After he was convicted of “engaging in a child exploitation
enterprise” in violation of 18 U.S. Code § 2252A(g) and given a “life sentence”, John Wyss appealed. U.S. v. Wyss, 2013 WL 5701059 (U.S.Court of Appeals for the 5th Circuit 2013). The Court of Appeals
begins its opinion by noting that the
key issue at trial was whether Wyss
properly was identified as the person, using the screen name `Bones’, who
published child pornography onto an internet bulletin board known as `Dreamboard’.
U.S. v. Wyss, supra.
In a footnote the court explains that Dreamboard is a
highly encrypted, members-only,
internet bulletin board that promotes members to produce, advertise and share
pornographic images and videos of child sexual abuse, including links to an
approved, password protected, third-party website for downloading.
U.S. v. Wyss, supra.
Before it took up Wyss’ challenges to his conviction, the
Court of Appeals noted how the prosecution arose:
As a result of search warrants executed
at Dreamboard's host entity, Certified Hosting Solutions, the government seized
the hard drives for Dreamboard's servers. Stored IP addresses were obtained
from the servers. With those addresses the government's computer forensics
specialist, James Fottrell, was able to determine the names of Internet Service
Providers, such as Sprint for each IP address.
Subpoenaed records from Sprint allowed
Fottrell and other government investigators to identify John Wyss, at a
specified address in Monroe, Wisconsin, with an assigned network access
identifier `JWYSS14’ as the person who posted child pornography on Dreamboard
using the name `Bones’.
Prior to execution of warrants at the
latter address, Wyss's half-sister Teresa Dampier was informed by her live-in
friend Jerry Dahlen, a member of the Monroe, Wisconsin police department, that
her brother was in trouble again and that federal agents were planning to
search their residence. Dampier relayed that information to Wyss who denied
knowing the reasons for agents' interest in him.
Dampier and Dahlen confirmed that Wyss
received mail at their residence, but lived in the sleeper compartment of his
tractor-trailer. Wyss's location was subsequently determined through a court
order to Sprint. That order authorized agents to obtain cellular tower location
information used by Wyss's cellular telephone to connect to the Internet.
U.S. v. Wyss, supra.
According to the opinion, Wyss was arrested and officers
executed a search warrant at
his
tractor-trailer at a border checkpoint north of Laredo, Texas. Among various
items seized during the search of the sleeper compartment and admittedly owned
by Wyss, agents found a Gateway laptop computer with a hard drive that was
completely empty, a Sprint cellular telephone, three Sprint aircards Wyss
admitted using to access the Internet, an empty box for a Toshiba laptop
computer, a power cord that did not fit the Gateway laptop, a product key for a
Toshiba laptop, and a DVD with the image of a child, nude from waist up, and
containing the word `Lolita’.
After receiving his `Miranda’ rights
Wyss orally agreed to speak to agents. He denied involvement with child
pornography and membership in an internet bulletin board. While denying ever
using the screen name Bones, he did admit to visiting other interest websites
that corresponded with online activities and postings by Bones.
Subsequently during a
series of jailhouse discussions with his cellmate, Wyss admitted he used the
name Bones on Dreamboard, describing his and other members use of that internet
bulletin board. Wyss further admitted that he destroyed certain incriminating
evidence of child pornography before his arrest due to suspicion that he was
under investigation. The cellmate, Michael Biggs, was a Dreamland member who
testified against Wyss pursuant to a plea agreement. . . .
Over defense objections, [at Wyss’]
trial,] Sprint's custodian of records gave testimony to authenticate records of
IP addresses, data usage and customer subscriber information. He further
explained that the records were maintained by Sprint for billing purposes. The
government's computer forensics expert Fottrell testified how he linked the IP
addresses and data used by Bones on Dreamboard's servers to the IP addresses
and data assigned to Wyss' Sprint account records.
U.S. v. Wyss, supra.
Wyss made several arguments on appeal, only one of which is
examined here. He argued that Rules 702
and 704 of the Federal Rules of Evidence were violated when
the district court [judge], over his
timely objection, impermissibly allowed the government's computer forensic
expert to opine that Wyss is the same person who participated on Dreamboard
using the name Bones. He further argues that the erroneous admission of that
testimony gravely affected his substantial rights to a fair and impartial
trial.
The prosecution counters that there is
no showing of an abuse of discretion because the expert was accepted as a
computer forensic expert, sufficient reliable evidence of record formed the
basis for his opinion, and that it did not embrace Wyss's mental state or
condition.
U.S. v. Wyss, supra.
The Court of Appeals began its analysis of Wyss’ argument by
noting that
[w]e review evidentiary rulings for an
abuse of discretion, and in the event of error, we will affirm provided the
error is harmless. See U.S. v. Valencia, 600 F.3d 389 (U.S.
Court of Appeals for the 5th Circuit 2010). While `review of evidentiary
rulings is heightened in a criminal case,’ U.S. v. Gutierrez–Farias, 294
F.3d 657 (U.S. Court of Appeals for the 5th Circuit 2002), to obtain reversal,
the appellant `must demonstrate that the district court's ruling caused him
substantial prejudice.’ U.S. v. Bishop, 264 F.3d 535, 546 (U.S.Court of Appeals for the 5th Circuit 2001).
U.S. v. Wyss, supra.
The court then outlined the legal issues raised by Wyss’
argument about the trial judge’s letting the government’s expert to express his
opinion that Wyss was “Bones”:
An expert witness may testify at trial
if his/her `scientific, testimonial or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue.’
Federal Rules of Evidence 702. Further, an expert may testify `in the form of
an opinion or otherwise, if (1) the testimony is based upon sufficient facts or
data; (2) the testimony is a product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the facts of the
case.’ Federal Rules of Evidence 702.
An expert `opinion is not objectionable
just because it embraces a ultimate issue’. Federal Rules of Evidence 704. An
expert in a criminal case may not, however, offer `an opinion about whether the
defendant did or did not have a mental state or condition that constitutes an
element of the crime charged or of a defense. Those matters are for the trier
of fact along.’ Federal Rules of Evidence 704.
U.S. v. Wyss, supra.
The Court of Appeals then applied this standard and found
there was no error:
Testimony from the government's
computer forensic expert, Fottrell, was based on examination and comparisons of
Wyss's Sprint records, IP addresses and data assigned to him on certain dates
and times, along with data retrieved from the Dreamboard servers showing the IP
addresses and data that correspond to postings by Bones.
Without objection during his direct
examination, the expert explained how he identified the use of Wyss's Sprint
internet account to post messages on Dreamboard under the name of Bones on
multiple occasions during relevant periods of time. Testimony also showed there
was only one Dreamboard member using the name Bones as an identifier.
Cross
examination of the expert sought to shift responsibility for Dreamboard
postings away from Wyss to the possibility of technical manipulation of his
computer by others, including third party access to control his computer, in
order to make Dreamboard postings. On re-direct examination, over defense
objection, and in response to the defense proffered possibilities of technical
manipulation, the expert stated he `believed that John Wyss, Sprint customer,
is Bones on Dreamboard.’
As stated before, that conclusion was
based on linking up Dreamboard activity with Wyss's Sprint account usage. At
that point and upon counsel's request, the district court admonished the jury
on the use of expert testimony. While the instruction was neither the full
pattern instruction nor an objected-to charge on how to treat expert testimony,
the ultimate jury instructions given at the end of trial gave the complete
explanation. We discern no substantial harm in the latter regards.
U.S. v. Wyss, supra.
The court also noted that
[e]ven assuming errors from the opinion
testimony, it was harmless error in light of the remaining overwhelming
evidence, which was discussed above. Wyss acknowledges that prior to the
opinion given during redirect examination, the expert provided the jury with
adequate information to reasonably decide whether Wyss operated under the
online screen name `Bones’.
In additional consideration of all other evidence
in the light more favorable to the prosecution and due deference to the jury's
verdict, we agree.
U.S. v. Wyss, supra.
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