The Laptop, Attorney-Client Privilege and Intervening in a Criminal Case

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After he was indicted on one count of conspiracy to commit securities fraud in violation of 15 U.S. Code §§ 78j(b) and 78ff and 18 U.S. Code § 371 and one count of securities fraud in violation of 15 U.S. Code §§ 78j(b) and 78ff, Mathew Martoma filed a motion to compel the government to produce certain evidence to him.  U.S. v. Martoma, 962 F. Supp.2d 602 (U.S. District Court for the Southern District of New York 2013).

To understand the motion, it is necessary to understand something about the factual allegations in the indictment and what has happened so far in the case.  Indictment, U.S. v. Martoma, 2012 WL 7829267. As the opinion explains, the

Indictment alleges that Martoma traded securities on the basis of inside information received from a cooperating witness -- Dr. Gilman. Indictment, U.S. v. Martoma, supra. At the time of the alleged conspiracy, Dr. Gilman was employed by the University of Michigan. . . . The University had provided Dr. Gilman with certain electronic equipment, including a laptop computer, desktop computer, iPhone, iPad, and five external flash drives. . . .

In August 2012, in advance of a proffer session with the Government, Dr. Gilman permitted the FBI to make a forensic image of the hard drive of the laptop computer provided by the University. . . . Before the hard drive was copied, Dr. Gilman's counsel and the Government acknowledged that it contained potential `confidential information.’ . . .  

At some point after [Martoma] was indicted and requested that the Government produce a copy of the imaged hard drive, Dr. Gilman's counsel informed the Government that some of the documents on the hard drive appeared to be privileged. . . .

U.S. v. Martoma, supra.

The opinion also explains that

[i]n November 2012, after Dr. Gilman resigned from the University of Michigan, the University requested that Dr. Gilman return all of the electronic devices that it had issued to him. . . . When he returned the devices to the University, Dr. Gilman asserted that in doing so, `neither [he] nor any other privilege holder waives any applicable privilege(s).’  . .

U.S. v. Martoma, supra.

The next development in the case was that the prosecution

later provided the imaged hard drive to the University for purposes of decryption . . . so that the Government could satisfy its discovery and disclosure obligations to the Defendant. See Federal Rule of Criminal Procedure Rule 16; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v.United States, 405 U.S. 150 (1972).

The University also agreed to search and produce documents from certain other electronic devices that Dr. Gilman had returned to the University. . . . Although the University takes no position regarding Dr. Gilman's assertion of privilege, it has agreed not to produce any potentially privileged documents until the Court resolves the privilege issue. . . . .

U.S. v. Martoma, supra.

That brings us to the issue the judge is dealing with in this opinion:

On June 21, 2013, [Martoma] moved to compel the Government and/or the University to produce the documents withheld on the basis of Dr. Gilman's assertion of attorney-client privilege. . . .  On July 12, 2013, the Government filed an opposition to [his] motion. . . . On July 17, 2013, Dr. Gilman moved to intervene to oppose [Martoma’s] motion, and for a protective order barring the production of the allegedly privileged communications. 

U.S. v. Martoma, supra.

Gilman’s motion to intervene in the criminal prosecution was an unusual move.  As the judge explains in the opinion, the

`Federal Rules of Criminal Procedure make no reference to a motion to intervene in a criminal case.” U.S. v. Aref, 533 F.3d 72 (U.S. Court of Appeals for the 2d Circuit 2008) see also In re New York Times Co., 708 F.Supp. 603 (U.S. District Court for the Southern District of New York 1989) (Federal Rule of Civil Procedure 24, which allows for intervention in civil cases, `has no applicability to criminal cases’).

Nevertheless, `it is settled law that persons affected by the disclosure of allegedly privileged materials may intervene in pending criminal proceedings and seek protective orders. . . .’ U.S. v. RMI Co., 599 F.2d 1183 (U.S. Court of Appeals for the 3d Circuit 1979).

U.S. v. Martoma, supra.

Having found that it was possible for Dr. Gilman to intervene in the criminal prosecution, the judge then addressed whether his request to intervene should be granted.  U.S. v. Martoma, supra.  He noted, first, that the “attorney-client privilege `can be asserted only by the client (or one authorized to do so on the client's behalf).’”  U.S. v. Martoma, supra (quoting In re Sarrio, S.A., 119 F.3d 143 (U.S. Court of Appeals for the 2d Circuit 1997)).

In opposing Dr. Gilman’s motion to intervene, the prosecution argued that

it has standing because it has `a legitimate and compelling interest in acting ethically and consistently with the rules of professional conduct in not releasing to the defendant (or reviewing itself) documents over which a witness has made a non-frivolous claim of privilege.’ (Gov't Brief. 8)

While the Government may have an ethical obligation to bring the privilege issue to the Court's attention, that obligation does not confer standing on the Government to assert privilege on Dr. Gilman's behalf under the circumstances of this case. See U.S. v. Smith, 454 F.3d 707 (U.S. Court of Appeals for the 7th Circuit 2006) (`Although the government did not act inappropriately in bringing the privilege issue to the court's attention, this was not a proper basis for a government objection to the defense questioning of [the witness].’) (emphasis omitted). . . .

U.S. v. Martoma, supra.

The judge then found that the

Government is not authorized to assert Dr. Gilman's privilege merely because he has expressed a desire to preserve the confidentiality of the communications at issue.

Indeed, Dr. Gilman has filed a motion to intervene, stating that `because [he] is the privilege holder, his interests are not adequately represented by the other parties in this matter.’ (Gilman Brief 6)

The Government acknowledges that Dr. Gilman's motion is necessary `to avoid any issue with respect to standing[,] and because Dr. Gilman is in a better position to address the particular arguments advanced by [Martoma].’ (Gov't Brief 8)

Given that Dr. Gilman has moved to intervene to assert his rights, and has not authorized the Government to assert those rights on his behalf, the Government does not have standing to assert Dr. Gilman's privilege here. . . .

U.S. v. Martoma, supra.  In a footnote, the judge notes that the prosecution’s motions and briefs did not cite any cases supporting a contrary result.  U.S. v. Martoma, supra.

He therefore held that a

third-party's reasonable assertion of privilege with respect to documents to be produced in a criminal action is sufficient grounds on which to grant the third-party's motion to intervene and to consider the merits of that party's application. Accordingly, Dr. Gilman's motion to intervene will be granted.

U.S. v. Martoma, supra.  

For the eventual outcome of the Martoma prosecution, check out this news story.

The Password-Protected Phone, Search Incident and Good Faith

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After she was charged with “conspiracy to distribute narcotics in violation of 21 U.S.C. §§ 841(a)(1), 846”, Danielle Goding filed a motion to suppress “and all statements obtained as a result of a vehicle stop on I–87 in New York State.”  U.S. v. Trapp, 2014 WL 1117012 (U.S. District Court for the District of Vermont 2014).  The news story you can find here explains how the case arose.

The judge who has the case did the same thing, in more detail, in this opinion:

On April 23, 2013, at approximately 2 p.m., FBI Special Agent Destito called New York State Police Investigator Law. . . .  Destito told Law he had been conducting an investigation and advised that a taxi carrying a male suspected of drug dealing would be approaching the outlet stores off Exit 20 in Lake George, New York, to meet with another person. . . . Law drove to the outlet stores and contacted New York State Trooper Miller, asking him to look out for a taxi coming from Vermont. . . . Miller . . . called Law back and said such a taxi had just passed him. . . . A few minutes later, Law saw the taxi pull into the outlet stores' parking lot and watched a man get out. . . . Law recognized the man as “Kenny Trapp” because about one month earlier, Law and Miller had `dealt’ with Trapp during a traffic stop of a taxi in which Trapp was a passenger. . . .  

Law watched Trapp exit the taxi carrying `a small little bag . . . almost like a shopping bag.’ . . . He observed Trapp go in and out of various outlet stores [and] then saw a `black livery with New York City style plates’ pull into the parking lot near the Polo outlet store. . . . The town car's front license plate was hanging down. . . . Law watched a black woman with blond hair and a bright blue hat exit the town car.  The woman, later identified as Danielle Goding, walked into the Polo outlet. . . . Trapp also went into the Polo outlet. . . . [and he] and Goding then separately exited the store a few minutes later. . . . Law observed Trapp with what appeared to be a Timberland shopping bag, which he had carried into the Polo outlet, but no longer noticed the `black bag.’  Goding also had bags in her hand as she exited the store. 

At this point, a `Tri County’ taxi pulled into the parking lot. . . . Trapp put his bags in the trunk and got in.  Law called Destito, who asked him to follow Trapp's taxi. Law followed it onto Route 9, Route 149, and then Route 4 into Vermont.  Destito had also given Law Vermont State Trooper Andrew Todd's cell phone number.  Destito had called Todd shortly before 5 p.m. on April 23, 2013, and told him he was working on an `ongoing drug investigation’ and `wanted to coordinate’ Todd with a New York State Trooper `in terms of a vehicle that was coming to Vermont’ after `something that took place in Lake George, New York.’ . . . 

Law called Todd [who]. . . . was sitting in his car just east of the New York state line on Route 4 in Vermont when the taxi drove by. . . . When Law saw Todd's cruiser enter the highway, he made a U-turn and headed back to New York.  Todd observed the taxi make `several violations’ -- speeding, illegal lane change, failure to use directional signals, and tailgating -- before pulling it over. He told the taxi driver about the moving violations and his `general’ concerns about the connection between interstate taxi travel and drug trafficking. . . . The driver then consented to a search of the taxi `as well as his property and person.’

Next, Todd told the passenger, Kenneth Trapp, about the impending vehicle search . . . and asked him to exit the taxi. Trapp complied. Todd informed Trapp that a K–9 unit, which had arrived moments after Todd pulled the taxi over, would also conduct a search.  Todd asked Trapp for consent to search his shopping bags in the trunk, but Trapp refused.  Todd did an initial search of the taxi -- not including Trapp's bags -- and then the. . . . drug dog, Maximus,  hopped inside the taxi to sniff around at the handler's instruction. . . . Maximus `alerted to the presence of narcotics both where Mr. Trapp [had been] sitting and where his property was in the trunk.’ . . .  Based on Maximus' alert, Todd detained Trapp, seized his shopping bags, then applied for and received a warrant to search Trapp's belongings. . . . Todd later uncovered 1,200 bags of heroin in Trapp's bags.

Meanwhile, Trooper Miller had arrived to assist Law in his surveillance at the outlets. . . . After observing Danielle Goding get back into the black town car outside the Polo outlet, Miller followed the car onto Route 9 and then southbound on I–87.  Law. . . had `advised [Miller] to make a car stop . . . if he could’ on the black town car carrying Goding. . . . Law and Miller had observed . . . that [its] front license plate was secured by one screw and was hanging down at an angle. . . . Law also informed Miller, to some extent, of his previous surveillance of Goding and Trapp at the Polo outlet and suspicions of drug activity. . . .

Miller pulled over the black town car based on its unsecured license plate. . . . During his conversation with the driver, Miller smelled burnt marijuana in the vehicle and asked the driver and the female passenger, Goding, to exit the car. . . . Based on the marijuana odor, Miller believed he had probable cause to search the car and its contents. . . . Inside a plastic bag in the backseat, Miller found a watch box containing approximately $14,000 in cash. . . . Goding told Miller the money was hers, she worked as a baker, and she had come up to the outlets to shop. . . . He did not believe this story because she had a Polo outlet job application with her and also wore `very long press-on’ nails that `looked like they just recently had been painted.’ Id. Miller did not find any evidence of marijuana after searching the town car. . . .

U.S. v. Trapp, supra.

The officers took Goding “back to the Queensbury, New York, barracks”, where she was “detained in a locked interview room at the request of Destito, who was en route . . . with Drug Enforcement Agency (`DEA’) Special Agent Thomas Doud.”  U.S. v. Trapp, supra. Destito and Doud arrived “around 9 p.m. and were given Goding's personal belongings, including her cell phone.”  U.S. v. Trapp, supra. The agents

tried to look at her phone, but it was password-protected and Goding declined to give them her password. . . . Goding and Trapp . . . were both transported to Vermont for their appearance in federal court the next day in Burlington. . . .Destito gave Goding's phone to another agent in the Burlington FBI office and, two weeks later, that agent circumvented the password and downloaded the contents of the phone. 

U.S. v. Trapp, supra.

The judge prefaced his analysis of Goding’s arguments in support of suppressing the evidence from her phone by explaining that while the 4^th Amendment’s default standard is that officers must have a search warrant to search a place or thing, under the

automobile exception to the 4th Amendment warrant requirement, police may also conduct a warrantless search of a vehicle if probable cause exists to believe it contains contraband or other evidence of a crime. U.S. v. Gaskin, 364 F.3d 438 (U.S. Courtof Appeals for the 2d Circuit 2004). This may include containers within the vehicle.  California v. Acevedo, 500 U.S. 565 (1991).

Probable cause exists if the facts and circumstances are sufficient to lead a person of reasonable caution to believe evidence of a crime will be found in the place searched.  U.S. v. Gaskin, supra. . . . `[C]ourts recognize that experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman might not.’  U.S. v. Gaskin, supra.  . . .

U.S. v. Trapp, supra.

That brings us back to Goding’s motion to suppress.  She made several arguments in the motion, but the one this post focuses on “challenge[d] the search of her cell phone, which occurred approximately two weeks after her arrest.”  U.S. v. Trapp, supra.  The prosecution “relie[d] on the search incident to arrest exception to the warrant requirement, under which the police may conduct a warrantless search of a lawfully arrested person, her belongings (including containers), and the area within her control.”  U.S. v. Trapp, supra.  In her motion, Goding cited

U.S. v. Wurie, 728 F.3d 1 (U.S. Court of Appeals for the 1st Circuit 2013), in which the First Circuit held that searching a cell phone pursuant to a lawful arrest `exceeds the boundaries of the 4th Amendment search-incident-to-arrest exception.’ . . .  In November 2013, this Court similarly held that `cell phones properly seized pursuant to the search-incident-to-arrest exception or the automobile exception cannot be searched without a warrant.’ U.S. v. Mayo, 2013 WL 5945802, at *13 (U.S. District Court for the District of Vermont 2013). . . . The Supreme Court has granted certiorari to address the issue in Wurie and a similar case, People v. Riley, 2013 WL 475242 (California Court of Appeals 2013), and oral arguments are scheduled for April 29, 2014. 

U.S. v. Trapp, supra.

The judge therefore found that                                  

[f]or substantially the same reasons articulated in Mayo, the Court finds the search incident to arrest exception inapplicable in this circumstance. See U.S. v. Mayo, supra. (concluding `it is simply inappropriate to analogize [modern] cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers.’).

Accordingly, Goding's 4th Amendment rights were violated when the FBI searched her phone, without a warrant, two weeks after her arrest. As in Mayo, however, the Court finds application of the exclusionary rule unwarranted because the FBI acted with a reasonable good-faith belief that a warrant was not required. . . . . Indeed, at the time of the search, `all of the circuits to address the issue had permitted cell phone searches incident to arrest. U.S. v. Mayo, supra. Wurie was not decided until May 17, 2013, and the Second Circuit [Court of Appeals] has not directly addressed the issue. `Law enforcement in this case was acting pursuant to reasonable reading of Supreme Court precedent and a general consensus in other circuits.’ U.S. v. Mayo, supra.  The good-faith exception therefore applies.

U.S. v. Trapp, supra.

As Wikipedia explains, the good faith exception essentially nullifies the need to apply the exclusionary rule, which is how courts enforce the 4^th Amendment.  In other words, the premise is that law enforcement officers investigate, and conduct searches and seizures, to obtain evidence they can use in a prosecution.  The default standard, in terms of a remedy for violations of the 4^th Amendment is the exclusionary rule, which is based on the premises that (i) police violate the 4^th Amendment to get evidence and (ii) if the exclusionary rule bars officers from using evidence obtained in violation of the 4^th Amendment, then this should deter officers from committing such violations. 

But since the exclusionary rule implicitly assumes deliberate conduct, i.e., deliberate violations of the 4^th Amendment, courts have decided there is no need to apply it when officers did not act in bad faith, i.e., did not deliberately violate the 4th Amendment.  Instead, they reasonably assumed that their conduct did not violation the 4^th Amendment.  

So, Goding won on one issue and lost on another.  The judge therefore denied her motion to suppress. U.S. v. Trapp, supra.

Swinging, Interception and Unauthorized Access

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This post examines an opinion a federal judge in Alabama issued in a civil suit:  Michael and Tanya Bruce sued Joshua McDonald, James R. McKoon, Jr., and Melissa B. Thomas and her law firm, asserting interception, disclosure, and use of electronic communications in violation of the Wiretap Act of 1968, as amended, 18 U.S. Code § 2511.”  Bruce v. MacDonald, 2014 WL 931522 (U.S. District Court for the Middle District of Alabama 2014).

In this opinion, the judge is ruling “on the parties various cross-motions for summary judgment”.  Bruce v. MacDonald, supra.  As Wikipedia explains, in U.S. legal practice,

summary judgment can be awarded by the court before 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 disputes of ‘material’ fact requiring a trial to resolve, and
2. in applying the law to the undisputed facts, one party is clearly entitled to judgment.

A party seeking summary judgment (or making any other motion) is called the `moving party’. A `material fact’ is one which, depending upon what the factfinder believes `really happened,’ could lead to judgment in favor of one party, rather than the other.

Sometimes, as in this case, both sides, i.e., the defendants and the plaintiffs move for summary judgment . . . which is what this judge is ruling on.

According to the judge, this is how the suit arose:

At issue in this case is McDonald's access to three electronic accounts: Mrs. Bruce's individual email account hosted by Yahoo.com; second, the joint email account the Bruces shared; and third, a joint account the Bruces shared on a website called `Adult Friend Finder’ (or `AFF’).

McDonald first gained access to Mrs. Bruce's individual Yahoo account. There is some dispute about how, exactly, [he] did so. The record contains evidence that Mrs. Bruce may have logged into her individual account on McDonald's computer and failed to log out; or that McDonald may have observed her enter her password for that account; or that Mrs. Bruce may have given McDonald the login information for that account on one occasion for the limited purpose of printing tickets for a joint activity with their child. In any event, Mr. McDonald has acknowledged he had no permission to read the emails in Mrs. Bruce's individual account, with the possible exception of printing the tickets. . . .

McDonald later also gained access to the joint Yahoo account and the AFF account. He located an email from Mr. Bruce to Mrs. Bruce, in her individual account, which contained their joint AFF login information. He used that information to access private messages in the AFF system (which functions in a similar way as email, but only among AFF users). . . . The record does not clearly indicate how McDonald gained access to the joint Yahoo account. However, that he accessed all three accounts is clear because he printed out hundreds of pages of emails and documents from the three accounts. 

The documents McDonald obtained and printed relate to mostly the Bruces', within their committed relationship, engaging in sexual conduct with other individuals, commonly referred to as `swinging.’ The documents and photos are very sexually explicit. A packet of the documents was anonymously sent to the Alabama Board of Pharmacy and allegedly played a role in adverse action regarding Mrs. Bruce's pharmacist's license. . . . The Bruces believe McDonald sent the packet and also that information about their sexual lifestyle was disclosed to other individuals, including McDonald's co-workers and current wife; the defendants dispute this. It is, however, undisputed that McDonald provided copies of all the documents to his attorney in the child-custody case, Melissa B. Thomas, who is the principal of the Thomas law firm. Thomas, in turn, engaged another attorney, James R. McKoon, Jr., as co-counsel.

The attorneys concluded they could lawfully use that evidence in the custody case. Thomas produced the documents to Mrs. Bruce's counsel in discovery in the state matter. The parties obtained a protective order from the state-court judge governing the use of the documents. Thomas marked and referred to some of the documents as exhibits at Mrs. Bruce's deposition in that case and alluded to the information contained in them in argument to the state judge; she may have also disclosed them to the mediator during the course of mediation. The parties reached a new agreement as to custody. This agreement resulted in increased custody time for McDonald, specific limitations on Mrs. Bruce's sexual activities, and other terms benefitting McDonald.

The Bruces then brought this lawsuit, alleging that McDonald illegally intercepted their electronic communications and that McDonald, McKoon, and Thomas and her law firm illegally disclosed and used those communications. All parties seek summary judgment on all the claims.

Bruce v. MacDonald, supra. 

The judge then outlined the applicable law:

In 1986, Congress amended the Wiretap Act of 1968 to protect electronic communications as well as traditional wire communications (such as telephone calls).As amended by Title I of the Electronic Communications Privacy Act of 1986, Pub.L. No. 99–508, 100 Stat. 1848 (1986), the Wiretap Act now imposes criminal and civil liability on any person who `intentionally intercepts . . . any . . . electronic communication.’ 18 U.S. Code § 2511(1)(a).

The Wiretap Act also imposes liability on any person who `intentionally discloses,’ 18 U.S. Code § 2511(1)(c), or `intentionally uses,’ 18 U.S. Code § 2511(1)(d), the contents of an electronic communication `knowing or having reason to know’ the communication was intercepted in violation the Wiretap Act. Thus, `interception’ is a necessary element for each type of violation.

Bruce v. MacDonald, supra. 

And he explained that the Bruces

have alleged violations of all three sections. In essence, they argue that McDonald `intercepted’ their personal emails and AFF messages by logging into the three accounts without their authorization. The defendants all argue that there has been no interception within the meaning of the Wiretap Act. 

Bruce v. MacDonald, supra. 

As the judge noted, the Wiretap Act

defines `intercept’ broadly, as `the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.’ 18 U.S. Code § 2510(4). However, the [U.S. Court of Appeals for the 11th Circuit] has adopted a `narrow reading’ of `interception’ in the context of electronic communications. U.S. v. Steiger, 318 F.3d 1039, 1050 (11th Cir. 2003).

In Steiger, the appellate court concluded that to constitute an interception, the electronic communications must have been acquired `contemporaneously with their transmission.’ Id. at 1049. See also id. at 1048–49 (`we hold that a contemporaneous interception-i.e., an acquisition during “flight” -- is required to implicate the Wiretap Act with respect to electronic communications’).

Bruce v. MacDonald, supra. 

In the Steiger case, which was a criminal prosecution,

the court rejected a motion to suppress certain documents and information a hacker had obtained without permission from the defendant's computer and subsequently had provided to the police.  Applying the `contemporaneous’ test to those facts, the court found no interception:

 `In this case, there is nothing to suggest that any of the information provided [by the hacker] was obtained through contemporaneous acquisition of electronic communications while in flight. Rather, the evidence shows that the source used a Trojan Horse virus that enabled him to access and download information stored on Steiger's personal computer. This conduct, while possibly tortious, does not constitute an interception of electronic communications in violation of the Wiretap Act.’

Bruce v. MacDonald, supra. 

Here, the Bruces argued that

Steiger is factually distinguishable from the instant case. In this case, they note, McDonald was not accessing files stored on the Bruces' computers, but was repeatedly accessing their web-based email and AFF accounts over an extended period of time. 

Bruce v. MacDonald, supra. 

In making this argument, the Bruces relied on the U.S. Court of Appeals for the 7th Circuit’s decision in U.S. v. Szymuszkiewicz, 622 F.3d 701 (2010).   Bruce v. MacDonald, supra.  In Szymuszkiewicz, the 7^th Circuit upheld the defendant’s

conviction under the `interception’ provision of the Wiretap Act for setting up a process whereby the defendant's supervisor's emails were automatically forwarded to the defendant's email account for an extended period of time. The defendant had argued there was no `interception’ because the forwarding happened only after each email arrived in the supervisor's inbox. The court found, first, that the jury could have concluded, as a factual matter, that this was not so; indeed, the evidence indicated that the email server, rather than the supervisor's computer, duplicated each message. But the court went on to find that even if the supervisor's computer did copy each message, that would not change the outcome of the case:

`Either the server in Kansas City or [the supervisor's] computer made copies of the messages for Szymuszkiewicz within a second of each message's arrival and assembly; if both Szymuszkiewicz and [the supervisor] were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between. That's contemporaneous by any standard.’

Bruce v. MacDonald, supra (quoting U.S. v. Szymuszkiewicz, supra).

The court also noted that the Bruces claimed that because McDonald had access

to the email accounts on a continuous basis, he could have viewed any given message sent or received by those accounts as soon as it hit the inbox (or the sentmail folder). Thus, hypothetically, `if both [Mr. McDonald] and [Mrs. Bruce] were sitting at their computers at the same time, they would have received each message with no more than an eyeblink in between.’  . .

But this argument ignores the critical distinction: in Szymuszkiewicz, the evidence showed each email actually was forwarded to the defendant's account contemporaneously with its transmission. In this case, the Bruces argue that McDonald had access to the accounts and could have accessed some particular email contemporaneously with transmission. But there is no evidence in the record to indicate that he ever actually did so. . . .

Bruce v. MacDonald, supra (emphasis in the original).  

The judge noted that

[t]his is not to say that mere access, without some duplication device, could never amount to interception. If the Bruces could establish that McDonald had actually acquired even one message contemporaneously with its transmission, they might be able to show interception.

That question is not before the court because there is simply no such evidence in this case. `Rather, the evidence indicates that [McDonald] periodically accessed [the] accounts and printed e-mails [and other documents] after they had been delivered.’ Pure Power Boot Camp, 587 F.Supp.2d 548 (U.S. District Court for the Southern District of New York 2008).  That is insufficient to establish an interception.

Bruce v. MacDonald, supra. 

The judge therefore ordered that “summary judgment will be entered in favor of McDonald, AMcKoon, and Thomas and her law firm and against the Bruces.”  Bruce v. MacDonald, supra.  That effectively ends the lawsuit, unless the Bruces appeal the judge’s decision to the 11^th Circuit Court of Appeals . . . and win. 

The Cell Phone, the Text Message and Assault

After he was convicted of second-degree assault in a bench trial, Chad Belleville appealed, “arguing that the State presented insufficient evidence to prove that he acted recklessly.”  State v. Belleville, 2014 WL 521401 (New Hampshire Supreme Court 2014).  As this news story explains, Belleville “received the maximum sentence . . . of 3 to seven years in prison”. 

Belleville was convicted of violating New Hampshire Revised Statutes § 631:2(I)(a), which defines second-degree assault, in part, as “[k]nowing[ly] or reckless[ly] caus[ing] serious bodily injury to another”.  State v. Belleville, supra. More precisely, Belleville was “charged with one count of second degree assault for recklessly causing serious bodily injury to another by `cross[ing] over two sets of double solid lines through a turning lane and into the northbound lane, causing a collision with oncoming motor vehicles.’” State v. Belleville, supra.

The Supreme Court begins its analysis of the issues in the appeal by outlining how the prosecution arose:

[Belleville’s] conviction stems from a motor vehicle accident that seriously injured the child of another motorist, which occurred on December 23, 2010, at approximately 9:15 p.m. on Route 28 near Pittsfield. The section of Route 28 where the accident occurred contains three travel lanes: (1) a northbound travel lane; (2) a median turning lane . . . approximately the width of two lanes and set off from the [Belleville] was driving southbound in a Ford Explorer, a sport utility vehicle (SUV). 

Corey Pickering was driving in the opposite direction, in the northbound lane, followed by a Subaru occupied by Tressa Flanders (Flanders), who was in the front passenger seat, Flanders' husband, who was driving, and their son (the victim) and two daughters, who were in the back seat. Behind the Flanderses' vehicle was a Honda driven by Evan Welch. It was dark and the weather was dry, clear, and cold.

Just before the accident, Pickering observed [Belleveville’s] SUV, traveling in the opposite direction, drifting into the median lane. The SUV came within inches of Pickering's driver's side mirror and Pickering had to swerve his vehicle to avoid being hit. Pickering then saw in his rearview mirror that the SUV hit the Flanderses' Subaru.

Prior to the collision, Flanders saw headlights from an oncoming vehicle and yelled to her husband to `watch out.’ Her husband tried to swerve to avoid being hit, but the oncoming vehicle hit the driver's side of their car. Welch saw the Subaru `fishtail[ ] really suddenly’ and saw its back end `explode into a lot of pieces.’ He then saw `headlights coming straight at [him]’ and within a couple of seconds, the SUV hit his vehicle. Welch skidded into the passenger side of the Subaru and both vehicles came to a stop on the side of the road. The SUV `traveled across a small field’ and came to rest alongside the road.

Immediately after the collision, Flanders `saw a gaping hole’ in the back of the Subaru on the driver's side and noticed her son was no longer in the vehicle. She climbed out of the vehicle, made sure her daughters and her husband were not seriously injured, and then looked for her son. She located him lying `in a cradled position.’ As a result of the accident, her son sustained a traumatic brain injury, loss of `his left eye socket,’ and dislocation and fracture of his jawbone.

State v. Belleville, supra.

The court also outlined the investigation that resulted in Belleville’s being charged:

When Sergeant Matthew Shapiro of the New Hampshire State Police arrived at the scene, he asked [Belleville] whether he had made any telephone calls `either just prior to the collision or just after the collision.’ [Belleville] told Shapiro that he had telephoned his girlfriend after the collision to tell her what had happened. 

Shapiro asked to look at [his] cellular telephone to ascertain what time that call had been made. [Belleville] showed Shapiro his call history and Shapiro noticed that no calls were shown as having been made before the accident. Shapiro testified that he asked [Belleville] about the history of calls that had occurred prior to the collision and [Belleville] told him he thought he had `erased the history or something.’

Shortly thereafter, Sergeant David Scott McCormack of the New Hampshire State Police arrived. . . . He spoke with [Belleville], who told him he could not recall what had happened. Approximately eight months later, on August 7, 2011, McCormack again spoke with [Belleville]. During their conversation, [Belleville] admitted that, at the time of the accident, he was checking a text message. He stated that he did not see the Subaru and that, `I just looked down and the next thing you know I crashed.’

State v. Belleville, supra.

Finally, the court notes that McCormack” and “other law enforcement officers” conducted

reconstruction analysis and a post-collision inspection of [Belleville’s] Ford Explorer. It was determined there was no mechanical problem with the vehicle that would have led to the collision. Furthermore, . . . McCormack opined that the cause of the collision was that [Belleville] was traveling `southbound on Route 28 in a Ford Explorer when he crossed two sets of double yellow lines and struck the Flanderses' vehicle and the Welch vehicle that were operating within their lane northbound.’ He noted there was no evidence [Belleville] had either braked or taken any evasive action to avoid the vehicles prior to the collision.

State v. Belleville, supra.

As to how Belleville came to be convicted, the opinion explains that the

accident occurred at approximately 9:15 p.m. At trial, the State introduced the records of [Belleville’s] cellular telephone activity from 8:50 p.m. to 9:25 p.m. The records disclosed that [he] received at least two text messages between 8:51 p.m. and 9:04 p.m. They also established that [Belleville] made and [Belleville’s] admission that, at the time of the accident, he was checking a text message.

State v. Belleville, supra (emphasis in the original).

As noted above, the judge convicted Belleville and he appealed. State v. Belleville, supra.  On appeal, he claimed “the evidence was insufficient to prove that he acted recklessly.”   State v. Belleville, supra.  The court began its analysis of his argument by noting that to succeed in challenging the

sufficiency of the evidence, the defendant must prove that no rational trier of fact, viewing all of the evidence and all reasonable inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt. State v. Shepard, 158 N.H. 743, 973 A.2d 318 (New Hampshire Supreme Court 2009).  `Because persons rarely explain to others the inner workings of their minds or mental processes, a culpable mental state must, in most cases[,] be proven by circumstantial evidence.’ State v. Tayag, 159 N.H. 21, 977 A.2d 510 (New Hampshire Supreme Court 2009) (quotation and ellipsis omitted).

When the evidence as to one or more of the elements of the charged offense is solely circumstantial, it must exclude all reasonable conclusions except guilt. State v. Germain, 79 A.3d 1025 (New Hampshire Supreme Court 2013).  Under this standard, however, we still consider the evidence in the light most favorable to the State and examine each evidentiary item in context, not in isolation. State v. Shepard, supra.

State v. Belleville, supra. 

The court then noted that to have convicted Belleville “of second degree assault, the State was required to prove, beyond a reasonable doubt, that [he] `recklessly cause[d] serious bodily injury to another.’” State v. Belleville, supra (quoting New Hampshire Revised Statutes § 631:2(I)(a)).  It also explained that under New Hampshire Revised Statutes § 626:2(II)(c), someone

`acts recklessly with respect to a material element of an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the circumstances known to him, its disregard constitutes a gross deviation from the conduct that a law-abiding person would observe in the situation.’

State v. Belleville, supra. 

The court then noted that assessing

criminal recklessness -- that is, whether a defendant was aware of the risk of serious bodily injury resulting from his actions, consciously disregarded the risk, and had knowledge of circumstances that made disregarding the risk a `gross deviation’ from law-abiding conduct -- involves comparing the defendant's conduct with that of a law-abiding person. See State v. Evans, 134 N.H. 378, 594 A.2d 154 (New Hampshire Supreme Court 1991) . . . .

As the comment to the Model Penal Code section defining recklessness explains, when assessing recklessness, the fact-finder should `measure the substantiality and unjustifiability of the risk by asking whether its disregard, given the actor's perceptions, involved a gross deviation from the standard of conduct that a law-abiding person in the actor's situation would observe.’ Model Penal Code § 2.02 cmt. 3, at 237; see State v. Donohue, 150 N.H. 180, 834 A.2d 253 (2003)(our Criminal Code is largely derived from the Model Penal Code . . .).

State v. Belleville, supra. 

The court outlined one more relevant standard before addressing the substance of Belleville’s argument on appeal:

Whether a defendant acted recklessly does not depend upon the actual harm resulting from his conduct. State v. Hull, 149 N.H. 706, 827 A.2d 1001 (New Hampshire Supreme Court 2003). Nor does it depend upon whether the defendant anticipated the precise risk or injury that resulted. State v. Hull, supra.  Such an assessment may include an examination of the `surrounding facts and circumstances from which such awareness may be inferred.’ State v. Hull, supra.   

Here, the court could have considered [Belleville’s] conduct before and after the accident, including his admission that he was reading a text message at the time of the accident, and soon thereafter erased his telephone's call history. See State v. Hull, supra.   

State v. Belleville, supra. 

The Supreme Court then applied these standards to this case:

Viewing all of the evidence in the light most favorable to the State, we cannot say that no rational trier of fact could have found it sufficient to establish that [Belleville] acted recklessly. [He] admitted he looked down to check a text message on his cellular telephone while driving and stated, `the next thing you know I crashed.’

During the time he spent looking down at a text message, rather than paying attention to the road, [Belleville] drove across the median, which was approximately the width of two lanes and set off from the travel lanes by two sets of solid double yellow lines, and entered into the opposite lane of traffic. A rational trier of fact could have concluded that the risk that another driver would suffer serious injury in this situation was `substantial and unjustifiable.’ . . .  

Moreover, a rational trier of fact could have found that looking down to check a text message for the length of time it took to cross over the median, enter into the oncoming travel lane, nearly hit one vehicle, and hit two others, without braking or attempting to evade collision, was a gross deviation from the conduct of a law-abiding citizen, because a law-abiding citizen would not have voluntarily remained inattentive for such an appreciable length of time over such a distance. . . .

Likewise, a rational trier of fact could have concluded that [Belleville] was aware of the risk that looking down to check a text message while driving could cause an accident, and that he chose to disregard that risk. Finally, although not dispositive, a rational trier of fact could have considered [his] subsequent conduct of erasing the call history on his telephone as demonstrative of his awareness that diverting his attention from the road and to his telephone while driving risked causing an accident. . . .

State v. Belleville, supra. 

The court concluded by explaining that this

was more than a case of momentary inattention, such as might be caused by changing a radio station or sneezing. . . . Here, [Belleville] chose to divert his attention from the road to check a text message and remained so inattentive that he failed to notice he crossed nearly three lanes of traffic and entered into the opposite lane in the face of oncoming traffic.

Under these circumstances, we cannot say that a reasonable trier of fact, viewing the evidence and all reasonable inferences from it in the light most favorable to the State, could not have found that [Belleville] acted recklessly.

State v. Belleville, supra. 

It therefore affirmed his conviction.  State v. Belleville, supra.  The news story you can find here provides a photo of Belleville and a little more information about what happened to the family he hit.