The Fourth Amendment, File-sharing and Sexual Exploitation of a Minor

After Rick Welsh was convicted of, and sentenced for, “five counts of sexual exploitation of a minor under the age of fifteen” in violation of Arizona law, he appealed.  State v. Welch, 2014 WL 6092867 (Court of Appeals of Arizona 2014).  On appeal, he argued, among other things, that “the trial court erred by denying his motion to suppress evidence obtained from his computer without a warrant, claiming its acquisition violated his rights” under the 4^th Amendment to the U.S. Constitution.  State v. Welch, supra.  

As the Court of Appeals noted, the case arose after, in December of 2010,

Tucson Police Department Detectives Dan Barry and Steve Sussen, as part of a police training seminar, found `files of interest’—images or videos potentially related to child pornography—while browsing a shared computer network to which Welch belonged. They obtained a search warrant and seized Welch's computer, modem, external hard drive, cell phone, and computer discs (CDs). The seized items contained graphic images of child pornography.

Welch was indicted on twenty counts of sexual exploitation of a minor under the age of fifteen, all class two felonies. . . . Following a six-day trial, a jury convicted Welch of five of the counts and determined the state had proved beyond a reasonable doubt that the offenses were dangerous crimes against children. The trial court sentenced him to consecutive, minimum prison terms of ten years for each count.

State v. Welch, supra.  

Prior to trial, the trial judge held a hearing on Welch’s motion to suppress, at which

Sussen testified that he and Barry had detected files on Welch's computer while being trained to conduct investigations into possible child pornography. As part of their training, the detectives browsed peer-to-peer file sharing networks, where people on the network could request, access, and share files through direct connections to other computers connected to the network.

Using the images' secure hash algorithm values, or `SHA values,’ which are essentially `digital fingerprint[s]’ for each image, the detectives learned that Welch's file list—holding over a thousand files—contained eleven `files of interest,’ meaning they were `associated with child pornography.’

After serving a search warrant or subpoena on the internet provider, the detectives determined the internet protocol (IP) address for the computer containing the files was associated with Welch's residence.

State v. Welch, supra.  

At that same hearing, Welch claimed

that the officers had conducted a warrantless search into his computer—to which Welch had a `reasonable expectation of privacy’—and `used what they found to get the search warrant in this case,’ which is a “transparent violation of the 4^th Amendment.’ He characterized the initial investigation as an `electronic intrusion into his house by the police without a warrant’ and stated the electronic search was equivalent to physically entering his personal computer to obtain the files.

But, in response to the court's question of whether a peer-to-peer network `kind of puts it out there for anybody that wants to see it,’ Welch responded in the affirmative. The court denied Welch's motion to suppress the files, stating that had waived his expectation of privacy by using `a shared file index that anybody could access.’

State v. Welch, supra.  In Katz v. U.S., 389 U.S.347 (1967), the U.S. Supreme Court held that a “search” occurs under the 4^th Amendment when officers violate someone’s “reasonable expectation of privacy” in a place or thing.

In his appeal, Welch argued that

`”browsing files” on a person's computer contained within[ ] the four walls of their home requires a warrant.’ He further insists that because he `had set his computer so others could not download files from his computer’ and `his identity and that of his computer and it[s] location was not disclosed to the public,’ he had a reasonable expectation of privacy in its contents.

The detectives, he urges, `should have sought and obtained a warrant prior to ‘browsing [his] files' and using that information to obtain a search warrant. Welch argues that the `warrantless intrusion into [his] computer violated the 4th [Amendment].’

State v. Welch, supra.  

The issue in the case was whether “Welch had a reasonable expectation of privacy in his shared computer files.”  State v. Welch, supra.  It noted that in U.S. v. Ganoe, 538 F.3d 1117 (U.S. Court of Appeals for the 9^th Circuit 2008),

the court determined the defendant lacked a reasonable expectation of privacy in the downloaded files stored on his computer via file-sharing software. Like Welch, Ganoe argued that police had conducted an illegal, warrantless search of his computer by using his file sharing program to access child pornography files on his computer. U.S. v. Ganoe, supra.

The court held that although an individual generally has `an objectively reasonable expectation of privacy in his personal computer,’ it did not agree that this `expectation can survive Ganoe's decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.’ U.S. v. Ganoe, supra.

Because Ganoe knew he had file sharing software on his computer, and knew his files would be shared with other users of the peer-to-peer network, he had `failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable” and therefore could not invoke 4^th Amendment protections.’ U.S. v. Ganoe, supra.

State v. Welch, supra.  

The Arizona Court of Appeals found

this reasoning applicable here. Sussen testified that to detect the files of interest on the shared network, network users merely had to conduct a key-word search to find a list of potential hosts for a file and then connect directly to that computer to view the file. He stated the files on Welch's computer were available to `[p]otentially anyone using his network’ and that he `simply looked at that folder’ to get a `list of his files.’

When asked whether `a random member of the public searching on the [peer-to-peer] network on the same date and time’ could have viewed Welch's shared folders, Sussen replied, `That potential is there, yes, if they search for that file name.’ Sussen further testified that peer-to-peer network users are informed of

`the number of times [they will] be sharing this folder. So it's not a surprise when you have a shared folder and sharing files. And whatever is in that share[d] folder is visible to anyone on the ... network. So if you're looking for a particular key word, and you have a file that matches that, it can show up to anybody out there.’

Sussen thus testified Welch necessarily was aware of the file sharing software on his computer and knew that others on the network would be able to view his files.

We therefore conclude that Welch, by knowingly using a file sharing network, maintained no reasonable expectation of privacy in the files accessible on that network. The trial court did not err by denying his motion to suppress evidence obtained from his computer pursuant to the search warrant.

State v. Welch, supra.  

Welch also argued, on appeal, that his sentence

of fifty years' imprisonment was `clearly excessive’ and in violation of the 8th Amendment's ban on cruel and unusual punishment. Welch was sentenced pursuant to Arizona Revised Statues § 13–705, which prescribes sentences for defendants convicted of committing dangerous crimes against children. Subsection (P)(1)(g) of that section lists `[s]exual exploitation of a minor’ as a dangerous crime against children.

A person convicted of a dangerous crime against children involving sexual exploitation of a minor must be sentenced to a minimum term of ten years' imprisonment. § 13–705(D). A sentence imposed pursuant to § 13–705(D) for a dangerous crime against children in the first or second degree `shall be consecutive to any other sentence imposed on the person at any time, including child molestation.’ § 13–705(M).

State v. Welch, supra.  

The Court of Appeals found that

[b]ecause Welch was convicted of five counts of sexual exploitation of a minor, which are dangerous crimes against children, he was sentenced to the minimum term of fifty years' imprisonment. Welch urges this sentence `established an inference of gross disproportionality’ and—`in the event his convictions are not reversed’—urges us to reduce his sentence or, in the alternative, vacate his sentence and remand the case for resentencing. `We will not disturb a sentence that is within the statutory range absent an abuse of the trial court's discretion.’ State v. Joyner, 215 Ariz. 134, 158 P.3d 263 (Arizona Court of Appeals 2007). We review de novo whether a sentence constitutes cruel and unusual punishment. State v. Kasic, 228 Ariz. 228, 265 P.3d 410 (Arizona Court of Appeals 2011)

State v. Welch, supra.           

As the court explained, the 8th Amendment to the U.S. Constitution

prohibits `cruel and unusual punishments.’ In a noncapital setting, this `includes not only punishment that historically has been considered barbaric, but also sentences that are grossly disproportionate to the crime committed.' State v. Kasic, supra, citing Solem v. Helm, 463 U.S. 277 (1983). When considering whether a sentence is excessive, a court “first determines if there is a threshold showing of gross disproportionality by comparing “`the gravity of the offense [and] the harshness of the penalty.’” State v. Berger, 212 Ariz. 473, 134 P.3d 378 (Arizona Supreme Court 2006), quoting Ewing v. California, 538 U.S. 11 (2003). . . . `If this comparison leads to an inference of gross disproportionality, [we] then test[ ] that inference by considering the sentences the state imposes on other crimes and the sentences other states impose for the same crime.’ State v. Berger, supra.

State v. Welch, supra.  

The Court of Appeals then applied these standards to the fact in this case, noting that

[a]s Welch acknowledges, our supreme court previously has addressed whether the mandatory sentences for those convicted of sexual exploitation of a minor violate the 8th Amendment's ban on the infliction of cruel and unusual punishments. In Berger, the defendant was convicted of twenty counts of sexual exploitation of a minor under the age of fifteen. State v. Berger, supra. The trial court sentenced him to a ten-year prison term, the minimum sentence, for each of the twenty counts, totaling 200 years' imprisonment. State v. Berger, supra.

Applying the two-part framework enumerated above, our supreme court upheld the sentences, finding that a ten-year prison term is not grossly disproportionate to the offense. . . . In doing so, the court noted that the 8th Amendment analysis focuses on the sentence for each offense individually and not on the cumulative sentence for all the offenses. . . . The court concluded that twenty consecutive ten-year sentences imposed on a defendant found guilty of twenty counts of sexual exploitation of a minor was not grossly disproportionate to the crimes and thus did not violate the 8th Amendment. . . .

State v. Welch, supra.  

It therefore held that “[b]ecause we are bound by the decisions of our supreme court, we conclude Welch's sentences were not `clearly excessive’ in violation of the ban on cruel and unusual punishment.”  State v. Welch, supra.  

Kidnapping, the Mistrial and Juror Misconduct

This post examines a recent opinion from the Supreme Court of Arkansas:  State v. Riley, 2014 WL 5494168 (2014).  The court begins its opinion by explaining that the State of Arkansas, which prosecuted Quinton Riley for kidnapping, was appealing “the circuit court's grant of appellee Quinton Riley's motion for a new trial based on juror misconduct.”  State v. Riley, supra. 

As the Supreme Court noted, the “State argues on appeal that the circuit court abused its discretion in granting a new trial and asserts that jurisdiction is proper pursuant to [Arkansas Rule of Appellate Procedure –Criminal] 3(b) and (c) (2014).”  State v. Riley, supra. 

The Supreme Court then explained what, exactly, happened in the Circuit Court:

After a two-day jury trial held on December 11–12, 2013, Riley was convicted of kidnapping and sentenced as a habitual offender to life imprisonment. On December 16, 2013, Riley filed a motion for new trial based on juror misconduct.

He alleged that Juror # 1, Brittany Lewis, had used her cell phone to post on Facebook during jury deliberations in violation of the circuit court's instructions to the jury that they were prohibited from doing so. Riley claimed that he became aware of Lewis's posts after the trial had already concluded.  He asserted that he had been prejudiced by Lewis's failure to follow the circuit court's instructions and argued that Lewis's conduct violated his right to due process and prohibited him from having a fair and impartial jury.

Riley attached to his motion the Facebook posts made by Lewis.

State v. Riley, supra. 

The Supreme Court explains that the trial judge then held a hearing

on the motion for new trial on January 6, 2014. At the hearing, Lewis admitted that she had made several Facebook posts during the course of Riley's trial. At 5:18 p.m. on the first day of trial, during a recess, Lewis posted, `Still in this Court Room. Lord, I'm ready to go home. I'm sleepy and tired, and my red wine is calling my name.’

Then, at 7:02 p.m. that same evening, after the jury had begun deliberating, Lewis posted `Droooovvee. We can't come to a decision. Ugh FML.’ Lewis's next post came at 11:07 p.m. after the jury had been released for the evening.

She stated, `Got home at 9:30 after leaving jury duty at 8:40. I'm just now eating my dinner while I'm irritated as hell. I probably won't be able to sleep tonight after hearing testimonies and seeing horrible pictures and I gotta do it all over again tomorrow. Nite nite. “grabs wine while wishing I had vodka”[.]’

The next morning, on December 12, 2013, Lewis posted at 8:34 a.m., `Good morning. Got jury duty again this morning, and hopefully we won't be there until 8:40 p.m. like last night. Ain't nobody got time for that.’

Lewis testified that all of her posts were made during breaks in the trial. She admitted that her post at 7:02 p.m. on December 11 was made during jury deliberations; however, she claimed that she had taken a restroom break at the time. The [Circuit Court Judge] noted in this regard that the restroom was inside the jury room and that no juror had left the room during deliberations.

State v. Riley, supra. 

After the hearing, the Circuit Court Judge

entered an order on January 10, 2014, granting Riley's motion for new trial. The court found that the jury had been repeatedly instructed throughout the trial not to discuss the case with anyone and that they had also been specifically instructed in accordance with AMCI 101(g) not to use cell phones or other communication devices for any purpose while in the jury room during deliberations.

The circuit court cited to this court's decision in Dimas–Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011), in which we held that the defendant was prejudiced by a juror's posts on Twitter during the trial because this demonstrated that the juror had failed to follow the trial court's instructions. Although the circuit court noted that there were some differences in Lewis's conduct and that of the juror in Dimas–Martinez, the court found that these differences were not sufficient to distinguish that case from the present one.

The circuit court found that by posting to Facebook, Lewis had disregarded and violated the court's clear orders. The court stated that Lewis's conduct was even more egregious because one of her posts was made while she was supposed to be deliberating.

The court found that all jurors are presumed to be unbiased in following the court's instructions but that Lewis's conduct had overcome that presumption. Based on its conclusion that Riley had not received a fair trial, the circuit court ordered a new trial. 

State v. Riley, supra. 

The Supreme Court then explained that

[a]s a preliminary matter, this court must first decide if it has jurisdiction to hear the State's appeal in this case. We will not consider an appeal by the State unless the correct and uniform administration of the criminal law requires review by this court. Ark. R.App. P.-Crim. 3(d). In practice, we review only State appeals that are narrow in scope and involve the interpretation of law. State v. Jenkins, 2011 Ark. 2, 2011 WL 143571 (Arkansas Supreme Court 2011)

State appeals that merely demonstrate that the circuit court erred are not permitted. State v. Jenkins, supra. Furthermore, we will not accept an appeal by the State where the circuit court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even on a mixed question of law and fact, as those appeals do not require an interpretation of our criminal rules with widespread ramifications. State v. Jenkins, supra.

State v. Riley, supra. 

The Supreme Court went on to explain that, in this case, the prosecution

argues that the circuit court clearly erred in finding juror misconduct because Lewis did not violate the court's instructions by her Facebook posts. The State contends that Lewis's posts were not musings, thoughts, or comments about the facts of the case, which are improper pursuant to Dimas–Martinez v. State, supra, and that the circuit court in this case did not prohibit the jurors from making any social-media posts at all.

In addition, the State argues that, even if Lewis's posts violated the circuit court's instructions, the circuit court erred by finding that Riley was prejudiced by the violations. The State asserts that Dimas–Martinez v. State, supra is factually distinguishable and that the circuit court abused its discretion in extending that decision to the facts in this case.

State v. Riley, supra. 

The Supreme Court went on to note that “Riley argues that this court does not have jurisdiction of this appeal under Ark. R.App. P.-Crim. 3 and that it must therefore be dismissed”, and the court agreed. State v. Riley, supra. 

The Supreme Court explained that the

State's sole argument on appeal is that the circuit court abused its discretion in granting Riley's motion for new trial. In support of its argument, the State contends that the circuit court clearly erred in finding that Lewis violated the court's instructions to the jury and also that the court erred in finding that Riley was prejudiced by these violations.

Both of these are factually intensive inquiries. The issue of whether Lewis violated the circuit court's instructions by her Facebook posts is based on the unique facts of this case, as is the issue of prejudice. While the State attempts to frame its argument as one of law by contending that the circuit court erred by extending the holding in Dimas–Martinez v. State, supra, this issue is one that involves the correct application of the law to the facts in this case.

This is demonstrated by the State's assertion that Dimas–Martinez v. State, supra, is `factually distinct’ from the present case. We do not accept State appeals that raise the issue of an application of the law to the facts of the case, as we have held that this does not involve the correct and uniform administration of the criminal law. . . .

State v. Riley, supra. 

The Supreme Court went on to explain that the prosecution in this case

cites State v. Cherry, 341 Ark. 924, 20 S.W.3d 354 (Arkansas Supreme Court 2000), and State v. Osborn, 337 Ark. 172, 988 S.W.2d 485 (Arkansas Supreme Court 1999), both cases involving juror misconduct, in support of its contention that we have jurisdiction of this appeal pursuant to Ark. R.App. P.-Crim 3.

However, both of these cases are distinguishable from the present case. Although we did not specifically discuss the issue of jurisdiction in State v. Cherry, supra, we did state that the appeal was extraordinary,’ as it involved a novel situation of juror misconduct. State v. Cherry, supra. 

Also, in State v. Osborn, the appeal involved a question of law, which was whether the circuit court's decision violated [Arkansas Rules of Evidence 606(b)]. We held that this issue was one where the correct and uniform administration of the law required our review. State v. Osborn, supra.

State v. Riley, supra. 

The Supreme Court therefore held that the

State has failed to establish that this court has jurisdiction of this appeal under Ark. R.App. P.-Crim. 3, as it turns on whether the circuit court's findings are supported by the unique facts in this case, and it does not involve the correct and uniform administration of the law. Therefore, we dismiss the appeal.

State v. Riley, supra. 

If you would like to read more about the facts in the case, check out the news story you can find here.  And the article you can find here talks about the implications of the court’s ruling, and of the juror’s conduct, for future trials.

The FBI, the Protected Computer and Coram Nobis

On December 1, 2008, the U.S. Department of Justice filed an information, alleging that 

on five occasions between January 19, 2007 and July 5, 2007, [Mark Thomas Rossini] `intentionally and knowingly exceeded his authorized access to a protected computer belonging to the Federal Bureau of Investigation, an agency of the United States headquartered in the District of Columbia, and by such act obtained information from the Federal Bureau of Investigation that he was not permitted to receive,’ in violation of Title 18 of the U.S. Code § 1030(a)(2)(B), the Computer Fraud and Abuse Act. . . . On December 8, 2008, [Rossini] entered a guilty plea as to all charges in the information.

Rossini v. U.S., 2014 WL 5280531 (U.S. District Court for the District of Columbia 2014).

In pleading guilty, Rossini

conceded that the following facts were true:

`Between January 3, 2007 and July 30, 2007, the defendant made over 40 searches of the ACS for FBI information that were for purely personal purposes, and not connected to FBI business. Each of these searches exceeded the defendant's authorized use of the ACS system, and were [sic] not part of any of his assigned work. As part of these searches, the defendant obtained information to which he was not entitled.’

Rossini v. U.S., supra.  The ACS was the FBI’s Automated Case Support System; as this press release explains, in 2013 the FBI replaced the “paper-based” ACS System with a new digital system.  If you would like to know more about the facts involved in this prosecution, check out the news stories you can find here and here.  The story you can find here says Rossini "passed" an FBI document to "actress Linda Fiorentino "to help the defense lawyers for rogue detective Anthony Pellicano". 

On May 14, 2009, Rossini was sentenced to

1) twelve months of probation for each of the five counts, to run concurrently; 2) a special assessment fee of $125; 3) a fine of $5,000 to be paid at a monthly rate of $250; and 4) 250 hours of community service. . . . Since judgment was imposed, [he] completed payment on the Court-imposed fines, his supervised release was terminated, and he completed his community service. U.S. v Rossini, supra.  

And in June of 2014, he filed a Motion for Writ of Error Coram Nobis.  Docket, U.S. v. Rossini, Case No. 1:08-MJ-00692.  As the District Court Judge in this case explained,

`[t]he writ of coram nobis is an ancient common-law remedy designed “to correct errors of fact.”’ U.S.v. Denedo, 556 U.S. 904 (2009) (quoting U.S. v. Morgan, 346 U.S. 502 (1954)). Originally, the writ was intended as a means of correcting `technical errors.’ U.S. v. Denedo, supra.

Today it is used to correct `fundamental errors,’ when no other remedy is available. U.S. v. Denedo, supra. Thus, `coram nobis . . . may collaterally attack only constitutional or jurisdictional errors or serious defects in the trial either not correctible on direct appeal or where exceptional circumstances justify the failure to appeal on those grounds.’ U.S. v. McCord, 509 F.2d 334 (U.S. Court of Appeals for the D.C. Circuit 1974).

Rossini v. U.S., supra.  

He went on to explain that in his opinion in U.S. v. Williams, 630 F.Supp.2d 28 (U.S. District Court for the District of Columbia 2009),

Judge Hogan indicated that `the D.C. Circuit's precedent in this area is thin.’ . . . He pointed to the leading case, U.S. v. Hansen, 906 F.Supp. 688 (U.S. District Court for the District of Columbia 1990), in which Judge Joyce Hens Green . . ., in the absence of D.C. Circuit authority for analyzing a petition for a writ of error coram nobis, looked to the practice of the 3rd, 4th, 9th and 10th Circuits. U.S. v. Hansen, supra.

Under their precedents, relief by writ of coram nobis was only available when: `(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. U.S. District Court for the District of Columbia. Accord U.S. v. Akinsade, 686 F.3d 248 (U.S. Court of Appeals for the 4^th Circuit 2012); Klein v. U.S., 880 F.2d 250, 254 (U.S. Court of Appeals for the 10th Circuit 1989); Hirabayashi v. U.S., 828 F.2d 591, 604 (U.S.Court of Appeals for the 9th Circuit 1987).

Rossini v. U.S., supra.  This judge decided he would “follow Judge Hogan's and Judge Green's lead and apply those factors.”  Rossini v. U.S., supra.  

He therefore began his analysis with the first factor, i.e., whether a “more usual remedy” was available.  Rossini v. U.S., supra.  The judge noted that both Rossini and the

government agree that because [he] waived his right to an appeal when he accepted the plea agreement, and because he has now completed the various elements of his sentence, the more usual remedies of either a direct appeal or a motion for habeas corpus relief pursuant to 28 U.S. Code § 2255 . . . are not available. . . . . Thus [Rossini] has satisfied the first of the coram nobis requirements.

Rossini v. U.S., supra.  

Next, the judge took up the second issue – valid reasons for not attacking his conviction sooner.  Rossini v. U.S., supra.  Rossini’s argued that he did not do so because there

was a change in the law governing his conviction. . . . [He] claims it was not until this Court issued its decision in Lewis–Burke Assocs., LLC v. Widder, 725 F. Supp. 2d 187 (U.S. District Court for the District of Columbia 2010) and the 9th Circuit issued its decision in U.S. v. Nosal, 642 F.3d 781 (U.S. Court of Appeals for the 9th Circuit 2011), that he became aware he had grounds to file a petition for a writ of coram nobis.

Rossini v. U.S., supra.  

The judge went on to explain that Rossini’s argument was “flawed” because

both the Widder and Nosal decisions adopted the 9th Circuit's reasoning in LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (U.S. Court of Appeals for the 9th Circuit 2009), . . . issued in 2009, well before [his] current filing, which occurred five years later on June 6, 2014. . . .The government also argues that [Rossini] could have based his argument on the reasoning in Shamrock Foods Co. v. Gast, 535 F. Supp.2d 962 (U.S. District Court for the District of Arizona 2008), . . . in which the court ruled on the application of the [Computer Fraud and Abuse Act] to conduct similar to that at issue in this case. . . . The government's arguments are persuasive because there was authority in existence well before [he] filed his current petition . . . which could have supported the argument he makes now.

Rossini v. U.S., supra.  

The District Court Judge then went on to explain that “even” if this court’s decision

in Widder had been deemed to apply retroactively, which it was not, [Rossini] still lacked a valid reason for not attacking his conviction earlier because the argument he now advances has in fact previously been successfully asserted, albeit not in this circuit. On February 20, 2008, the District Court for the District of Arizona issued its decision in Shamrock. In that case, a civil action, the court unequivocally held that `[t]he general purpose of the [Computer Fraud and Abuse Act] ‘was to create a cause of action against computer hackers (e.g., electronic trespassers).’

To that end, the court concluded the following with respect to sections 1030(a)(2) and section (4) of the Computer Fraud and Abuse Act:

`Given the plain language, legislative history, and principles of statutory construction, the restrictive view of authorization is adopted. [A] violation for accessing without authorization occurs only where initial access is not permitted. And a violation for exceeding authorized access occurs where initial access is permitted but the access of certain information is not permitted.’

Shamrock Foods Co. v. Gast, supra. . . .

Less than two years later, . . . the [U.S. Court of Appeals for the 9^th Circuit] issued its decision in LVRC Holdings LLC v. Brekka, supra. In that case, a company sued a former employee for violating sections 1030(a)(2) and (4) of the [Computer Fraud and Abuse Act] by accessing its computer without authorization and in excess of authorizations. First, the court noted that `an employer gives an employee “authorization” to access a company computer when the employer gives the employee permission to use it.’ LVRC Holdings LLC v. Brekka, supra. 

Thus, the court concluded that because the company gave the employee permission to access its computer, he did not act `without authorization’ when he acted for purposes contrary to the company's interest, both while employed by the company and then after he left the company. LVRC Holdings LLC v. Brekka, supra. For the same reason, the court also concluded that the employee did not `exceed authorization.’ LVRC Holdings LLC v. Brekka, supra. . . . The court clearly stated therefore that an individual violates the above two sections of the Computer Fraud and Abuse Act by accessing data for which he lacks authorization, not for using data that he is authorized to access for purposes contrary to the company's interest.

Finally, on July 28, 2010, this Court issued its decision in Lewis–Burke Assocs., LLC v. Widder, supra. . . . [T]he issue . . . was whether an employee violated the Computer Fraud and Abuse Act by taking confidential and proprietary computer data with him when he left the company where he used to work, in violation of [18 U.S. Code § 1030(a)(2)]. . . .[T]his Court also noted that the primary purpose of the Computer Fraud and Abuse Act was to deter computer hacking. . .Then, following the Brekka line of cases, this Court noted that when an employer gives an employee permission to use its computer system, it is giving that employee authorization to access the data contained therein. . . . [T]his Court concluded that `[w]hether [an employee] had permission to copy documents onto his thumb drive or to subsequently use the data from a non-[work] computer, after he had left its employ, is not a question that relates to his liability under the Computer Fraud and Abuse Act’.” 

[T]he information against [Rossini] was filed on December 1, 2008, almost ten months after the . . .Shamrock decision was issued. Understandably, even if [he] had been aware of the Shamrock opinion, he may not have felt compelled to base his motion for a writ of coram nobis upon the authority of a case from the District Court for the District of Arizona.

However, when the 9th Circuit issued its September 15, 2009 opinion in LVRC Holdings LLC v. Brekka, supra, [Rossini] should have been compelled to file the current motion. . . . [A]s of . . . the Brekka decision, which was issued four months after [he] was sentenced, he should have been aware there was circuit authority for the proposition that he was not guilty of a misdemeanor violation of the [Computer Fraud and Abuse Act] when he accessed FBI information for personal reasons. Nothing whatsoever justifies his delay.

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

The judge then took up the third factor:  adverse consequences. Rossini v. U.S., supra.  Rossini argued that, “as a former FBI counterterrorism specialist who has been convicted of violating the [Computer Fraud and Abuse Act], he has not been able to obtain work in his field of expertise.”  Rossini v. U.S., supra.  The U.S. Department of Justice conceded that

while it is true that adverse consequences flow from a criminal conviction, it argues that not every person who has been convicted of a crime is entitled to a writ of coram nobis. . . .  The government also notes the following: `His admitted behavior in conducting personal searches of the FBI database, obtaining information from that database, and sharing it with a third party would be an obvious impediment to any effort on his part to obtain future permanent employment in the counterterrorism field, quite separate and apart from the conviction to which that conduct lead.’

Rossini v. U.S., supra.  

Here, too, the judge found the government’s argument to be “persuasive.”  Rossini v. U.S., supra.  He pointed out that to satisfy the “case or controversy” requirement of

Article III, [Rossini] must show 1) that he suffered some actual or threatened injury as a result of the respondent's conduct; 2) that the injury resulted from the petitioner's conduct; and 3) that the injury is likely to be redressed by a favorable action. Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464 (1982). . . .

[E]ven if [Rossini’s] writ . . . was granted and his conviction was vacated, the injury he claims he suffered -- that he can no longer obtain employment in the field of counterterrorism -- would not necessarily be redressed. . . . [Rossini] . . . admitted to having accessed information on the FBI database, over forty times, and used it for personal purposes. This behavior is hardly likely to make him an attractive candidate for future work in the field of counterterrorism, where the need to maintain secrecy is of paramount importance. . . . [H]ad [Rossini] not admitted to the conduct at issue, vacating his judgment would have favorably redressed his injury. Thus, [he] cannot . . . argue that the adverse consequences he suffered were either solely the result of his conviction or . . . are sufficient to satisfy Article III's case or controversy requirement.

Rossini v. U.S., supra.  

Finally, the judge took up the fourth and final issue: an “error of fundamental character”. Rossini v. U.S., supra.  The judge began by noting that it

is hard to understand what error of a fundamental character haunts [his] conviction. [Rossini], represented by obviously competent counsel, chose to plead guilty and gain the benefits of doing so when he could have demanded a trial and asserted what might have been the successful argument that his behavior did not violate the statute. Instead, he chose to limit his sentencing exposure by pleading guilty.

Now that the law is more favorable to his position, he wants to undo the bargain he made and get the result he chose not to try to get in the first place. A writ of coram nobis is designed to cure a fundamental error, not a bad case of buyer's remorse.

Rossini v. U.S., supra.  

He on to explain that “[a]lternatively,” Rossini “might” argue that because the                     

information did not charge a crime, this Court lacked jurisdiction over the subject matter and its exercising that jurisdiction to convict him was a fundamental error. See, e.g., U.S. v. Peters, 310 F.3d 709 (U.S. Court of Appeals for the 11th Circuit 2002). But, in this Circuit, it is clear that a claim that the indictment fails to state an offense does not deprive the court of jurisdiction over the subject matter. See U.S. v. Delgado-Garcia, 374 F.3d 1337 (U.S. Court of Appeals for the D.C. Circuit 2004).

This is because the substantive sufficiency of the indictment is a matter that goes to the merits of the case, rather than to the district court's subject matter jurisdiction. U.S. v. Delgado–Garcia, supra. Accord U.S. v. George, 676 F.3d 249 (U.S. Court of Appeals for the 1st Circuit 2012). . . . Thus, the only possible avenue of relief [Rossini] could pursue is not available.

Rossini v. U.S., supra.  

The U.S. District Court Judge therefore denied Rossini’s motion. Rossini v. U.S., supra.  

PokerStars, Murder and Habeas Corpus

Richard Read “was convicted of murder, following a jury trial, and subsequently was sentenced to fifty years incarceration”, after which he appealed his conviction to the Appellate Court of Connecticut.  Read v. Commissioner of Correction, 2014 WL 5836756 (Appellate Court of Connecticut 2014).  That court affirmed his conviction.  Read v. Commissioner of Correction, supra.

Read then filed an action an action in the Superior Court of Connecticut – Judicial District of Tolland, in which he filed a “petition for a writ of habeas corpus claiming that his trial counsel was ineffective in representing him at his jury trial by failing to present certain expert testimony and as a result, he was prejudiced.”  Read v. Warden, 2013 WL 656893 2013). 

As Wikipedia explains, habeas corpus is a

legal action . . . by means of which detainees can seek relief from unlawful imprisonment. The . . . United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which demands that `The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.’
United States law affords persons the right to petition the federal courts for a writ of habeas corpus. 

Habeas corpus petitions are generally filed as pro se cases, and the government (state or federal) is usually ordered by the court to respond. Individual states also afford persons the ability to petition their own state court systems for habeas corpus pursuant to their respective constitutions and laws when held or sentenced by state authorities.

The Superior Court denied his petition and in this case Read is arguing that the court erred in doing so.  Read v. Commissioner of Correction, supra.

The Appellate Court began its analysis of Read’s appeal by explaining that the

murder of which [he] was convicted occurred on October 21, 2005, at approximately 11:45 p.m. At [Read’s] criminal trial, both the defense and the prosecution utilized computer experts.

Each expert had examined the petitioner's computer, but neither was able to determine whether [Read] had been playing online poker on the evening of the murder. Trial counsel's investigator did not contact PokerStars, the online website used by [him], and neither the defense expert nor the state's expert contacted the website. 

At the habeas trial, [Read] presented another computer expert, Monique Mattei–Ferraro, who testified that (1) she was able to contact PokerStars via e-mail; (2) PokerStars had activity logs going back to the time of the murder; and (3) PokerStars' records showed that [Read’s] username had been logged into the web-site between 4:43 p.m. and 10:07 p.m. on October 21, 2005, and again between 2:02 a.m. and 4:10 a.m. on October 22, 2005. Mattei–Ferraro also testified that, in her opinion, this information would have been available at the time of [Read’s] trial in 2007, but that she had not made this specific inquiry of PokerStars.

Read v. Commissioner of Correction, supra. 

The Superior Court denied Read’s petition for a writ of habeas corpus because it found that he “failed to prove that there was a reasonable probability that the presentation of additional evidence or experts from the poker site would have changed the outcome of the trial.”  Read v. Commissioner of Correction, supra. 

The Appellate Court began its analysis of that court’s decision by explaining that

`[under] the familiar two part test for ineffective assistance of counsel enunciated by the United States Supreme Court in Strickland [v. Washington, 466 U.S. 668 (1984)] . . .  the . . . Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.’(Internal quotation marks omitted). Gonzalez v. Commissioner of Correction, 308 Conn. 463, 68 A.3d 624 (Appellate Court of Connecticut 2013). . . .

`The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding. . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ (Internal quotation marks omitted). Peruccio v. Commissioner of Correction, 107 Conn. App. 66, 943 A.2d 1148 (Appellate Court of Connecticut 2008). `A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Strickland v. Washington,  supra.

Read v. Commissioner of Correction, supra. 

In this appeal, Read argued that the Superior Court “should have concluded that his trial counsel was ineffective for failing to direct and to prepare his computer expert properly in order to obtain and to present evidence that [Read] was playing poker online on October 21, 2005, the date of the murder.”  Read v. Commissioner of Correction, supra.  

The Appellate Court did not agree. Read v. Commissioner of Correction, supra.  In a footnote following the comment about Read’s playing poker online on the date of the murder, the Appellate Court notes that

[m]ore specifically, [Read] argues that even though the evidence demonstrated only that he was online prior to and following the time of the murder, it would have shown that he was telling the truth when he told police he had been online that night and would have deprived the state of an opportunity to attack his credibility during closing argument.

Read v. Commissioner of Correction, supra. 

The Appellate Court then explained that the

evidence presented against [Read] at the criminal trial was strong. The state presented evidence in the criminal trial that [Read] had spoken to the victim on the night of the murder, [Read’s] DNA was present on a cigarette butt and a Jack Daniels bottle found near the victim's body, [he] had access to a gun that was the same caliber as the murder weapon, ammunition of the same caliber was found in a pillowcase belonging to [Read] in a shed where he admitted to having been that night, [his] story of where he had been the night of the murder had changed several times and was somewhat far-fetched, and [Read] had admitted to a fellow inmate that he had shot the victim over a disagreement concerning a poker game.

The evidence that [Read] claims his trial counsel should have discovered and introduced at trial was that [his] username was logged onto PokerStars between 4:43 p.m. and 10:07 p.m. on October 21, 2005, and again between 2:02 a.m. and 4:10 a.m. on October 22, 2005.

Trial counsel testified at the habeas trial that he had pursued a reasonable doubt defense and that, even if he had known of the `new’ evidence, he would not have presented that evidence to the jury:

`No, that wouldn't . . . have helped my case at all. . . .  [I]f the state had been aware of this evidence, I would have stayed away from the topic of his potentially being on [PokerStars] altogether because it was a short distance from [Read’s]] home to where the body was found, and being off the computer at 10:07 or whatever it was and by -- there's plenty of time to be off the computer and accomplish the shooting.'  

The evidence demonstrated that [Read’s] username was not logged on for several hours before and after the murder, and the jury reasonably could have thought that the evidence was inculpatory. The habeas court did not err in concluding that [Read] was not prejudiced by the failure of his trial counsel to discover and enter into evidence facts that were detrimental to [Read’s] case.

Read v. Commissioner of Correction, supra. 

In another footnote that went to Read’s claims as to where he was at the time the murder was committed, the Appellate Court explained that Read “at one point said that he was in the shed sorting fishing poles for several hours at the time of the murder.”  Read v. Commissioner of Correction, supra. 

You can, if you are interested, learn more about Read’s trial in the news story you can find here.