 3(A)(i) for § 2B1.1 of the Sentencing Guidelines defines “actual loss.” Application note 3(A)(ii) defines “intended loss” as “the pecuniary harm that was intended to result from the offense” and includes “intended pecuniary harm that would have been impossible or unlikely to occur”. The court clearly agreed with the prosecution’s argument on this issue, which was that there was

no question that Volynskiy provided credit card numbers and other information to a CW [cooperating witness] for the express purpose of creating fraudulent credit cards that could be used to obtain money. Each of those credit card numbers was properly counted as part of the intended loss caused by [his] conduct. Whether he could have completed the scheme on his own or needed the CW's help was irrelevant because Volynskiy's fraudulent intent was clear.

Brief for the United States of America, supra.

That brings us to Volynskiy’s argument as to the “substantive unreasonableness” of the sentence imposed on him. He claimed the sentence was “substantively unreasonable because it fails adequately to account for his youth, rehabilitation, attempt to cooperate, and eventual deportation” and because “the district court [judge] placed undue weight on the need for general deterrence.” Brief for Defendant, supra. In Volynskiy’s appellate brief, his attorney explained that he was a 23-year-old man with

no prior criminal history. He made only $8,000 for his part in the scheme and for that he had ruined his life. [Volynskiy] had tried to assist the government but simply did not have the type of information in which the FBI was interested. Furthermore, . . . [his] role in the offense . . . was clearly less than that of the other participants. He had no skills that would have allowed him to engage in computer hacking and had no involvement in that part of the scheme. He merely acted as a bridge between codefendant Bobnev and the cooperating witness.

Brief for Defendant, supra. Earlier, the defense brief explains that Volynskiy was

born in the former Soviet Union in the former city of Gorky and came to the United States in March of 2001. He . . . was not aware of being a citizen of any country. He came to this country when he was 14 or 15 years old and attended La Guardia High School in New York for 3 years.

Brief for Defendant, supra.

Judge Denny Chin, who was a federal district court judge in the Southern District of New York until April, 2010, when he became a judge on the Second Circuit Court of Appeals, sentenced Volynskiy. (Chin was, of course, not on the three-judge panel of the Second Circuit that decided this appeal.) At the sentencing hearing, Judge Chin explained that in imposing the sentence he considered a

number of mitigating factors, such as Volynskiy's young age, the absence of any criminal history, the support of his family and friends, and his efforts to `find the right path’ since his arrest. [He] noted that while he considered Volynskiy's immigration status, `it's a common collateral consequence that we see in this courthouse.’ Judge Chin also explained that he considered the seriousness of the crimes, and that `while general deterrence might be a slippery concept, it's very much a part of the calculus’; in particular, he noted that the success of computer hackers in Russia was due in part to assistance from people in the United States like Volynskiy, who helped carry out the crimes.

Brief for the United States of America, supra.

The Court of Appeals judges rather brusquely rejected Volynskiy’s substantive unreasonableness argument:

In imposing a sentence at the low end of the Guidelines range, the experienced district judge expressly considered the factors cited by Volynskiy. He nevertheless declined to impose a non-Guidelines sentence because of the serious nature of Volynskiy's crimes, his important role and long involvement in the scheme, and the need for general deterrence of international hackers. On this record, the district court acted well within its `considerable sentencing discretion’ in imposing the challenged term of incarceration.

U.S. v. Volynskiy, supra. The court therefore upheld Volynskiy’s sentence.

If you’d like to read more about the scam and/or read the indictments, check out the news story you can find here.

Testimony Re Absence of Text Messages Properly Admitted

This post examines a recent decision from the Appellate Court of Connecticut that raised an interesting evidentiary issue. As Wikipedia explains, the law of evidence “governs the use of testimony (e.g., oral or written statements, such as an affidavit) and exhibits (e.g., physical objects) or other documentary material which is admissible (i.e., allowed to be considered by the trier or fact, such as a jury) in a judicial . . . proceeding.”

As I’ve noted in earlier posts, the federal system and every U.S. state has its own rules of evidence, which generally tend to be pretty consistent. You can find the Federal Rules of Evidence here, and this site gives you access to the rules of evidence that apply in each U.S. state.

As I noted, we’re going to examine a Connecticut case: State v. Vega, 127 Conn. App. 20, __ A.3d __, 2011 WL 1367752 (Appellate Court of Connecticut 2011). This is what led to Edward D. Vega’s being charged with, and convicted of, robbery in the first degree, conspiracy to commit robbery in the first degree and assault in the first degree, all in violation of the Connecticut Criminal Code:

In the autumn of 2007, Daryl Wells was . . . a freshman at Trinity College in Hartford. . . . [He] met . . . Elysha Padilla, and the two became close friends. On April 26, 2008, Wells and Padilla had a `romantic encounter”’ in Padilla's dormitory room. After this encounter, . . . she ended all communication with him.

On May 5, 2008, Wells was in his dormitory room when an unknown woman . . . came to his door and gave him a letter she claimed was from Padilla. The letter indicated Padilla was distressed, prompting Wells to decide . . . to go see her. The woman [said] Padilla was staying in her apartment and offered to take him there. Wells . . . elected to follow . . . in his own car. The two went outside, and [she] entered a . . . Toyota Camry . . . driven by an unknown male. Wells followed the Camry to the Trinity Apartment Complex . . . , which was about one and one-half miles away from the Trinity College campus.

At approximately 9:40 p.m., Wells exited his car and followed the woman along the side of the apartment building. [She said] she forgot her key and would have to get it from her boyfriend. Wells followed [her] o the parking lot and . . . noticed two men coming toward them, one of whom was [Vega]. As [Vega] and his companion approached Wells, the woman kept walking past them. Wells greeted the men, but they did not respond. [Vega] pulled a gun from under his shirt and told Wells to get on his knees, which he did. The second man then circled around Wells.

Wells pleaded with the[m] to leave him alone and [said] . . . he did not have any money. The men . . . began attacking him. . . . [Vega]. . . . pistol-whipped Wells . . . [A]t one point, Wells heard a loud bang and felt blood gushing from his forehead. When the men were done . . ., [Vega] reached into Wells’ pant's pocket and took his wallet.

State v. Vega, supra. Residents of the apartment complex called police; Wells was taken to the hospital, and told that a bullet grazed his temple and “that he had a broken finger and bruises all over his body.” State v. Vega, supra.

Detective Jacobson investigated the attack. After he learned that a note allegedly from Padilla was used to lure Wells to the apartment complex, he obtained her phone and text message records, which revealed

substantial communication between her and [Vega]. Jacobson noticed many calls between Padilla and [Vega] on . . . the day of the attack, and that Padilla received four text messages from [Vega] and sent one to him at about the time of the attack. [He] also learned [Vega] drove a . . . Toyota Camry.

State v. Vega, supra.

“On the basis of this information,” Jacobson created a photo array that “included a photograph of” Vega and presented it to Wells, who identified Vega as one of the men who attacked him and “the individual who fired the gun at him.” State v. Vega, supra. Vega was arrested, and “voluntarily surrendered his cellular telephone.” State v. Vega, supra. He was later charged with the crimes I noted above, pled not guilty, went to trial and was convicted by a jury. State v. Vega, supra.

At trial, Wells “positively identified” Vega as the “man who had pistol-whipped and shot him.” State v. Vega, supra. The prosecution also presented testimony from a

Sprint/Nextel records custodian, [who] testified that on the night and at the approximate time of the attack, [Vega’s] telephone was used to place and receive calls and text messages from Padilla's telephone and that the cell site that received the transmissions made at the time of the attack was located at 2731 South Main Street in West Hartford. State inspector Kumnick testified that the cell tower accessed by [Vega’s] telephone at the time of the attack was only 1.02 miles from the apartment complex. . . .

New Britain police Sergeant Chute testified concerning . . . his forensic analysis of [Vega’s] telephone. Chute testified that [the] telephone contained text messages dated from September to October, 2007, and two messages from January, 2008. He noted . . . that there were no text messages on the telephone that were dated between January and June, 2008.

Chute testified . . . that there were only two reasons why there would not be text messages dated between January and July, 2008, on [Vega’s] telephone. One was that they deliberately were deleted; the other reason was that no messages were received or sent. When asked on cross-examination whether text messages can be deleted because too many were sent or received by the telephone, Chute [said] he was not aware that could happen but `[a]nything is possible. . . .’

State v. Vega, supra.

Vega was convicted, sentenced “to an effective term of fourteen years incarceration, execution suspended after seven years, and three years of probation.” State v. Vega, supra. He appealed, arguing, in part, that the trial judge erred in letting Chute give “his expert opinion concerning the calls and text messages received by and sent from” Vega’s cell phone. State v. Vega, supra.

Vega’s argued that (i) evidence regarding the missing text messages was irrelevant because it did “not make it more probable” that he intentionally deleted the messages sent from and received by his phone on the night of the attack and (ii) even if the evidence had some relevance, Chute's testimony “created a side issue that confused and unduly distracted the jury from the ultimate issue.” State v. Vega, supra. The Appellate Court rejected both arguments, beginning with the claim that the evidence was not relevant:

Chute's testimony concerning the absence of text messages . . . had the logical tendency to aid the jury in determining the issue of guilt. . . . `The state of mind which is characterized as . . . consciousness of guilt is strong evidence that the person is indeed guilty. . . .’ State v. Edwin M., 124 Conn. App. 707, 6 A.3d 124 (2010).

Although Chute's testimony encompassed a larger time frame than the days surrounding the attack on Wells, it still aided the jury in determining whether [Vega] displayed a consciousness of guilt. If the incriminating text messages were deliberately erased from [his] telephone, then evidence supporting such a determination renders it more probable that [he] was the individual who attacked Wells.

State v. Vega, supra. (In denying Vega’s objection to Chute’s testimony, the trial judge analogized deleting the text messages to “ripping pages out of a journal”, noting that if someone had a journal in which they recorded their daily activities, were accused of a crime committed at a certain time and the pages of the journal were found to be missing, that would be evidence of consciousness of guilt. State v. Vega, supra.)

The Appellate Court also rejected Vega’ argument that Chute’s testimony created a “side issue” that distracted the jury and prejudiced him. State v. Vega, supra. It held that the testimony “contained nothing that would unduly arouse the jury's emotions,” did not “create a side issue” and pertained to Vega’ “consciousness of guilt and did not distract the jury from the ultimate issue of determining his guilt.” State v. Vega, supra.

Finally, Vega claimed Chute’s testimony was improper “because he gave opinions that were purely speculative and, therefore, created a specious inference of a consciousness of guilt.” State v. Vega, supra. The Appellate Court again disagreed:

[Vega] challenges Chute's opinions that the text messages . . . were missing . . . due to inactivity or because they were deliberately deleted and that text messages could only be deleted by . . . deliberately erasing them. . . . [Vega claims] Chute's assumption that it was not reasonably possible that [his] telephone would automatically delete older text messages when it reached its storage capacity was patently false. He also claims Chute either lacked a sufficient understanding of cellular telephone functions or neglected to take them into consideration when stating his opinions as to why there were no text messages on the telephone between January and June, 2008. . . .

[W]e are persuaded that [Chute’s] opinion was based on his analysis of [Vega’s] telephone in addition to his education, training and experience gained from conducting forensic investigations. Furthermore, [Vega’s] claims that Chute's opinions were incorrect and he lacked an understanding of cellular telephones goes to the weight of his testimony rather than its admissibility. . . . [Vega] had the opportunity to challenge Chute's opinions on cross-examination, and it was the duty of the jury to determine the credibility of [his] testimony in light of any conflicting evidence presented by [Vega]. Accordingly, we conclude that the court did not abuse its discretion in admitting Chute's testimony.

State v. Vega, supra. The Appellate Court therefore affirmed Vega’s conviction. State v. Vega, supra.

If you're interested in what happened to Padilla and Rodriguez (the other participant in the robbery), at least as of last year, check out this news story.