Friday, August 31, 2012

Wiretapping and the “Famous Hollywood Director”

After being indicted for two counts “of making a material false statement to the FBI and one count of making a false statement to the district court” judge during a hearing, John McTiernan, “a famous Hollywood movie director,” conditionally pled guilty to the charges.  U.S. v. McTiernan, ___ F.3d ___, 2012 WL 3553476 (U.S. Court of Appeals for the 9th Circuit 2012).  

 McTiernan was “sentenced to 12 months’ imprisonment and ordered to pay a $100,000 fine.”  U.S. v. McTiernan, supra. To understand the charges, and his plea, you have to understand what happened before this.

As the opinion explains, McTiernan hired former private investigator Anthony Pellicano to

illegally wiretap the telephone conversations of two individuals. Six years later, when the Federal Bureau of Investigation questioned McTiernan about Pellicano's activities, McTiernan claimed he knew nothing about any wiretapping. But the FBI had obtained a digital recording (the Recording) Pellicano had made -- unbeknownst to McTiernan -- of a telephone conversation in which the two men discussed an illegal wiretap.

Caught red-handed, McTiernan pleaded guilty to one count of making a material false statement to the FBI. Shortly thereafter, McTiernan engaged new counsel who convinced him to seek the withdrawal of his guilty plea, which the district court eventually allowed.  

U.S. v. McTiernan, supra. 

So, after McTiernan withdrew his guilty plea to the charge of making a false statement to the FBI, he was indicted again, on the charges noted above.  U.S. v. McTiernan, supra.  He pled conditionally guilty to the charges pursuant to Rule 11(a)((2) of the Federal Rules of Criminal Procedure. U.S. v. McTiernan, supra.  The plea let him challenge the district court judge’s ruling on two issues, one of which was to suppress the “Recording.”  U.S. v. McTiernan, supra. 

Now, the charges.  The first two were based on McTiernan’s association with Pellicano:

On February 13, 2006, McTiernan was interviewed by telephone by Special Agent Ornellas of the [FBI] in connection with an investigation into . . . Pellicano's use of illegal wiretapping. Ornellas asked [if] McTiernan had knowledge of Pellicano's wiretapping activities and . . . had discussed wiretapping with Pellicano. . . .

McTiernan [said] he had never discussed wiretapping with Pellicano, Pellicano had never mentioned his ability to wiretap telephone calls, and he had used Pellicano's services only once, in connection with his divorce.

The responses . . . were false. McTiernan later admitted he had hired Pellicano in or around August 2000 and paid him at least $50,000 to conduct an illegal wiretap of two individuals, one of whom was Charles Roven, the producer of a movie McTiernan was directing. Pellicano installed the wiretaps, listened to the subjects' business and personal telephone calls, and reported their contents to McTiernan.

Several weeks after Ornellas interviewed McTiernan, the government contacted McTiernan and suggested he retain . . .  an attorney. On March 4, 2006, McTiernan retained John Carlton, Esq. On March 16, [he] met with Carlton and the government regarding [his] statements to Ornellas. . . . [T]he government revealed its evidence of discussions between McTiernan and Pellicano regarding the wiretapping. . . .

The Recording, which was made on August 17, 2000, was recovered . . . from Pellicano's computer pursuant to a search warrant in the investigation and prosecution of Pellicano [for various federal crimes].

In the Recording, Pellicano [told] McTiernan, who was directing a movie in Canada, he had intercepted `tons of stuff’ and could not `even listen to all of them.’ McTiernan instructed Pellicano to focus on instances where the producer was `saying one thing to the studio and saying something else to others,’ and said catching the producer `bad mouthing’ the `studio guys’ would `really be useful.’

U.S. v. McTiernan, supra. 

McTiernan’s primary argument on appeal was that the district court judge, who took his plea and sentenced him, “erred in denying his motion to suppress the Recording.”  U.S. v. McTiernan, supra.  This is how the Court of Appeals summarized McTiernan’s argument on this issue:

Under 18 U.S. Code § 2515, `[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . if the disclosure of that information would be in violation of 18 U.S. Code §§ 2510 through 2522. 

McTiernan contends that the Recording should have been suppressed pursuant to § 2515 because Pellicano made the Recording in violation 18 U.S. Code § 2511(2)(d), which prohibits anyone from intercepting an oral communication `for the purpose of committing any criminal or tortious act.’

Unlike the 4th Amendment, § 2515 excludes `evidence obtained by entirely private misconduct. The limitation on use turns on improper interception . . . regardless of whether the interception was governmental or private.’ Chandler v. U.S. Army, 125 F.3d 1296, 1298 (9th Cir.1997).

U.S. v. McTiernan, supra.  (For the 4th Amendment and private searches, check out this earlier post.)

The Court of Appeals explained that to “o merit suppression under §§ 2511(2)(d) and 2515, a defendant must prove by a preponderance of the evidence that the recording at issue was made for an unlawful purpose.”  U.S. v. McTiernan, supra.  The burden in this case, then, was “on McTiernan to prove by a preponderance of the evidence that the Recording . . . was made for a criminal or tortious purpose.”  U.S. v. McTiernan, supra. 

McTiernan claimed he proved, by a preponderance of the evidence, that the Recording was made for a criminal or tortious purpose by presenting “evidence that Pellicano made the Recording as part of a recordkeeping process in support of Pellicano's `far-reaching criminal enterprise.’” U.S. v. McTiernan, supra.  McTiernan’s “principal evidence of Pellicano's purpose” was the opening statement “Pellicano made (in the third person) while representing himself at his own trial”, which was as follows:

`Mr. Pellicano . . . would have a minimum of 50 phone calls a day. And during . . . those phone calls there would be calls from people that he was investigating, from clients and other individuals that he needed to keep constant contact with.’

`Now, he decided to record those conversations for . . . his inventory; . . . to remind himself of what he needed to do and what a client professed a need to have, and thought . . . the best way to do that is . . . to record those conversations in an encrypted fashion so no one but Mr. Pellicano could listen to those recordings ever.’

U.S. v. McTiernan, supra. 

McTiernan claimed the Recording was “`for the purpose of committing a [ ] criminal or tortious act’” because it served as a reminder of the illegal acts Pellicano intended to commit. U.S. v. McTiernan, supra. The government argued that Pellicano's opening statement “is not credible evidence and is therefore insufficient to prove Pellicano's purpose in making the Recording.”  U.S. v. McTiernan, supra. 

While the district court judge “acknowledged the `questionable” evidentiary value of the opening statement,” she assumed, for the purposes of ruling on McTiernan’s motion, he “had demonstrated the Recording was made as a part of Pellicano's effort to create a digital `to do’ list of criminal tasks.” U.S. v. McTiernan, supra.  Despite this, the judge found that “such a purpose was not criminal or tortious, explaining”.  U.S. v. McTiernan, supra. She explained that there was

some evidence Pellicano kept the phone recordings of his conversations to remind himself of `things he needed to do.’ However, even assuming the `things he needed to do’ were criminal or tortious in some way, the Court rejects the proposition that this alone demonstrates that the recordings were made for the purpose of committing a criminal act.

[McTiernan's] definition of `for the purpose of committing a criminal or tortious act’ would include virtually any recording related to a criminal act made by one of the criminal participants because such a recording could always be construed as `recordkeeping’ under [McTiernan's] excessively broad definition.

There is no evidence that the Recording was to be used for a criminal or tortious act independent of the very criminal acts described in the Recording itself. Shielding defendants from their own self-made evidence of their crimes cannot be what Congress intended in enacting § 2515.

U.S. v. McTiernan, supra. 

The Court of Appeals agreed with the district court judge:

We find the district court's analysis persuasive. Like the district court, we need not determine whether the opening statement is sufficient evidence of Pellicano's purpose in recording his conversation with McTiernan because even if the Recording was a `to do’ list of criminal activities as McTiernan asserts, it was not made `for the purpose of committing any criminal or tortious act.’

U.S. v. McTiernan, supra. 

The Court of Appeals elaborated on the latter point:

The fact Pellicano was recording a conversation in which an illegal enterprise was discussed is not determinative under § 2511(2)(d) because . . . we look to the purpose and not to the subject matter of the recording. . . .  

[T]he purpose of recording a conversation to create a reminder list (even a list of illegal acts that are agreed to be done) is not a criminal or tortious purpose. Such a recording is not essential to the actual execution of an illegal wiretap, unlike a recording of a conversation made for the purpose of blackmailing another person, which directly facilitates the criminal conduct of blackmail.

In sum, recording a conversation for the purpose of creating a reminder list is not an integral part of the execution of an illegal wiretap and thus is not made `for the purpose of committing any criminal or tortious act.’

U.S. v. McTiernan, supra. 

The Court of Appeals therefore held that the district court judge did not err in denying McTiernan’s motion to suppress the Recording.  U.S. v. McTiernan, supra. 

McTiernan also claimed the judge who was chosen to rule on his motion to recuse the district court judge who had his case below erred in denying that motion.  U.S. v. McTiernan, supra.  He argued that the judge should be recused because she “(1) made a series of hostile comments about him during court proceedings, and (2) repeatedly denied motions to suppress Pellicano's [R]ecording”.  U.S. v. McTiernan, supra. 

After noting that the standard for recusal is “[w]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned”, the Court of Appeals found it was not error to deny McTiernan’s motion to recuse.  U.S. v. McTiernan, supra.  More precisely, it found that McTiernan had “shown no ground” to warrant her recusal.  U.S. v. McTiernan, supra. 

The Court of Appeals therefore affirmed the district court judge’s order denying McTiernan’s motion to suppress the Recording and upholding the other judge’s denying his motion for recusal.  U.S. v. McTiernan, supra. So, as this article notes, unless he tries to appeal to the U.S. Supreme Court, McTiernan will presumably have to show up and start serving his sentence.

Wednesday, August 29, 2012

Modem as Weapon

After Rocio Mask was convicted “at a general court-martial, of attempted voluntary manslaughter and failure to obey a military protective order” and “sentenced to confinement for 5 years and a dishonorable discharge”, she appealed.  U.S. v. Mask, 2012 WL 3562034 (U.S. Navy-Marine Corps Court of Criminal Appeals 2012).  The charges were brought under Articles 80 and 92 of the Uniform Code of Military Justice.  U.S. v. Mask, supra.

They arose from the following sequence of events, the description of which the Court of Criminal Appeals prefaced with these comments:

This case involves a sad history of domestic violence by both husband and wife toward each other over a lengthy period of time. Sadly, on 1 January 2011, a verbal argument between them tragically turned into yet another violent episode which ended in the appellant stabbing her husband, JM, in the abdomen.
U.S. v. Mask, supra.

The court then describes the events that led to the conviction noted above:

On that day, [Rocio], the victim and their two children, spent the day together shopping and dining. Later in the evening at their home, [Rocio] decided to take a nap because she had duty the next day.

JM took care of the children while she napped. Although JM described his wife as `in a bad mood,’ they were getting along fairly well that day. However, the atmosphere drastically and quickly changed.

JM and XM could communicate and hear each other via their headsets, and XM changed his settings to allow for JM's voice to broadcast through XM's television speakers. This allowed XM to overhear a portion of the ensuing incident between JM and [Rocio].

When [Rocio] first awakened from her nap and joined JM in the living room, she sat with JM on the couch where they talked while he was playing his game. Soon thereafter, [Rocio] retrieved a computer and sat nearby to use it. 

[She] asked JM for the information and password to his Facebook account. Because JM could not recall his password, he told [Rocio] she could change it. After accessing JM's Facebook account, an argument ensued between [Rocio] and JM about the content of JM's Facebook page, which escalated and turned violent.

[Rocio] commenced yelling and cursing at JM, and then repeatedly hitting him with the computer modem that she had yanked from the wall. JM tried to block [her] strikes, and on one occasion when he put up his arm to block it, the modem flew back and hit [Rocio] in the face causing her a bloody nose. JM thereafter attempted to retreat and diffuse the situation by going into a bathroom.

When he came out about five minutes later, JM discovered [Rocio] still very angry with him. [Rocio] bent JM's video game disc and commenced using both hands to hit him all while yelling and cursing at him.

JM backed away from the enraged [Rocio], attempting to deflect her striking him. JM ultimately backed into the kitchen, where [Rocio] grabbed a large kitchen knife from the sink, which she thrust into his abdomen. After stabbing him, [she] angrily stated, `That's what you get, m–––––f–––––.’

U.S. v. Mask, supra. (I’m referring to the defendant as Rocio, rather than Mask, because I’m assuming JM’s name was also Mask.)

The opinion notes that

[JM used his cell phone to call after Rocio “left the kitchen and failed to administer proper first aid to him”]. Numerous law enforcement personnel descended upon the marital house.

[Rocio] claimed JM tried to strangle her and she acted in self-defense by stabbing him. . . . [B]ecause their children were home at the time of the incident, GM, a social worker from the State of Illinois child protective services agency, commenced a child abuse and neglect investigation. GM . . . retrieved the children and took them into state custody.

After charges were preferred, GM attempted to interview [Rocio] on base, at the Transient Personnel Unit barracks, due to the ongoing child abuse and neglect case. When GM first arrived and indicated to [Rocio] she wished to interview her about the incident with her husband, [Rocio] told GM her attorney told her `not to talk with anyone.’

GM indicated she was going to cease the interview and depart, however before GM could leave, [Rocio] said, `Oh, I can talk to you.’ GM clarified that [Rocio] desired to talk with her without an attorney, and then GM took a statement her in which she provided her version of the events of New Year's Day. During that interview, [Rocio] told GM, `I should have killed JM as well as myself.’ At trial, the Government offered GM as a witness and solicited testimony. . . .

U.S. v. Mask, supra.

On appeal, Rocio argued, first, that “the Government improperly elicited testimony at trial from GM that [Rocio] asserted her 5th Amendment right to remain silent during the child abuse and neglect case interview.”  U.S. v. Mask, supra.  The appellate court noted, first, that

GM, a social worker with the State of Illinois, was not interrogating [Rocio] as a criminal suspect but rather conducting a child abuse and neglect investigation to determine the proper resolution for the children's placement. The record is utterly devoid of any indication that GM was acting in concert with military investigators or that military officials at Great Lakes were in control of the state child protective service agency.

As such, GM was not required to read Miranda warnings to [Rocio]. . . . Nonetheless, [Rocio] could invoke her 5th Amendment right to remain silent in response to any questioning by GM. 

U.S. v. Mask, supra. 

The Court of Criminal Appeals then reviewed the facts and found that the record showed

that [Rocio] never indicated to GM she wanted to actually remain silent. She merely told GM that her attorney had advised her not to speak to anyone. As soon as GM indicated she would then leave and not take a statement, [Rocio] immediately followed up with the statement that `Oh, I can talk with you.’

Assuming arguendo that [her] first statement referencing what her attorney advised her was an equivocal or ambiguous reference to her right to remain silent, she immediately clarified her own statement and advised the social worker she would not exercise her right to remain silent. Since [Rocio] clearly did not exercise her constitutional right to remain silent, GM's testimony was not improper.

U.S. v. Mask, supra. 

Rocio’s other argument on appeal was that “the evidence was legally and factually insufficient to prove that she specifically intended to kill her husband and did not act in self-defense”.  U.S. v. Mask, supra.  In addressing this argument, the appellate court noted that the test for the legal sufficiency of the evidence is “whether, considering the evidence in the light most favorable to the Government, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.” U.S. v. Mask, supra. 

The Court of Criminal Appeals explained that to convict Rocio of attempted voluntary manslaughter, the prosecution was required to prove:

(1) that [she] did a certain act, that is: stab JM in the stomach with a knife; (2) that such act was done with the specific intent to kill JM without justification or excuse; (3) that such act amounted to more than mere preparation; that is, it was a substantial step and a direct movement toward the unlawful killing of JM; and (4) that such act apparently tended to bring about the commission of the offense of voluntary manslaughter. . . . 

Voluntary manslaughter is committed, when a person with an intent to kill or inflict great bodily harm unlawfully kills a human being in the heat of sudden passion caused by adequate provocation. . . . Passion means anger, rage, pain or fear which prevents clear reflection.

U.S. v. Mask, supra. 

Rocio claimed the evidence presented at trial was insufficient because

(1) the victim in this case had a history of domestic abuse against [her]; (2) [she] stabbed the victim only one time; (3) her statement to the victim at the time of the incident and her statement to the social worker were taken out of context and not an indication of her intent to kill; and (4) she acted in self-defense. 

U.S. v. Mask, supra. 

The Court of Criminal Appeals did not agree.  It found that it was

clear from the review of the record of trial that evidence exists which proves every element of attempted voluntary manslaughter. After carefully reviewing the record of trial and considering the evidence in the light most favorable to the prosecution, we are persuaded that a reasonable fact-finder, in this case the members, could indeed have found all the essential elements of attempted voluntary manslaughter beyond a reasonable doubt. . . .

Furthermore, after weighing all the evidence in the record of trial and recognizing that we did not personally see the victim's testimony or that of the other percipient witnesses, we are convinced beyond a reasonable doubt of [Rocio’s] guilt as to this charge.

U.S. v. Mask, supra. 

Monday, August 27, 2012

The Thumbcache, Malware and Child Pornography

After being convicted of 65 counts of “possession of materials portraying a sexual performance by a minor” in violation of Kentucky law, Samuel Crabtree appealed.  State v. Crabtree, ___ S.W.3d ___, 2012 WL 3538316 (Kentucky Court of Appeals 2012). 
This is how the prosecution arose:
In late October 2009, Crabtree was a student at Eastern Kentucky University (EKU). He experienced problems with his computer -- primarily, that it was running too slowly. Believing his computer was infected with malware, he took it to Resnet, a vendor that provides computer services for EKU's students.

While working on Crabtree's computer, one of the Resnet technicians discovered some suspicious filenames. Resnet contacted the campus police. EKU police then confiscated the computer and transported it to the Kentucky State Police laboratory in Frankfort.

When Crabtree contacted Resnet to retrieve his computer, he was advised to contact EKU police. He went to the station unannounced and spoke to Detective Collins, who told Crabtree that his computer had been confiscated.

Crabtree readily admitted he had used the internet to look up shock videos and had viewed some videos and still images that were child pornography. Crabtree told Collins the material sickened him; and so he had tried to delete them. Crabtree wrote down his account of what happened for Collins.

State v. Crabtree, supra. 
Crabtree was indicted on 67 counts of possessing matter portraying a sexual performance by a minor, convicted of 65 counts of that offense and one count of criminal attempt to possess matter portraying a sexual performance by a minor. State v. Crabtree, supra.  He was sentenced to 5 years in prison for each possession count and 1 year for the attempt account—all to be served concurrently. State v. Crabtree, supra. 
The Kentucky State Police’s Electronics Branch conducted a
forensic analysis of Crabtree's computer. Even though it had already been partially cleaned by Resnet, the technician discovered five videos containing child pornography in a system file labeled `Saved.’ She also identified sixty-two images in some hidden files that she flagged as child pornography.

State v. Crabtree, supra.
Crabtree’s first argument on appeal was that the evidence did not “support a charge that he knowingly possessed the illegal materials.”  State v. Crabtree, supra. The Court of Appeals began it analysis of that argument by outlining standards articulated by the U.S. Court of Appeals for the 9th Circuit.  In U.S. v. Kuchinski, 469 F.3d 853 (9th Circuit 2006), the court held that knowingly receives and possesses child pornography images “when he seeks them out over the internet and then downloads them to his computer.”  And in U.S. v. Romm, 455 F.3d 990 (9th Cir. 2006), the 9th Circuit held that in “the electronic context, a person can receive and possess child pornography without downloading it, if he . . . seeks it out and exercises dominion and control over it.” 
The Kentucky Court of Appeals noted that the prosecution’s evidence was
threefold, consisting of: the videos, the still images, and Crabtree's confession. The videos were discovered in the Saved and Incomplete folders in an application called Limewire, a now-defunct `peer-to-peer’ sharing network. Such a network allows users to share files with other users -- be they music, photographs, documents, or videos. Special software was required in order to access that network.

Users obtained files on Limewire by typing in search criteria. Limewire returned a list of files related to the search words. A user would click on the file he wished to download. Limewire would respond with a dialog box asking if the user was sure he wanted to download the file.

The download would not commence until the user confirmed the instruction by again clicking on the `yes’ button. Thus, the application gave the user two opportunities to consider whether he actually wanted a file to be downloaded to his computer.

When a user downloaded a file through Limewire, the download would be automatically stored in the Saved folder. If a file failed to download even a miniscule piece of information, the application would place it in the Incomplete folder.

However, many files could still be viewed even if Limewire labeled them as Incomplete. Crabtree argues that the crime lab was unable to conclusively say he had watched the videos. Neither, however, could the lab determine that the videos had not been watched.

The still images were found in the thumbcache of Crabtree's computer. Thumbcache is a type of file that is automatically generated with certain versions of the Windows operating system. The catalogued images include photographs that were viewed as well as the opening frame of videos that had been watched, generating a `thumbnail’ marker of the original file. 

Thumbnails are reduced versions of larger images; they are stored in files and used for identifying and organizing photo and video files.

Thumbcache files are hidden; most casual computer users are not aware of their existence, and special software is required to view the contents. Because thumbcache creates a brand-new, separate file of an image that is viewed, the thumbnail remains stored in the thumbcache even if the original file is deleted. It is essentially a collection of fingerprints of images that have been on the computer.

State v. Crabtree, supra (emphasis in the original).  The opinion notes that
Crabtree's laptop had the Windows Vista operating system. In earlier versions of Windows, the thumbcache was known as thumbs.db; the new filename is thumbcache.dll.

State v. Crabtree, supra. 
The court also explained that the KSP’s Electronics Branch

flagged 67 images from the thumbcache of Crabtree's computer. Some were recognized as opening frames of videos which are well-known to collectors of child pornography and to law enforcement specialists. The KSP expert testified that it was impossible to determine which ones had been watched or viewed. However, in order to be located in the thumbcache, the images had to have appeared on the screen: thus, to have had possession.

State v. Crabtree, supra (emphasis in the original).
The Court of Appeals therefore found that the “evidence was `beyond mere suspicion that Crabtree had possessed the images found.” State v. Crabtree, supra. 
As noted above, the prosecution also relied on Crabtree’s confession.  State v. Crabtree, supra.  Crabtree signed the following statement:
`A while ago, out of boredom and curiosity I looked at some mature content using limewire [sic ]. . . . I looked to find disturbing images or videos that would shock me. Some of these could be classified as child pornography. I tried to delete these things from my laptop. . . .

I realize that looking at this type of stuff was wrong and I feel sick because I did look at things that I should not have looked at. However I did not realize that anyone would find out.

State v. Crabtree, supra. 
The Court of Appeals found that this statement “corroborated what was found in the Limewire folders and in the thumbcache.”  State v. Crabtree, supra.  It also noted that the thumbcache images corroborated
Crabtree's assertion that he deleted illegal images of child pornography. Furthermore, in his discussion with Collins, Crabtree described a video he had watched in detail. Traces of this video were not found on the computer. The expert testified that it was possible that an innocuous image in the thumbcache could have been the opening frame of that video, causing it to not be flagged in the forensic analysis.

State v. Crabtree, supra. 
Based on all this, the court found that Crabtree’s
confession -- along with the Limewire content and the thumbcache images -- demonstrated that it was reasonable for a jury to believe that Crabtree had sought out and had either downloaded or viewed the illegal images. He had control of them and he possessed them.

State v. Crabtree, supra. 
Crabtree also “urge[d]” the Court of Appeals to }consider that his merely viewing child pornography images before deleting them should not be deemed to constitute actual possession.”  State v. Crabtree, supra.  The court concluded, however, that after
reviewing the facts . . . we are not persuaded that this is a valid argument in light of the 9th Circuit's definition of possession in Romm, supra: that the act of seeking out child pornography and exercising control over it constitutes criminal possession -- regardless of whether it is downloaded.

Crabtree admitted to seeking out the material and to having it on his computer. Some of the videos remained, and numerous videos and images left their traces in the thumbcache. His attempt to clean up the computer by deleting the files does not purge him of the crime committed.

Rather, it clearly illustrates an attempt at a cover-up after the fact. Furthermore, as Romm holds, Crabtree had the images in his control: he could have saved, printed, or shared them before he deleted them.

While Crabtree alludes to the possibility that the files mysteriously appeared on his computer by some accident, he did not present any evidence at trial to support this theory. On the contrary, in order for the videos in the Limewire folders to have been downloaded, Crabtree had to click twice -- once on each file name, and then again to confirm the download. The filenames were explicit.

They are too vulgar to be repeated in an opinion of this Court, but it is beyond dispute that the filenames clearly stated sexual content and included the ages of the children depicted in them.

State v. Crabtree, supra. 
For this and other reasons, the Court of Appeals affirmed Crabtree’s conviction and sentence.  State v. Crabtree, supra. 
The court also included a rather cryptic passage in its opinion, one I, at least, wish it had expanded to provide more details on the issue it was concerned about:

We note that this case demonstrates a need for technical training among legal professionals. There were several instances during the trial when it appeared that counsel for each party attempted to elicit testimony from the experts but failed because of confusion of technical terms.

 In this particular case, the evidence of guilt was overwhelming, but we anticipate that this communication gap could be damaging in cases with weaker evidence.

State v. Crabtree, supra. 

Friday, August 24, 2012

The Austin Healey, the Emails and Larceny

After Arthur Glen Kurrus was convicted of two counts of larceny in the first degree in violation of Connecticut General Statutes §§53a–119 and 53a–122 (a)(3) and one count of forgery in the second degree as an accessory in violation of Connecticut General Statutes§§ 53a–8 and 53a–139, he appealed.  State v. Kurrus, 137 Conn.App. 604, --- A.3d ----, 2012 WL 3288205 (Connecticut Court of Appeals 2012).

Section 53a-110 of the Connecticut General Statutes defines larceny, generally, as follows:  “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.” In its opinion in this case, the Court of Appeals noted that

`Connecticut courts have interpreted the essential elements of larceny as (1) the wrongful taking or carrying away of the personal property of another; (2) the existence of a felonious intent in the taker to deprive the owner of [the property] permanently; and (3) the lack of consent of the owner.’

State v. Kurrus, supra (quoting State v. Flowers, 69 Conn. App. 57, 797 A.2d 1122 (Connecticut Supreme Court 2002)).

But before we get into the law, I need to outline the facts that led to Kurrus’ being charged with larceny (and forgery).  The opinion explains that in 2003,

Steven Cohen owned a 1967 Austin Healey (1967 Healey) he decided to sell. He contacted [Kurrus], and they orally agreed that [Kurrus] would sell the vehicle and set the price, but they did not create a written contract or agreement. The next day, [Kurrus]  sent a truck to retrieve the vehicle.

From 2003 until 2007, Cohen maintained infrequent contact with [Kurrus] by telephone and e-mail. Beginning in April, 2007, Cohen began e-mailing [him] more frequently for updates on the sale of the 1967 Healey. In July, 2007, after learning that [Kurrus] had moved his business to California, Cohen contacted [him] by e-mail to determine where the 1967 Healey was located.

In August, 2007, Cohen received a faxed letter from [Kurrus] promising to pay $25,000 for the sale of the vehicle. At some point after receiving the faxed letter from [Kurrus], Cohen contacted the police to report that the 1967 Healey had been stolen. In September, 2008, Cohen received a check in the amount of $25,000 from [Kurrus’] attorney.

In April, 2005, Michael Torsone purchased a 1967 Jaguar XKE (1967 Jaguar) and registered the vehicle in New York. Later in 2005, Torsone decided to have Donovan Motorcar Services (Donovan) perform restoration work on the vehicle. In June, 2006, Torsone retrieved the car from Donovan prior to the completion of brake and front end work.

After unsuccessfully trying to complete the brake work himself, Torsone contacted [Kurrus], [who] told him to bring the car to his business, Paradise Garage, in Lime Rock, Connecticut. After dropping off the 1967 Jaguar, Torsone had conversations with [Kurrus] during which Torsone detailed what work he wanted completed as well as whether he wanted to sell the car.

Torsone did not have a written contract with [Kurrus] but had an oral agreement that allowed [him] to keep the 1967 Jaguar in his showroom and to talk to people about whether they would want to purchase the vehicle. [Kurrus] set up several auctions for the 1967 Jaguar in October, 2006, as well as in March, April and May, 2007.

By May, 2007, [Kurrus] had engaged in what he characterized as a `cash and trade’ deal that involved four vehicles: Cohen's 1967 Healey, Torsone's 1967 Jaguar, a 1960 Austin Healey (1960 Healey) owned by a third party and a 1972 Porsche 911 owned by [Kurrus]. [He] traded Cohen's 1967 Healey for the 1960 Healey, sold the Porsche for $25,000 and sold Torsone's 1967 Jaguar for $68,500 to a couple in New Hampshire, Melvin Flowers and Shirley Flowers. In order to effectuate the sale of the 1967 Jaguar, [Kurrus] instructed an acquaintance, Frank Saffioti, to sign the New York state registration for the 1967 Jaguar over to Paradise Garage and to sign Torsone's name.

Torsone spoke to [Kurrus] about the sale of the 1967 Jaguar on June 17, 2007, and contacted the state police to report that his car had been stolen.

State v. Kurrus, supra.

Kurrus was subsequently charged with “larceny in the first degree of the 1967 Jaguar in count one, forgery in the second degree as an accessory of the registration document to the 1967 Jaguar in count two and larceny in the first degree of the 1967 Healey in count three.”  State v. Kurrus, supra. The jury convicted him on all counts and the court then sentenced him to “ten years imprisonment, execution suspended after three years, and five years probation with conditions.”   State v. Kurrus, supra.

On appeal, Kurrus claimed the trial judge should have instructed the jury on mistake of fact as to the forgery count and the larceny counts.  State v. Kurrus, supra. As Wikipedia notes, a mistake of fact defense in criminal law is a defendant’s argument that because he/she was “laboring under a mistake of fact, they never formed” the required mens rea, or intent to commit the crime.  Since they lacked intent, they did not commit the crime, and should therefore be acquitted.  The Court of Appeals found, though, that the judge did not err in giving the instruction on any of the counts, since it found the facts did not support a mistake of fact defense.  State v. Kurrus, supra.

That brings us to Kurrus’ third argument, which was that “there was insufficient evidence to sustain a conviction on the larceny of the 1967 Healey.”  State v. Kurrus, supra. The Court of Appeals began its analysis by reviewing the evidence the state relied on in proving Kurrus committed larceny with regard to this vehicle.  State v. Kurrus, supra.

It began with a “May, 2003” letter Cohen sent to Kurrus “regarding documentation about the 1967 Healey.”  State v. Kurrus, supra. In the letter, Cohen said “he recognized that the market value of the car might not correlate to the amount of money he had expended on it for restoration and he would rely on [Kurrus] to price the car appropriately.”  State v. Kurrus, supra.

The court next noted the substance of four emails:

On April 14, 2007, Cohen contacted [Kurrus] by e-mail stating: `I hope we have the opportunity to sell my [1967] Healey this spring as I am very anxious to move the car. I appreciate your patience in trying to get a good price. At this point I recognize that I will have to take a hit, but I would really like to finally sell it.’ [Kurrus] responded on April 16, 2007, stating: `I'm confident in closing the deal we spoke of in our last conversation.’ He also declared that he was planning the deal to take place in April and would keep in touch with Cohen.

Cohen e-mailed [Kurrus] again on May 15, 2007, asking about the sale of the 1967 Healey. [Kurrus] responded the same day and assured Cohen the deal was `alive and well.’ Cohen replied and said he was `glad to hear that [the] deal is alive. Just let me know when things are concluded.’

On June 12, 2007, Cohen again e-mailed [Kurrus] looking for information about the 1967 Healey. After detailing several improvements he had made to the car, Cohen noted that he saw `a number of cars that are in inferior condition to mine going for prices that I would find acceptable at this point. . . . I certainly don't want the car back after all this time and have the hassle of selling it myself. It's just that at this point, after four years, I'd like to know what the prospects are for selling it under our present arrangement.’

Cohen again e-mailed [Kurrus] on July 26, 2007. The e-mail stated: `I just discovered from your website that you are moving. I have not heard from you since it sounded like you had a promising transaction involving my [1967] Healey a couple of months ago. . . . I am still hoping you can sell my car, but I'd like to know where it is at the moment and what your plans are.’

State v. Kurrus, supra.

And, finally, in August of 2007 Cohen

received a faxed handwritten letter from [Kurrus]. It stated: `This written document will confirm my debt to you for sale of your 1967 . . . Healey for $25,000. As you recall [from] our conversations in January and February and subsequent emails outlining a trade for a 1960 . . . Healey that I consider a superior example and one special enough that I would take possession of and own personally and pay you directly. I am comfortable with having you hold ownership documents to both vehicles until you're paid in full. I'm also aware of your experience with your [1967] Healey was not a good one, so I'm willing to share the 1960 one with you so you can see how great one of these cars can be. This can be a win win for both of us.’

State v. Kurrus, supra.

Based on all this, Kurrus argued on appeal that the prosecution did not prove that he

wrongfully withheld the 1967 Healey.  [Kurrus] contends that e-mails between himself and Cohen talking about a `deal’ constituted authorization for the cash and trade deal and that the prosecution failed to establish that Cohen had revoked his authority prior to the trade of his 1967 Healey.

Moreover, [Kurrus] argues, although Cohen may have had understandings or impressions about the nature of their arrangement, there was no evidence that such impressions were communicated to [him]. Thus, there was insufficient evidence to support a finding that he wrongfully withheld the 1967 Healey.

State v. Kurrus, supra.

The Court of Appeals began its analysis by noting that in reviewing a sufficiency of the evidence argument it has to “`determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict’”. State v. Kurrus, supra (quoting Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 904 A.2d 149 (Connecticut Supreme Court 2006)). It then noted that in addition

to the e-mail communications between Cohen and [Kurrus], Cohen testified that he reached a point where he was no longer comfortable waiting for [Kurrus] to sell the 1967 Healey. Cohen also testified that he agreed to sell the vehicle for $25,000 after he discovered that [Kurrus] had relocated and realized he did not know where his car was located.

In August, 2007, prior to receiving the faxed letter from [Kurrus], Cohen testified that he told [him] by telephone that, if he did not receive money immediately, he would go to the authorities. Additionally, Cohen testified that he had no recollection of any conversation about a trade deal, that he never agreed to anything in the faxed letter and that the first time he heard about a trade was in the letter.

State v. Kurrus, supra.

The Court of Appeals therefore held that,

[o]n the basis of the evidence presented at trial, the jury reasonably could have concluded that Cohen did not know that his 1967 Healey was being traded for the 1960 Healey and that he did not authorize the trade. The jury logically could have inferred that Cohen was aware of and authorized only the sale of his vehicle.

It did not have to accept [Kurrus’] position that the e-mail communications about a trade deal constituted Cohen's knowledge about and authorization of the trade of his 1967 Healey. Viewing the evidence in the light most favorable to sustaining the verdict, we conclude that the evidence was sufficient to support the jury's finding that by August, 2007, [Kurrus] wrongfully withheld the 1967 Healey.

State v. Kurrus, supra.

If you’re interested, you can read more about the facts in the case in the news story you can find here. You can find a description of Kurrus’ testimony in his own defense in this news story, and this press release explains that he paid $140,000 in restitution.