Friday, November 29, 2013

The Bank, Aggravated Identity Theft and "Using" Identities

After a jury convicted him of “two counts of making false statements to a bank, in violation of 18 U.S. Code § 1014 (Counts One and Four), and two counts of aggravated identity theft, in violation of 18 U.S. Code § 1028A (Counts Two and Three)”, David Miller appealed.  U.S. v. Miller, 2013 WL 5812046 (U.S. Court of Appeals for the 6th Circuit 2013).  

 The judge who had the case sentenced Miller to “forty-five months imprisonment” plus “two years of supervised release” and also “ordered him to forfeit $337,500.”  U.S. v. Miller, supra. This post examines the argument Miller made as to why his convictions for aggravated identity theft should be reversed.  U.S. v. Miller, supra.

According to the opinion, the prosecution arose because Miller and

his pastor William Wellons wanted to buy a parcel of real estate from a farmer as an investment property. Wellons negotiated with the farmer and agreed to purchase the land for a little over $790,000. The purchase was set to close on May 30, 2007.

They . . . acquired an ownership interest in Fellowship through their service to the company: Miller obtained a 19.5% interest because he was Fellowship's manager and Wellons obtained a 4.5% interest because he was Fellowship's secretary. Ultimately, Miller secured $675,000 in investments before the closing date.

Because Miller had not raised $900,000 before the closing, he approached First Bank to obtain a loan. Miller represented to Joe Stocker of First Bank that the David E. Miller Development Company, Inc. (`DEMCO’) . . . needed a $337,500 loan to purchase a piece of real property. Miller told Stocker he wanted to purchase the property with cash, but had run out of time to secure investors prior to closing and planned to pay off the loan within six months with investor funds. First Bank agreed to loan $337,500 to DEMCO, with the property that Fellowship was going to acquire pledged as collateral.

Because DEMCO pledged Fellowship's property as collateral, First Bank required a written resolution from the members of Fellowship showing that they had authorized DEMCO to take such action. On May 24, 2007, First Bank sent a letter to the closing attorneys requesting that such a resolution be prepared before closing. 

The closing attorneys prepared a resolution, but it omitted a clause whereby the members of Fellowship specifically authorized DEMCO to pledge Fellowship property as collateral. First Bank supplied the necessary language, and the closing attorneys updated the resolution.

U.S. v. Miller, supra.  The opinion also explains that on May 25, 2007, the closing

attorneys sent the updated resolution to First Bank, Wellons, and Miller's assistant for review. Wellons noticed it was still incomplete because it did not list all members of Fellowship. He contacted Miller for the member list. . . . After Miller supplied Wellons with the names of all Fellowship members, Wellons handwrote those names on the updated resolution, signed it as Fellowship's secretary, and faxed it to the closing attorneys.

The Fellowship resolution contained two false statements: (1) that all Fellowship members were present at a meeting, and (2) that at this nonexistent meeting, they unanimously voted to allow the property to be pledged as collateral for a $337,500 loan to DEMCO. When Wellons signed the resolution, he did not know these statements were false because he thought Miller had spoken to all members of Fellowship about the DEMCO loan and they all agreed to allow DEMCO to pledge Fellowship property as collateral. 

In truth, Fellowship's members, other than Miller and Wellons, believed the property was being purchased free and clear of any encumbrances and they did not agree, nor would they have agreed if asked, to the property being pledged as collateral.

U.S. v. Miller, supra.  Finally, the opinion explains that a “few months later,” First Bank

conducted a review of the loan file and discovered that it did not contain a copy of the Fellowship resolution signed by both Wellons and Miller. First Bank eventually obtained from the closing attorneys a copy of the resolution, which had a heading indicating that it had been faxed from DEMCO on July 23, 2007. Miller does not deny that his signature is on that resolution or that First Bank required this resolution to close the loan. 

U.S. v. Miller, supra.  In July of 2009, Miller told “Fellowship's member investors for the first time that he had taken out a $337,500 loan to pay for his investment in Fellowship and that Fellowship's property secured this `personal loan.’” U.S. v. Miller, supra. 

On appeal, Miller argued that his convictions on Counts Two and Three for

aggravated identity theft must be reversed because, as a matter of law, he did not `use’ another person's name as alleged in those counts. The government's prosecution theory was that Miller `used’ the names of Fellowship members R. Mark Foster (`Individual A’ in Count Two) and Michael Lipson (`Individual B’ in Count Three) by including their names in the Fellowship resolution which falsely stated they were present at a meeting of all Fellowship members in which they voted to allow Miller, as Fellowship's managing member, to pledge Fellowship property for the DEMCO loan.

Miller asserts that 18 U.S.C. § 1028A does not criminalize this conduct because he only lied about what Foster and Lipson did, but he did not `use’ their names or identities. The government responds that the crux of these offenses is not that Miller claimed Foster and Lipson did something they in fact did not do, but rather that Miller `used’ their names to fraudulently obtain a loan from First Bank by misrepresenting that he had the authority to act on behalf of those individuals.

U.S. v. Miller, supra. 

The Court of Appeals began its analysis of this issue by explaining that whether a

criminal statute applies to the proven conduct of the defendant is an issue of statutory interpretation that we review de novoU.S. v. Lumbard, 706 F.3d 716 (U.S. Court of Appeals for the 6th Circuit 2013). . . . 18 U.S. Code § 1028A provides: `Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.’ 18 U.S. Code § 1028A(a)(1).

Subsection (c) includes making a false statement to a bank among the enumerated offenses, § 1028A(c)(4), and `means of identification’ is a defined term that includes a person's name, § 1028(d)(7). Substituting the facts of this case into the statute's variables, Miller committed aggravated identity theft if he knowingly used Foster's and Lipson's names, without lawful authority, when he made the false statement to First Bank that they had authorized him to pledge Fellowship property as collateral for DEMCO's loan.

U.S. v. Miller, supra. 

As noted above, the parties involved in this case “dispute[d] only whether Miller `used’ Lipson's and Foster's names under the statute.”  U.S. v. Miller, supra.  The Court of Appeals explained that because

`uses’ is an undefined term, we `construe it in accord with its ordinary or natural meaning.’ Smith v. U.S., 508 U.S. 223 (1993). This ‘”everyday meaning”’ reveals itself in `phraseology that strikes the ear as “both reasonable and normal[.]’” Watson v. U.S., 552U.S. 74 (2007) (quoting Smith v. U.S. supra). Defined in isolation from its statutory context, the dictionary meaning of the word `use’ is ‘”[t]o convert to one's service,” “to employ,” “to avail oneself of,” and “to carry out a purpose or action by means of.”’ ”Baileyv. U.S., 516 U.S. 137 (1995) (quoting Smith v. U.S. supra).

The Supreme Court has noted the `interpretational difficulties’ that the word `use’ poses because of its frequent inclusion in statutory text and the numerous “different meanings attributable to it.’ Bailey v. U.S., supra. That is why `[w]e consider not only the bare meaning of the word but also its placement and purpose in the statutory scheme. [T]he meaning of statutory language, plain or not, depends on context.’  Bailey v. U.S., supra.

U.S. v. Miller, supra. 

The Court of Appeals then explained that it was confronted with two “equally reasonable interpretations” of the term “use”:

On one hand, relying upon dictionary definitions, the government argues that Miller `used’ Foster's and Lipson's names within the ordinary meaning of that verb in that he employed their names to his benefit, converted their names to his service, and intentionally availed himself of their names in order to falsely manufacture authority to encumber Fellowship property for DEMCO's benefit. See Bailey v. U.S. supra.  

This reasonable interpretation flows from the plain language of the statute, which arguably criminalizes the generic `use’ of another person's name when making a false statement to a bank. The government fully embraced this broad interpretation at oral argument, conceding that if there is any false statement about authority, which necessarily involves the `use’ of someone's name, made in connection with a predicate offense under § 1028A(c), the government can always charge aggravated identity theft in addition to the underlying offense.

On the other hand, relying on statutory purpose, context, and an unpublished opinion from a district court in this circuit, Miller argues that one `uses’ a person's name under the `aggravated identity theft’ statute only if one either passes himself off as that person or acts on behalf of that person. See U.S. v. Wilcox, 2010 WL 55964 (U.S. District Court for the Western District of Michigan 2010). 

Miller acknowledges that although he may have lied about what Foster and Lipson did, he maintains that this conduct does not constitute `use’ of their names because he did not steal or possess their identities, impersonate them or pass himself off as one of them, act on their behalf, or obtain anything of value in one of their names. In other words, he did not `use’ Foster's and Lipson's names within the meaning of § 1028A by merely lying about what they did.

U.S. v. Miller, supra (emphasis in the original).

The Court of Appeals noted that, when confronted with the need to interpret a term used in a criminal statute, it usually relies on the legislative history of the statute at issue and/or on other cases interpreting the statute, but neither was useful here.  U.S. v. Miller, supra.  It examined the relevant legislative history but found it offered “no conclusive guidance” and also found that no other court had addressed this issue, i.e., it was an issue of first impression . U.S. v. Miller, supra. 

The court concluded, therefore, that the appropriate solution was to apply the rule of lenity, which

`requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.’ U.S. v. Beals, 698 F.3d 248 (U.S. Court of Appeals for the 6th Circuit 2012). . . . `When there are two rational readings of a criminal statute, one harsher than the other, the rule of lenity tells us that we are to choose the harsher only when Congress has spoken in clear and definite language.’ U.S. v. Brock, 501 F.3d 762 (U.S. Court of Appeals for the 6th Circuit 2007). . . . 

Nothing inherent in the term `uses,’ its placement in the text of § 1028A, or the statute's legislative history clearly and definitely indicates that the term, as applied to the names of persons, is broad enough to reach the mere act of saying that the persons did something they in fact did not do. 

The ambiguity arising from the attempted application of § 1028A to the facts of this case fits squarely within the rule of lenity, and we resolve the uncertainty in Miller's favor. See U.S. v. Ford, 560 F.3d 420, 425 (U.S. Court of Appeals for the 6th Circuit 2009) (`When ambiguity clouds the meaning of a criminal statute, the tie must go to the defendant’).  

U.S. v. Miller, supra. 

The court therefore held that

as a matter of law, Miller did not `use’ a means of identification within the meaning of § 1028A by signing a document in his own name which falsely stated that Foster and Lipson gave him authority, as Fellowship's managing member, to act on behalf of Fellowship and pledge its property for the DEMCO loan.

Accordingly, we reverse Miller's convictions on Counts Two and Three.

U.S. v. Miller, supra.  The Court of Appeals also, for other reasons, reversed Miller's conviction on Count Four, affirmed his conviction on Count One, vacated his sentence and remanded the case to the district court for “further proceedings consistent with this opinion.”  U.S. v. Miller, supra. 

Wednesday, November 27, 2013

Source Code, RoundUp and the 4th Amendment

On February 24, 2011, a federal grand jury charged Jeremy Brashear a grand jury with “distributing, receiving, and possessing material constituting or containing child pornography, in violation of 18 U.S. Code § 2252A(a).”  U.S. v. Brashear, 2013 WL 6065326 (U.S. District Court for the Middle District of Pennsylvania 2012).  After being indicted, he filed various motions, including one to suppress certain evidence, which the District Court Judge denied.  U.S. v. Brashear, supra.

Most recently, and most relevant for the purposes of this blog post, Brashear had a subpoena duces tecum issued to obtain certain evidence he believed would be useful in his defense.  U.S. v. Brashear, supra. To understand why he got the subpoena, it is necessary to understand how the case arose:

In 2010, Trooper Matt Powell of the Pennsylvania State Police in Indiana, Pennsylvania, conducted an investigation of peer-to-peer file sharing programs that may have contained child pornography. . . . Peer-to-peer file sharing networks enable computer users to share digital files between different network users. . . .

Trooper Powell used a program called Roundup 1.4.1 (`RoundUp’) to search files available for sharing in the Gnutella peer-to-peer file sharing network. . . . RoundUp is a modified version of the file sharing software PHEX. . . . RoundUp utilizes a database of `hash values’ from files known to contain child pornography. . . .

This database enables law enforcement to identify files with hash values that match the hash values of known child pornography. . . . RoundUp only identifies computer files that are available for downloading from a folder shared with the Gnutella network. . . .

Trooper Powell alerted Corporal Thomas Trusal to his findings. . . . Accordingly, Corporal Trusal obtained a subpoena ordering Comcast to provide subscriber and billing information for this IP address. . . .Based upon an aggregate of investigative materials, including the identification of the registered account holder, Corporal Trusal secured a search warrant for 1651 Kaiser Avenue, South Williamsport, Pennsylvania, 17702. . . .

Brashear resided in a trailer on the property of the 1651 Kaiser Avenue residence. As a result of information obtained through the execution of the search warrant, Brashear was arrested. . . . Law enforcement eventually secured an additional search warrant for Brashear's trailer and laptop. . . . This search revealed child pornography. . . .

U.S. v. Brashear, supra.

That brings us to the motion at issue in this opinion:

On July 25, 2013, Brashear filed an ex parte motion . . . for the issuance and service of a subpoena to compel the Pennsylvania State Police (`PSP’) to provide the source code for RoundUp. Defense counsel explained that he already obtained the PHEX source code and sought access to the RoundUp source code to compare the two.

U.S. v. Brashear, supra.

The District Court Judge granted Brashear’s motion

on July 26, 2013. . . .On September 23, 2013, Brashear filed a motion . . . to continue trial and jury selection. In support, he averred that, as of that date, the PSP had not produced the required source code. On October 17, 2013, the government filed a motion to quash the subpoena. . . . The government alleges that compliance would be unreasonable and oppressive under Federal Rule of Criminal Procedure 17(c)(2). . . .

U.S. v. Brashear, supra.

The judge began his analysis of the issue by noting Brashear was alleging that

his subpoena is necessary to determine whether the use of the RoundUp program violated [his] 4th Amendment rights. . . . The government asserts that Brashear is attempting to improperly use Rule 17 as a discovery vehicle, that the source code is subject to the law enforcement privilege, and that the information sought is irrelevant because the use of RoundUp did not violate Brashear's 4th Amendment rights. . . .  

U.S. v. Brashear, supra.

The District Court Judge then explained that the

issuance of a subpoena is governed by Federal Rule of Criminal Procedure 17. To obtain a subpoena under Rule 17, the moving party must establish the following:

`(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.” U.S. v. Nixon, 418 U.S. 683 (1974). The court must reconsider the Nixon standard when disposing of a motion to quash. U.S. v. Beckford, 964 F.Supp. 1010 (U.S. District Court for the Eastern District of Virginia 1997).’

U.S. v. Brashear, supra.

He then took up Brashear’s argument, and ultimately found that “the source code for RoundUp is not relevant because its use did not violate Brashear's 4th Amendment rights”. U.S. v. Brashear, supra.  The judge explained that the

source code for the RoundUp program is not relevant because investigating the use of a peer-to-peer file sharing program does not violate the 4th Amendment's protection against unreasonable searches. The 4th Amendment provides that `[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ U.S. Constitution, amendment iv.

A typical 4th Amendment analysis begins with analyzing whether the defendant possesses a reasonable expectation ofprivacy in the object being searched. Katz v. U.S., 389 U.S. 347 (1967)Kyllo v. U.S., 533 U.S. 27 (2001). Numerous cases have held that there is no reasonable expectation of privacy in files made available to the public through peer-to-peer file sharing programs. See, e.g., U.S. v. Stults, 575 F.3d 834 (U.S. Court of Appeals for the 8th Circuit 2009); U.S. v. Ganoe, 538 F.3d 1117 (U.S. Court of Appeals for the 9th Circuit 2008); U.S. v. Perrine, 518 F.3d 1196 (U.S.Court of Appeals for the 10th Circuit 2008).

U.S. v. Brashear, supra.  For Katz and P2P file-sharing, see this prior post.  For thoughts on Kyllo and P2P file-sharing, see this other prior post.

The judge also noted that

Brashear wishes to compare the modified source code for RoundUp with the original PHEX source code, but there is no need. The RoundUp program only accesses files shared through the file sharing network. . . .

By sharing files with the network, Brashear essentially shared those files with the public. He had no reasonable expectation of privacy over the files shared with Gnutella and, therefore, the use of the RoundUp program could not have violated his 4th Amendment rights.

U.S. v. Brashear, supra. 

He also pointed out that Brashear argued, in response, that in U.S. v. Jones, 132 S.Ct. 945 (2012),

the use of the RoundUp program constituted a physical trespass of Brashear's `effect’ -- the computer -- and was therefore an unreasonable search.  In Jones, the Court addressed whether the warrantless installation of a GPS tracking device to the defendant's motor vehicle violated his Fourth Amendment rights. . . .

The Court concluded that the defendant's `4th Amendment rights do not rise or fall with the Katz formulation’ concerning the defendant's reasonable expectation of privacy. U.S. v. Jones, supra.  

Instead, the Court found that the defendant's motor vehicle was an `effect’ and the warrantless physical trespass of that `effect’ to obtain information or evidence constituted an unreasonable search under the 4th Amendment. U.S. v. Jones, supra.  However, the Court noted that `[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to [the] Katz analysis.’ U.S. v. Jones, supra (emphasis in original).

U.S. v. Brashear, supra. 

As Wikipedia notes, the 4th Amendment says, in pertinent part, that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”.  Wikipedia (quoting 4th Amendment) (emphasis added).  In order to be protected under the 4th Amendment, a place or an item must fall within one of those four categories, i.e., must be a person, a house (or something analogous), papers (or something analogous) or an “effect”.

The judge concluded his analysis of Brashear’s argument by explaining that

[s]everal courts have rejected the application of Jones to the investigation of file sharing programs. See Russell v. U.S., 2013 WL 5651358 (U.S. District Court for the Eastern District of Missouri 2013); U.S. v. Nolan, 2012 WL 1192183 (U.S. District Court for the Eastern District of Missouri 2012); U.S. v. Brooks, 2012 WL 6562947 (U.S. District Court for the Eastern District of New York 2012); State v. Lemasters, 2013 WL 3463219 (Ohio Court of Appeals 2013)The court concurs with the rationale of these decisions.

The investigation of a file sharing program does not involve any physical trespass onto a constitutionally protected area. Trooper Powell did not physically enter Brashear's home or access his computer. Instead, Trooper Powell simply used a program that identified child pornography available on a public peer-to-peer file sharing program. This investigation involves `the transmission of electronic signals without trespass’ and does not implicate Brashear's 4th Amendment rights under Jones.

U.S. v. Brashear, supra. 

For these and other reasons, the judge granted the prosecution’s motion to quash the subpoena.  U.S. v. Brashear, supra. 

Monday, November 25, 2013

The Police Officer, Facebook and "Connecticut Romance"

This post examines an opinion the Superior Court ofConnecticut recently issued in a civil case:  Dzamko v. Dossantos, 2013 WL 5969531 (2013). To understand the issues the judge is addressing in this opinion, it is necessary to understand how the case arose.   

According to this opinion, this is why Joseph Dzamko sued Joseph C. Dossantos:

In 2012, the defendant, Joseph C. Dossantos, initiated sexually explicit conversations in an internet chat room, optimistically labeled `Connecticut Romance.’ Dossantos mistakenly believed that he was communicating with two fourteen-year-old girls. In fact, as courtwatchers will already surmise, the `fourteen-year-old girls’ were, in fact, police detectives.

Dossantos, who was forty years old, wanted his correspondents to believe that he was younger than he was. To bolster his claim, he sent three digital images of `himself’ to one of the `girls.’ Unhappily, the images were not images of Dossantos. They were, rather, images of the plaintiff, Joseph Dzamko (`Joseph’), appropriated by Dossantos from Joseph's Facebook page. 

The images of Joseph were not themselves compromising. They were perfectly normal photographs. But the context in which Dossantos used them plainly made it appear that the person thus depicted was engaged in sexually predatory behavior.

The detective receiving the transmissions recognized the person so depicted. It was Joseph. By malign fate, Joseph was a police officer in another town and had been a Police Academy classmate of the detective. The detective forwarded the images of Joseph to Internal Affairs.

Internal Affairs investigated, and Joseph had to tell his wife, Sarah Dzamko (`Sarah’) what had happened. The investigating officers eventually traced Joseph's Facebook images to Dossantos. Dossantos, confronted with the evidence, admitted that he had not only sent Joseph's images to the detective as images of himself but that he had done the same thing with at least twenty other females (or persons who he presumed to be females) on the internet.

Forensic review of Dossantos' computer revealed that these transmissions had occurred in the context of sexually explicit conversations. All of this caused Joseph and Sarah great distress.

Dzamko v. Dossantos, supra. 

The opinion also notes that on April 9, 2013,

Joseph and Sarah commenced this action against Dossantos by service of process. Their Revised Complaint consists of ten counts, but four of these counts (the Second, Sixth, Seventh, and Tenth Counts) have been withdrawn. Three additional counts (the First, Third, and Eighth Counts) are not the subject of the motion now before the court and can be ignored for present purposes.

That leaves three counts in contention: the Fourth Count (alleging publicity placing Joseph in a false light), the Fifth Count (alleging intentional infliction of emotional distress as to Joseph), and the Ninth Count (alleging intentional infliction of emotional distress as to Sarah).

Dzamko v. Dossantos, supra. 

For a summary of how someone initiates a civil suit in Connecticut, check out this site.  As it notes, someone who sues another person must file, among other things, a Complaint, with the court and then arrange to have the Complaint and a Summons served on the person(s) being served.  As Wikipedia explains, a Complaint must include a number of elements, one of which is statements of the causes of action the plaintiff is asserting against the defendant.  And as Wikipedia notes, that is usually contained in

a numbered list of legal allegations (called `counts’), with specific details about application of the governing law to the each count. In this section plaintiff usually cites existing Law, previous decisions of current court, decisions of the higher appellate courts, and cases from other courts, - as an analogy to resolve similar questions of law.

So, as the paragraph quoted earlier above notes, Dzamkos’ original Complaint included ten counts, but they withdrew four of those, leaving six counts.  Dzamko v. Dossantos, supra.  In this opinion, the judge is ruling on Dossantos’ Motion to Strike

the Fourth, Fifth, and Ninth Counts . . . [of the Complaint]. The Motion contends that these counts fail to state claims upon which relief can be granted.

Dzamko v. Dossantos, supra.  In other posts, I have explained what such a motion (made under Rule 12(b)(6) of the Federal Rules of Criminal Procedure) is intended to do.  Basically, it argues that the count or counts the motion targets do not state a cause of action that is viable under applicable law, so the count(s) must be dismissed as legally insufficient.  As I have noted, this is a way a defendant can get rid of all or part of a lawsuit without having to go to trial.

Here, the judge analyzed Dossantos’ arguments regarding  the three counts of the Dzamkos’ Complaint in numerical order, beginning with the Fourth Count, which asserted a cause of action for false light – publicity.  Dzamko v. Dossantos, supra.  If you are interested in learning more about that cause of action, check out this prior post.

The judge began his analysis of the false light - publicity cause of action by noting that

[t]he Fourth Count alleges that Dossantos publicized Joseph “in a way that placed him in a false light before the public and members of his profession.” Our Supreme Court adopted this form of the more general tort of invasion of privacy in Goodrich v. Waterbury Republican–American, Inc.,188 Conn. 107, 438 A.2d 1317 (Connecticut Supreme Court1982).

As Goodrich explains, `a false light invasion of privacy occurs if “(a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”’ Goodrich v. Waterbury Republican–American, supra (quoting 3 Restatement (Second) of Torts § 652E (1977)). . . .

Dzamko v. Dossantos, supra. 

The judge then analyzed the extent to which the Dzamkos had adequately pled these two elements, noting that the first is that the

false light in which Joseph was placed would be highly offensive to a reasonable person. This element plainly appears from the Revised Complaint. The offensiveness is not in the four corners of the transmitted images. Joseph conceded at the hearing that the images are perfectly normal photographs that are not offensive when simply displayed on a Facebook page. 

The offensiveness lies in the context in which Dossantos transmitted the images. The context would make it appear to a reasonable person that Joseph was a sexual predator. That was exactly the inference drawn by the detective receiving the images.

In this regard, the case is analogous to Braun v. Flynt, 726 F.2d 245 (U.S. Court of Appeals for the 5th Circuit 1984). Braun was a performer in a Texas amusement park who did an act with `Ralph the Diving Pig.’ Larry Flynt, a well-known publisher of raunchy magazines, obtained her photograph and published it in Chic magazine in the company of photographs of ill-clad women.

This caused Braun great embarrassment, and she recovered substantial damages for false light publicity. On appeal, the 5th Circuit agreed that, `the publication of Mrs. Braun's picture in the “Chic Thrills” section of the magazine was fully capable of conveying a false impression of Ms. Braun.’  Braun v. Flynt, supra.

Dzamko v. Dossantos, supra.  The judge noted that the Braun court’s analysis

is applicable here. The transmitted images of Joseph are not themselves sexual in nature. But the context in which they were sent strongly implies that Joseph was not a `wholesome person.’ In this context, the transmission of these images would be highly offensive to a reasonable person.

Dzamko v. Dossantos, supra. 

The judge then addressed the second element of the cause of action, which is that

Dossantos had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which Joseph would be placed. The Revised Complaint sufficiently pleads that Dossantos deliberately pilfered Joseph's Facebook images and sent them to numerous females in a highly sexual and unsavory context.

Dossantos would plainly have known that the transmitted images were of someone other than himself and similarly would have been fully aware of the context in which the images were being transmitted. Under these circumstances, the second element is adequately pled.

Dzamko v. Dossantos, supra. 

He then took up the Fifth Count, which alleged a cause of action for intentional infliction of emotional distress upon Joseph Dzamko.  Dzamko v. Dossantos, supra.  The judge noted, first, that the elements

of this cause of action are `(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe.’ Perez–Dickson v. City of Bridgeport, 304 Conn. 483, 43 A.3d 69 (Connecticut Supreme Court 2012). . . .

Dzamko v. Dossantos, supra.  

The judge found that, with regard to the first element noted above,

the Revised Complaint sufficiently alleges facts from which it could reasonably be inferred that, at a minimum, Dossantos should have known that emotional distress would be the likely result of his conduct. It is very well known that images transmitted on the internet are not likely to remain private for very long.

All too often, they are retransmitted to the world. Think of the much-publicized issue of `sexting’ images sent by clueless teenagers. These images, once sent to a single, supposedly private source, end up being resent to hundreds, and soon thousands, of other people. Any reasonable person could foretell that eventually someone was going to recognize the person in the images transmitted by Dossantos and draw conclusions that would, in turn, cause that person to suffer emotional distress.

Dzamko v. Dossantos, supra.  

He noted, in passing, that

Dossantos denies that his conduct was extreme and outrageous, but he cannot do that with a straight face. The test is whether `the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim, Outrageous!’ Perez–Dickson v. City of Bridgeport, supra. This is such a case.

Dzamko v. Dossantos, supra.   Dossantos did not “dispute the remaining elements” of this cause of action.  Dzamko v. Dossantos, supra.  

Finally, the judge took up the Ninth Count of the Dzamkos’ Complaint, which alleged a cause of action for intentional infliction of emotional distress upon Sarah Dzamko.  Dzamko v. Dossantos, supra. He noted that this count

alleges intentional infliction of emotional distress as to Sarah. That count alleges that Dossantos' conduct `was carried out with the knowledge that it probably would cause . . . Sarah ... to suffer emotional distress.’

This is not, as Dossantos argues, an allegation of bystander emotional distress, such as that of a witness to an automobile accident. Dossantos' conduct implied that Joseph was a sexual predator. This would naturally reflect on Joseph's spouse and cause her great personal embarrassment and natural concern for her own personal health quite apart from the distress she may have experienced from observing Joseph's own travail.

Under these circumstances, the tort of intentional infliction of emotional distress with respect to Sarah has been adequately pleaded.

Dzamko v. Dossantos, supra.  

The judge therefore denied Dossantos’ motion to strike these counts, leaving them as viable elements in the case. Dzamko v. Dossantos, supra.