Monday, October 31, 2016

The Former Employees, the Company-Issued Laptops and “Computer Crime”

This post examines an opinion from the Colorado Court of Appeals:  People v. Stotz, 2016 WL 611726 (2016).  The court begins the opinion by explaining that “[d]efendants Matthew Stotz and Gustav Eicher, appeal the judgments of conviction entered on jury verdicts finding them guilty of computer crime.” People v. Stotz, supra.
The court goes on to explain how, and why, the prosecution arose:
Until their resignations in July 2012, defendants worked for the Denver office of Electric Power Systems (EPS), a nationwide company that performs electrical testing for utilities and industrial and commercial clients. Stotz was the regional operations manager, and Eicher was the sales manager for industrial and commercial clients.

In the spring of 2012, defendants became unhappy with some circumstances of their employment with EPS. Along with three other Denver EPS employees, they resigned on July 23, 2012, after accepting job offers from EPC, a competitor of EPS. . . .

Sometime after defendants returned their company-issued laptops and left the company, EPS realized that information it needed on past, current, and potential jobs was missing from the laptops. Such information included data from the tests EPS performed on its customers' power equipment, reports on the test results that EPS prepared for its customers, the individual `test macros’ or models EPS designed for each facility before testing it, bids and quotes for potential jobs, and equipment inventory and scheduling for upcoming jobs.

EPS employees testified that this information should have been stored on defendants' laptops for every job they had worked on at EPS. However, Eicher's laptop contained no such information for any job, and an EPS employee testified that Stotz's laptop had incomplete information regarding some jobs. Also missing from defendants' laptops were the manuals issued by the manufacturers of the equipment being tested, which detailed the equipment's specifications, its intended use, how to install it, and when and how to maintain it.

Manuals were issued for each equipment model and year, and there was evidence presented at trial to support a conclusion by the jury that they were essential for performing the testing. Electrical engineers like defendants collected and kept the manuals that they used for work; for instance, Stotz testified that he uploaded over 7000 manuals to his EPS laptop when he started working there.

EPS hired a computer forensic company to determine what had been deleted from defendants' laptops and to recover, if possible, the deleted documents. Evidence at trial showed that Stotz and Eicher had first copied files from their EPS laptops onto USB hard drives and then deleted the files from the laptops. Along these lines, the owner of the forensic computer company testified that he recovered 3700 deleted files and 1800 deleted e-mails from Stotz's computer and 8200 deleted files and 25,000 deleted e-mails from Eicher's computer.
People v. Stotz, supra.
The opinion then explains that
[b]oth Stotz and Eicher testified at trial. Neither disputed that they copied files from their company laptops onto personal external hard drives and then deleted the files from their laptops before leaving EPS.

Stotz testified that he copied files so that he would have information relating to the projects he had worked on at EPS in case he needed it to protect himself from liability if a problem arose in the future with one of the projects. He testified that he downloaded onto his external hard drive over 24,000 EPS files before he resigned, including 7000 manuals.

Stotz denied deleting any testing data or other data regarding any EPS projects from the laptop, although he admitted to deleting the 7000 manuals. He testified that he did not believe deleting the manuals would hurt EPS because he had brought with him or obtained all the manuals himself, and he had made sure that the remaining EPS employees had copies of all the manuals he had before deleting them. He testified that most of the other files that he deleted were personal music, photo, and video files.

Eicher testified that only about 20% of the documents he copied and then deleted from his company laptop were EPS materials, and the remaining 80% were documents from his prior employment that he had loaded onto his EPS laptop. He claimed that he copied the EPS documents so that he would have a personal copy of his quotes and projects for his own reference in the future.

Regarding the deletions, Eicher testified that his understanding was that after his resignation the laptop would go to EPS's IT department and all the files on it would be erased to prepare the laptop for use by another EPS employee. He testified that he thus believed that it was not improper to erase all of the laptop's files and software other than Microsoft Word and Excel, which was the condition in which he had received the laptop when he was hired. He testified that the manuals that he deleted consisted primarily of manuals he had uploaded to the computer when he began working for EPS. He denied that he was trying to hurt EPS by deleting them; rather, he believed that there was no need to leave the manuals on the laptop because he believed it would be wiped clean after he left.

Eicher testified that he deleted bids and quotes from his laptop because `deleting bids was a normal thing’ for him and he deleted them as he `went along.’ He testified that he filed a hard copy of every bid and quote, and the information relating to every job or project, in paper folders that remained in the EPS office after he resigned. He also testified that a spreadsheet he had prepared and given to other EPS employees before leaving EPS showed every current job he was involved in and its status. He thus denied that he intended to harm EPS by deleting all his quotes, bids, and project files from the laptop because he believed that the hard copies of all the information relating to outstanding bids and past and in-progress jobs were in the office's paper files.
People v. Stotz, supra.
The court then summarized the evidence the prosecution presented at trial:
Although Eicher testified that he left the office's paper quote and job files organized, complete, and intact, some of the EPS employees who testified at trial disputed his assertion. For instance, Thomas Reed, who owned EPS along with his brother Steven and their father, testified that the Denver office was missing information relating to quotes. He testified that employees consequently were not always aware of upcoming jobs and sometimes failed to show up at job sites for scheduled jobs. He also testified that because the office was missing some of the reports for jobs that had already been completed, EPS could not provide them to their customers, as required by their contracts.

Steven Reed likewise testified that after the resignations, Denver employees frequently did not know what jobs or quotes were pending, and they (embarrassingly) had to ask their customers to forward EPS quotes to them so that they could determine what needed to be done. And employee Michael Benitez testified that employees often did not know when and where they were scheduled to work and the specifics of the work that needed to be done, in part because the spreadsheet Eicher had provided was missing critical information. Other EPS employees gave similar testimony.
People v. Stotz, supra.
The Court of Appeals then explained that
EPS filed a civil suit against the five employees, including defendants, who had resigned on July 23, 2012. EPS sought to enforce the noncompete agreements each employee had entered into with EPS and to obtain money damages. Following a preliminary injunction hearing in October 2012, the district court mainly denied relief to EPS, concluding that the noncompete agreements were probably unenforceable. The court also determined that EPS probably could not establish that any data or documents in the possession of the civil defendants had been provided to EPC to the detriment of EPS.          
People v. Stotz, supra.
The opinion then addresses the filing of criminal charges, noting that in November of 2012,
EPS submitted a formal complaint to the Economic Crime Unit of the Denver District Attorney's (DA's) office, seeking criminal prosecution of defendants. The DA's office filed criminal charges against defendants in January 2013. . . .

Defendants were charged with computer crime, causing loss of $1000 or more but less than $20,000; conspiracy to commit computer crime; conspiracy to commit theft; theft of trade secrets; and conspiracy to commit theft of trade secrets. A jury convicted defendants of felony computer crime but acquitted them of the other charges. The trial court sentenced defendants to a two-year suspended prison sentence, imposed two years' probation, and awarded EPS $104,920.26 in restitution, for which defendants are jointly and severally liable.
People v. Stotz, supra.
On appeal, Stotz and Eicher argued, among other things, that “the computer crime statute under which they were convicted is unconstitutional on its face and as applied to them because it . . . provides inadequate guidance regarding what conduct is prohibited and thus is void for vagueness”.  People v. Stotz, supra. The Court of Appeals began its analysis of their argument by explaining that
[w]e review de novo a constitutional challenge to a statute. People v. Cisneros,2014 COA 49, 356 P.3d 877. Statutes are presumed to be constitutional, and the party challenging the statute has a heavy burden to establish that it is unconstitutional. See People v. Cisneros, supra.
People v. Stotz, supra.
Next, the Court of Appeals outlined what is involved in bringing a void for vagueness challenge to a criminal statute:
Due process `requires that a penal statute define [a] criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.’ Kolender v. Lawson, 461 U.S. 352 (1983). . . . A statute is unconstitutionally vague under the void-for-vagueness doctrine if it `fail[s] to provide the kind of notice that will enable . . . . the ordinary citizen to conform his or her conduct to the law,’ City of Chicago v. Morales, 527 U.S. 41 (1999), or “its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement,’ People v. Shell, 148 P.3d 162, 172 (Colorado Supreme Court 2006).

Thus, in addressing a void for vagueness challenge, we must determine `whether the statute “forbids or requires the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application.”’ People v. Gross, 830 P.2d 933, 937 (Colorado Supreme Court 1992) (quoting People v. Becker, 759 P.2d 26, 31 (Colorado Supreme Court 1988)).

A statute may be challenged as unconstitutionally vague either on its face or as applied to particular conduct. People v. Devorss, 277 P.3d 829, 835 (Colorado Court of Appeals 2011). A statute is unconstitutionally vague on its face if it is incomprehensible in all of its applications. People v. Shell, supra. A statute is unconstitutionally vague as applied if it does not, with sufficient clarity, prohibit the conduct against which it is enforced. People v. Devorss, supra.  If a defendant's conduct is clearly proscribed by the statute—that is, the statute is not vague as applied to the defendant's conduct—the defendant cannot successfully challenge the vagueness of the law on its face or as applied to the conduct of others. See People v. Perea, 74 P.3d 326, 332 (Colorado Court of Appeals 2002).

We apply familiar principles of statutory interpretation in analyzing a vagueness challenge. Our primary task is to ascertain and give effect to the intent of the legislature. Whimbush v. People, 869 P.2d 1245, 1249 (Colo. 1994). `To determine legislative intent, we begin with the language of the statute itself and interpret statutory terms in accordance with their commonly accepted meanings.’ Whimbush v. People, supra. If the plain language of the statute is clear and unambiguous, we must apply it as written. People v. Goodale, 78 P.3d 1103, 1107 (Colo. 2003). `Only when the statute is unclear or ambiguous may we look beyond the words of the statute to legislative history or rules of statutory construction.’ People v. Goodale, supra.
People v. Stotz, supra.
The Court of Appeals began its analysis of the defendants’ arguments as to why their convictions should be reversed, explaining that the section of the computer crime statute under which defendants were convicted provides:
`A person commits computer crime if the person knowingly: ... (e) Without authorization or in excess of authorized access alters, damages, interrupts, or causes the interruption or impairment of the proper functioning of, or causes any damage to, any computer, computer network, computer system, computer software, program, application, documentation, or data contained in such computer, computer network, or computer system or any part thereof.’

People v. Stotz, supra.
The opinion goes on to explain that the
terms `authorization,’ `in excess of authorized access,’ and `damage’ are defined by statute:

(1) `Authorization’ means the express consent of a person which may include an employee's job description to use said person’s computer, computer network, computer program, computer software, computer system, property, or services as those terms are defined in this section. . . . 

(6.3) `Damage’ includes, but is not limited to, any impairment to the integrity of availability of information, data, computer program, computer software, or services on or via a computer, computer network, or computer system or part thereof.

(6.7) `Exceed authorized access’ means to access a computer with authorization and to use such access to obtain or alter information, data, computer program, or computer software that the person is not entitled to so obtain or alter.

People v. Stotz, supra.
The court explains that the
jury was instructed on the statutory definitions of these terms and the elements of computer crime.

First, we conclude that the term `knowingly’ in section 18–5.5–102(1)(e) applies to every element of the offense. `When a statute defining an offense prescribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears.' § 18–1–503(4), Colorado Revised Statutes 2015. Because the term `knowingly’ in section 18–5.5–102(1)(e) is placed immediately before a colon establishing the elements of the crime, we must assume that the General Assembly intended the term to modify every element of the offense; no contrary legislative intent clearly appears. Accordingly, a person commits computer crime under the statute if he knowingly commits one of the statute's proscribed acts knowing that he does so `[w]ithout authorization or in excess of authorized access.’ See § 18–5.5–102(1)(e).
People v. Stotz, supra.
The Court of Appeals then began its analysis of the issues, and the arguments, in the appeal.  It divided the analysis into two categories: (i) the facial challenge to the statutes and (ii) an as applied challenge to the statutes.  The court addressed the two challenges in this order.
It began with the facial challenge, explaining that the defendants argued that
Colorado Revised Statutes § 18–5.5–102(1)(e) is void on its face because the phrase `causes any damage to . . . data contained in [a] computer’ is not adequately concrete to reasonably forewarn persons of ordinary intelligence of what is prohibited. We disagree.

`A law is unconstitutionally vague only if it specifies no standard of conduct at all, and not if it requires a person to conform his or her conduct to an imprecise, but comprehensible normative standard.’ People v. Perea, 74 P.3d (Colorado Court of Appeals 2002).

The deletion of thousands of documents from one's employer's laptop clearly falls within the statutory definition of `damage.’ Colorado Revised Statutes § 18–5.5–101(6.3). The definition of damage is specific enough to provide a person of ordinary intelligence notice that the deletion of documents from a computer may cause damage to data contained in a computer. See People v. Shell, supra. Therefore, defendants have not established that the statute is incomprehensible in all of its applications. . . .
People v. Stotz, supra.
The opinion goes on to explain that
the Defendants express doubts regarding whether an individual actually `damaged’ data under the statute when the data was placed on the computers by the individuals themselves and hard copies of the deleted information were stored in a physical location. However, this was a factual issue for the jury to resolve; the plain language of the statute gives sufficient fair warning that `impairing the integrity of availability of information [or] data’ covers deleting documents from a company laptop such `that persons may guide their actions accordingly.’ See People v. Gross, supra.

Defendants also worry that because there is no malicious intent requirement in section 18–5.5–102(1)(e), if the statute is permissibly applied to a situation like theirs, any keystroke knowingly made by an employee on a company computer that alters content on that computer could form the basis for criminal charges. But in interpreting a statute, it must `be considered and read as a whole.’ People v. Randolph, 852 P.2d 1282, 1284 (Colo. App. 1992). The statute interpreted as a whole does not proscribe any keystroke that changes or deletes content on a computer; it only proscribes such an act if it is done knowingly without authorization or in excess of authorized access and with knowledge that it will impair `the integrity of availability of information, data, computer program, computer software, or services on or via a computer, computer network, or computer system or part thereof.’ See §§ 18–5.5–101, 18–5.5–102(6.3).

Accordingly, defendants' facial challenge to section 18–5.5–102(1)(e) based on the term `damage’ fails.
People v. Stotz, supra.          
The Court of Appeals then took up the defendants’ argument that the “statute is vague as applied to their actions because. . .  they had full authority over their own laptops, and management neither exercised any control, nor promulgated any rules or guidelines, over the placement, retention, or deletion of the content of their laptops”.  People v. Stotz, supra. The court began its analysis of this argument by explaining that
[m]uch of defendants' vague-as-applied argument focuses on the fact that EPS's employee handbook provided that `[l]ocal administrative rights and support of standard EPS hardware or software shall be granted to all employees,’ and testimony by defendants and other former and current EPS employees that EPS employees had full authority over the content of their laptops.

For example, Stotz testified that he had never received, nor believed that he needed to receive, prior authorization before downloading, uploading, or deleting documents from his computer, and that EPS never advised him regarding what he could or could not delete from his computer. He testified that, to him, `local administrative rights’ meant that he could do what he wanted with his computer.

Eicher similarly testified that he alone decided what to put on his laptop the entire time he worked for EPS, and there was no direct supervisory input, direction, or oversight from management or anyone else regarding what he should or should not do with his laptop. His understanding was that he had complete autonomy in adding, copying, or deleting material to or from his laptop.

Other former and current EPS employees provided similar testimony about decision-making authority over company laptops. Steven Reed, for example, testified that an employee did not need advance permission to download a document onto an EPS computer, and that no one at EPS supervised employees' day-to-day decisions about what to put on, or delete from, their computers.
People v. Stotz, supra.
The opinion explains that,
[n]evertheless, the prosecution's theory of liability at trial was that defendants knew that they were not authorized to delete the documents they deleted from their laptops at the time that they deleted them. To this end, Steven Reed testified that he had never authorized defendants to delete reports, records, test results, quotes, and the like from EPS's computers or computer networks. Thomas Reed also testified that he had never authorized defendants to delete that type of material from their computers, and that he never would have done so because maintaining that information was critical for EPS's business. During cross-examination, Stotz admitted that nobody authorized him to delete the files at issue, and that he did not ask permission before doing so. Eicher testified that nobody ever authorized him to delete EPS files.

The prosecution also adduced a significant amount of testimony on a data storage program called `SharePoint’ that EPS's Denver office used. Steven Reed testified that in January 2012, EPS management informed all offices that they were to start using a central drive to store their critical data. However, the management group in Denver, including Stotz, told Steven Reed that they were more comfortable using SharePoint for central data storage, and an agreement was reached between EPS management and the Denver office in April 2012 that all managers in Denver would save their information to SharePoint rather than the central drive.

But from April until defendants' resignations in July 2012, no documents from the Denver office were saved to SharePoint. Defendants and other Denver employees testified that SharePoint stopped working in April, and they were unable to save information to it from that point forward. The prosecution presented testimony from EPS employees that would permit the jury to infer that if it was true that SharePoint had not been working, the only reason defendants would have deleted critical information from their laptops was to harm EPS by destroying the only electronic copy of that information.
People v. Stotz, supra.
The opinion goes on to explain that
[w]e conclude that the plain language of section 18–5.5102(1)(e) prohibits, with sufficient clarity, an employee's knowing deletion of the only electronic copies of thousands of computer documents, when the employee knows that such deletion is not authorized by the employer. . . .

Although defendants had authority to access the documents they deleted, the jury necessarily determined that they exceeded such authorized access by deleting information that they were not authorized to delete. Accordingly, defendants' acts fall squarely within the statute's proscription of accessing a computer with authorization and using such access to knowingly damage information on the computer, knowing that they were not entitled to do so. . . .

Defendants' argument essentially boils down to an assertion that, under all the circumstances, they did not know, and reasonably could not have known, that they were not entitled to delete the documents. But the truth of this assertion was a factual question for the jury; it is not a proper basis for us to conclude that the statute does not provide fair notice that it forbids an employee from knowingly deleting files from a company computer, knowing that he did not have authorization to do so.
People v. Stotz, supra.
For these and other reasons, the Court of Appeals ultimately held that the “The judgments of conviction and the restitution orders are affirmed.” People v. Stotz, supra.


Thursday, October 27, 2016

The Computer Tower, Sexual Exploitation of Children and the Estranged Wife

This post examines a recent opinion from the Court of Appeals of Georgia:  DeGeorgis v. State, 2016 WL 6134087 (2016). The opinion begins by explaining that
[f]ollowing a jury trial, David DeGeorgis was convicted of two counts of sexual exploitation of children for possessing both printed and electronic images depicting minors engaged in sexually explicit conduct. Prior to trial, DeGeorgis filed a motion to suppress the evidence seized during the execution of the warrants to search his computer equipment and residence, and he further moved to suppress a statement he made to the investigating officers conducting the search of his home. The trial court denied DeGeorgis's motions and admitted the evidence, which DeGeorgis asserts was error. 
DeGeorgis v. State, supra.
The Court of Appeals then explains that,
[o]n appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979).
 (Citation omitted.) Brown v. State, 336 Ga.App. 428, 429, 785 S.E.2d 84 (Georgia Court of Appeals 2016).
DeGeorgis v. State, supra.
The court went on to outline the facts that led to DeGeorgis’ being charged and convicted:
So construed, the evidence shows that in August 2012, DeGeorgis's estranged wife brought a computer tower to the Holly Springs Police Department and expressed concern that she had discovered child pornography on its hard drive. Upon speaking to a police lieutenant, DeGeorgis's wife explained that she had recently moved out of her and DeGeorgis's marital home, but returned when she knew that DeGeorgis was absent in order to retrieve computer equipment used by DeGeorgis which she knew to contain sexually explicit pictures of herself. While later viewing images on the hard drive of one of the computer towers, she discovered what she believed to be child pornography and brought the tower to the police station. She requested that the lieutenant look at the computer's contents to confirm whether it contained unlawful material.

The lieutenant agreed to do so and after viewing some of the images, he also came to suspect that the computer contained child pornography. He thereafter took possession of the computer tower at issue, as well as a second computer tower and two external hard drives that DeGeorgis's wife had also retrieved from the residence. The lieutenant obtained search warrants for each piece of equipment and requested that a forensic study of their contents be conducted.

At the same time that the lieutenant was in the process of obtaining the search warrants and releasing the towers and drives for forensic analysis, DeGeorgis filed a police report at the same police station in reference to the missing items. The lieutenant arranged to meet an unsuspecting DeGeorgis at his home the following day. Upon arrival, the lieutenant presented DeGeorgis with a search warrant for the residence, and he and a second officer proceeded to conduct the search while two additional officers remained outside for security.

The search focused primarily on an area of the garage that DeGeorgis had converted into a `man cave,’ and in which he spent the vast majority of his time. The area contained a myriad of locked boxes, drawers, and compartments. When asked, DeGeorgis informed the lieutenant that one of the locked cabinets contained a metal key box holding color-coded keys to each of the remaining locked containers, and he provided the lieutenant with a key to the cabinet. In one locked drawer, the lieutenant found numerous ziplock baggies containing women's undergarments, each individually labeled with a female's name and a date. After being questioned about the items, DeGeorgis admitted that they were “in his possession.” The remaining locked containers contained a pornography collection so extensive that, once seized, it took law enforcement officers working in shifts almost two months to sift through its contents and to separate out the 28 printed images depicting child pornography that were ultimately tendered at trial.
DeGeorgis v. State, supra.
The opinion went on to explain that a
forensic study of the computer towers and of one of the external hard drives1 also revealed an immense collection of `bizarre’ pornography, including 127 electronic images flagged by the forensic examiner as depicting naked pictures of underage minors.

DeGeorgis was charged with and convicted of two counts of sexual exploitation of children in violation of OCGA § 16–12–100(b)(8) He filed a motion for new trial, which the trial court denied. This appeal follows.
DeGeorgis v. State, supra.  The opinion adds a footnote after the reference to “bizarre” pornography, in which the court noted that the “trial court suppressed details regarding the specific kinds of pornography not involving minors that was stored on the computers.”
DeGeorgis v. State, supra.
The Court of Appeals then began its analysis of DeGeorgis’ first argument, which was that
the trial court erred in denying his motion to suppress the electronic images located on the computer equipment. Specifically, he contends that because his wife `was estranged, separated, and had reentered the marital residence without permission to take and view the computers,’ her consent to search the computer tower was void and the lieutenant's viewing of its contents was unlawful. DeGeorgis further asserts that the resultant search warrants for the remaining computer equipment and his residence amounted to fruit from the poisonous tree and were, thus, invalid.

It is well established, however, `that no illegal search and seizure occurs when a private citizen independently discovers contraband or other evidence of illegal conduct and then brings it to the attention of law enforcement.’ Johnson v. State, 231 Ga.App. 823, 825 (3), 499 S.E.2d 145 (Georgia Court of Appeals 1998); see U.S.v. Jacobsen, 466 U.S. 109, 113 (1984)). Indeed, `[t]he protection afforded by the Fourth Amendment proscribes only governmental action and is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation of a government official.’ (Citation, punctuation, and footnote omitted.) Hitchcock v. State, 291 Ga.App. 455, 457 (2), 662 S.E.2d 155 (2008); see Jacobsen, 466 U.S. at 113 (1), 104 S.Ct. 1652. In this context, `[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.’ U.S. v. Jacobsen, 466 U.S. at 117 (I), 104 S.Ct. 1652; see Hobbs v. State, 272 Ga.App. 148, 150 (1), 611 S.E.2d 775 (2005) (`No Fourth Amendment violation exists when an individual's privacy is initially invoked by a private act, and any additional invasion of [a defendant's] privacy . . . is measured by the degree to which [the authorities] may have exceeded the scope of the private search.’) (citations omitted).
DeGeorgis v. State, supra. 
The court went on to explain that
[h]ere, the evidence is uncontroverted that the lieutenant's initial viewing of the contents of the computer tower's hard drive occurred at the request of DeGeorgis's wife, the lieutenant was guided in his search by DeGeorgis's wife so as to view the files that she had already viewed, and the lieutenant looked at the images solely for the purpose of verifying whether the computer contained unlawful material. The lieutenant's initial search did not, therefore, amount to a violation of DeGeorgis's Fourth Amendment rights. See Hobbs v. State, supra. (`Discovery of the contraband by a private citizen and the verification of this evidence by the investigators . . . does not violate the Fourth Amendment’); Hester v. State, 187 Ga.App. 46, 47, 369 S.E.2d 278 (1988) (rejecting appellant's argument that his Fourth Amendment rights were violated when shop owner discovered what he suspected to be narcotics while working on appellant's vehicle and reported the contraband to authorities); see also U.S. v. Jacobsen, supra. After observing what he believed to be child pornography on the retower's hard drive, the lieutenant had probable cause to obtain search warrants for the remaining computer equipment and home. See generally Henson v. State, 314 Ga.App. 152, 154–55, 723 S.E.2d 456 (2012) (noting that an officer who discovered child pornography on appellant's laptop computer while searching its contents for evidence of a drug crime had probable cause to obtain additional search warrants for the phone and appellant’s computer equipment because the facts supported a finding that `there [was] a fair probability that evidence of a crime [would] be found in a particular place’) (punctuation and footnote omitted). The trial court, therefore, did not err in denying DeGeorgis's motion to suppress on that basis.
DeGeorgis v. State, supra. 
The Court of Appeals then took up DeGeorgis’ next argument on appeal, i.e., that
the trial court erred in denying his motion to suppress his admission made during the search of his residence that he possessed the ziplock baggies containing women's undergarments. He argues specifically that the statement was rendered involuntary because the lieutenant had allegedly taken his cellular phone and his car keys and he did not believe that he was free to leave at the time the statement was made.

We begin by noting that the trial court excluded both the actual question posed to DeGeorgis as well as DeGeorgis's detailed response to that question on the basis that they were unduly prejudicial. Thus, the evidence presented to the jury was limited solely to DeGeorgis's admission that the ziplocked undergarments found during the search were `in his possession.’ Nevertheless, DeGeorgis's representation of the facts surrounding his admission is belied by the record. The lieutenant seized DeGeorgis's cellular phone because it was specifically enumerated on the search warrant as an item that may contain evidence of a crime, and at no time did the lieutenant or any other law enforcement officer request or seize DeGeorgis's car keys. Rather, after being asked if he would produce keys to the myriad of locked containers in his `man cave’ so as to avoid the officers cutting those locks, DeGeorgis voluntarily produced a key ring holding the key to a locked cabinet in which the remaining keys were stored. DeGeorgis now contends, without having produced any evidence in support, that the same key ring also held his car key.
DeGeorgis v. State, supra. 
The court concluded the opinion with the following comments:
[r]egardless, even assuming DeGeorgis's car key was inadvertently taken by the lieutenant, the record fully supports the trial court's ruling that DeGeorgis's admission to possessing the undergarments was voluntary. Although DeGeorgis was asked to remain outside the home for officer safety during the search, he was not placed under arrest, was not confined in any way, and was never told that he could not leave. Indeed, the officers testified that had DeGeorgis attempted to leave during the search, he would have been permitted to do so. It follows that DeGeorgis failed to prove that his statement was involuntary. See Quedens v. State, 280 Ga. 355, 358–359 (2), 629 S.E.2d 197 (Georgia Supreme Court 2006); see also Bragg v. State, 295 Ga. 676, 679 (4) (b), 763 S.E.2d 476 (Georgia Supreme Court 2014).
DeGeorgis v. State, supra. 
The Court of Appeals therefore affirmed DeGeorgis’ conviction.  DeGeorgis v. State, supra. 

Wednesday, October 26, 2016

Possession of Child Pornography, the Guilty Plea and Restitution

This post examines an opinion from the Court of Appeals of Wisconsin:  State v. Tarlo, 2016 WL 5794352 (2016). The court begins the opinion by explaining that
David Tarlo challenges the circuit court's award of restitution to the mother of a victim of child pornography. He argues the court erred in concluding the mother met her burden of proving  the claimed loss was the result of his criminal conduct. . . .
State v. Tarlo, supra.
The opinion goes on to explain that Tarlo was
charged with five counts of possession of child pornography in relation to five images found on his computer. According to the criminal complaint, a Wisconsin Department of Justice analyst concluded most of the images were viewed in November and December 2009 and March 2011. Tarlo pled guilty to one of the counts with the other counts being dismissed but read in at sentencing.

The mother of a child alleged to be in one of the images on Tarlo's computer sought $60,000 in restitution from Tarlo for lost income. She claimed at the restitution hearing before a court commissioner in this case that she was deprived of that amount in income support due to her husband's earlier arrest and ultimate incarceration for producing child pornography, including pornographic images of her daughter. The mother provided testimony from which the court commissioner concluded that one of the images possessed by Tarlo was an image of the daughter that was produced by her husband. The State argued that the restitution request was appropriate because Tarlo had viewed and possessed the image.

The court commissioner ultimately recommended Tarlo pay restitution of $10,000. It reached this amount by dividing the $60,000 requested by six, which is the total number of people that the mother testified had been caught possessing a pornographic image of the daughter. The circuit court subsequently adopted this recommendation as its own. Tarlo moved for reconsideration, which was denied. He appeals.
State v. Tarlo, supra.
The opinion goes on to explain that
Tarlo argues the circuit court erroneously exercised its discretion in ordering him to pay $10,000 because `the family's lost income is not related to [his] possession’ of the daughter's image. He asserts the mother failed to meet her burden of demonstrating that the lost income support she sustained was a result of Tarlo's crime of viewing and possessing her daughter's image. Based upon the evidence presented at the restitution hearing, we must agree.

At a restitution hearing, `[t]he burden of demonstrating by the preponderance of the evidence the amount of loss sustained by a victim as a result of a crime considered at sentencing is on the victim.’ Wisconsin Statutes § 973.20(14)(a) (2013–14) (emphasis added). As Tarlo points out, `[b]efore restitution can be ordered' . . . there must be “a causal nexus” between the “crime considered at sentencing” and the damage.’ State v. Rash, 2003 WI App 32, ¶ 6, 260 Wis.2d 369, 659 N.W.2d 189 (Wisconsin Court of Appeals 2003) (citation omitted).

`In proving causation, a victim must show that the defendant's criminal activity was a “substantial factor” in causing damage. The defendant's actions must be the “precipitating cause of the injury” and the harm must have resulted from “the natural consequence[s] of the actions.”’ Id.(alteration in original; citation omitted). `Circuit courts have discretion . . . in determining whether the defendant's criminal activity was a substantial factor in causing any expenses for which restitution is claimed.’ State v. Johnson, 2002 WI App 166, ¶ 7, 256 Wis.2d 871, 649 N.W.2d 284 (Wisconsin Court of Appeals 2002) (citing State v. Canady, 2000 WI App 87, ¶¶ 6, 12, 234 Wis.2d 261, 610 N.W.2d 147). A discretionary decision `should only be disturbed when there has been an erroneous exercise of that discretion.’ State v. Madlock, 230 Wis.2d 324, 329, 602 N.W.2d 104 (Wisconsin Court of Appeals 1999). A court erroneously exercises its discretion if it exercises its discretion `under an erroneous view of the law,’ id., or fails to `logically interpret[ ] the facts.’ State v. Johnson, supra.
State v. Tarlo, supra.
The opinion goes on to explain that
[w]hile we are to `construe the restitution statute broadly and liberally in order to allow victims to recover their losses,’ those losses must still be shown to be `as a result of a defendant's criminal conduct.’ State v. Longmire, 2004 WI App 90, ¶ 11, 272 Wis.2d 759, 681 N.W.2d 534 (Wisconsin Court of Appeals 2004) (citation omitted). It is a `bedrock principle’ that restitution should reflect, and a defendant should be made liable for, `the consequences of the defendant's own conduct,’ `not the conduct of others.’ Paroline v. United States, 134S.Ct. 1710 (2014).
State v. Tarlo, supra.
The Court of Appeals then began its analysis of the issue in this case, noting, initially, that
[h]ere, the evidence presented at the restitution hearing establishes only financial losses incurred as a result of the earlier conduct of the mother's husband in producing the child pornography; it does not establish that any of the losses resulted from Tarlo's criminal conduct, or even general trafficking of the daughter's image over the Internet. The mother presented evidence that she incurred the $60,000 of lost income support as a result of her husband's arrest and incarceration for his production of child pornography. Of that amount, approximately $45,000 was lost due to her husband's lost employment and $15,000 was lost due to her own lost employment because, as the court commissioner found, the mother `needed to quit her jobs to supervise her children and transport them to their treatment sessions.’ The court commissioner noted, `In reality, this amount could be much higher, but the victims are only seeking $60,000.’ The amount could have been much higher because, according to the mother's testimony, $60,000 was the amount of loss incurred `every year’ since 2010, when it was discovered her husband produced the child pornography.

According to the complaint,  most of the images of child pornography on Tarlo's computer were viewed in November and December 2009 and in March 2011. The mother indicated at the restitution hearing, and the record otherwise supports, that she first learned of the viewing and possession of her daughter's image—by Tarlo and five other individuals—at some point in approximately the year leading up to the June 2, 2014 restitution hearing.

However, even if the court had awarded the mother the $10,000 it did in relation to lost income for that year immediately preceding the restitution hearing, the evidence nonetheless still failed to establish a `causal nexus’ between the lost income and the viewing and possession of the image. The evidence established that the income was lost due to the husband's earlier production of child pornography and related arrest and incarceration; no evidence was presented from which the court could reasonably infer that the viewing and possession of the daughter's image by Tarlo or others caused any of the income loss for which the mother sought restitution. See Wisconsin Statutes § 973.20(14)(a).
State v. Tarlo, supra.
The opinion then explains that
mother also testified she and her children had participated in individual counseling as a result of her husband's production of the child pornography; but she made no request for restitution related to any counseling, provided no testimony or other evidence of any counseling costs, and indicated that the counseling was provided at no cost to her through `crime victim assistance’ in relation to her husband's crime. When asked by the court commissioner if she anticipated any future expenses related to Tarlo's crime, such as `other expenses for treatment or therapy that you think is not going to be covered,’ she could only indicate that `[t]here could be’ other expenses, but provided no suggested financial costs, past or present, upon which any treatment-related restitution award could be based.

The mother did testify her daughter is revictimized every time an individual views her image and she (the mother) feels revictimized every time she is notified of an individual viewing the image. The mother's and daughter's revictimization cannot be doubted. See Paroline v. United States, supra, (`[E]very viewing of child pornography is a repetition of the victim's abuse’). That said, evidence still needed to be presented from which the circuit court could conclude that financial losses claimed by the mother resulted from the viewing and possession of her daughter's image—and not just the earlier criminal conduct of her husband. No such evidence was presented at the restitution hearing.
State v. Tarlo, supra.
The court went on to explain that
[w]ith virtually no analysis or analogizing of the case to this one, the State provides large block quotes from Paroline to support its assertion that `[f]ederal case law supports the concept of holding consumers of child pornography liable for restitution to victims even though the pornography is created elsewhere and long ago.’ While that assertion is generally correct, Paroline does not aid the State here.

The uncle of the victim in Paroline sexually abused the victim when she was eight and nine years old in order to produce child pornography. Paroline v. United States, supra. He was convicted of the offense and required to pay $6000 in restitution. Id. The victim participated in therapy in 1998 and 1999 until the therapist determined she was `back to normal.’ Id. The victim suffered `a major blow to her recovery,’ however, when she learned at age seventeen `that images of her abuse were being trafficked on the Internet.’ Id. The possessors of her images `easily number[ed] in the thousands,’ and the knowledge that her images `were circulated far and wide’ renewed her trauma and `made it difficult for her to recover from her abuse.’ Id.
State v. Tarlo, supra.
The opinion continued outlining the analysis that applied here, explaining that
Paroline later was convicted in relation to possessing between 150 and 300 images of child pornography, including two which depicted the victim. Id. at 1717–18. The victim sought restitution under 18 U.S. Code § 2259 (1996) in the amount of nearly $3 million in lost income and $500,000 in future treatment and counseling expenses. Paroline v. United States, supra. The district court declined to award restitution, holding that the government failed to establish losses proximately caused by Paroline's crime. Id. On appeal, the Supreme Court struggled with the question of causation and how courts could properly award restitution in cases where `a particular defendant . . . is one of thousands who have possessed and will in the future possess the victim's images.’ Paroline v. United States, supra. The Court continued, `In determining the amount of general losses a defendant must pay under § 2259 the ultimate question is how much of these losses were the “proximate result,” § 2259(b)(3)(F), of that individual's offense.’ Paroline v. United States, supra. The Court discussed factors federal district courts should consider, as`“rough guideposts,’ in determining an appropriate amount of restitution, and it remanded the matter back to the district court. Paroline v. United States, supra.

Ultimately, under the federal statute at issue in that case, Paroline allows a victim in the `special context’ of child pornography to recover restitution from a possessor of the pornographic image even though `none of [the victim's] claimed losses flowed from any specific knowledge about [the possessor] or his offense conduct,’ so long as the victim's losses are shown to have been the result of trafficking in the image in general. Paroline v. United States, supra.  In Paroline, `the victim's costs of treatment and lost income result[ed] from the trauma of knowing that images of her abuse [were] being viewed over and over,’ Paroline v. United States, supra, and the evidence discussed by the Court indicates the restitution sought by the victim related to the `major blow to her recovery’ which occurred when she learned at age seventeen that her image was being viewed on the Internet, by individuals such as Paroline. Paroline v. United States, supra. By contrast, in the case before us, there simply was no evidence presented of income lost or treatment costs incurred, or of income that will be lost or costs that will be incurred, as a result of Tarlo or others viewing and possessing the daughter's image.
State v. Tarlo, supra.
The court also pointed out that
[s]ignificantly, the Paroline Court noted that a victim's `losses sustained as a result of the initial physical abuse’ are to be `disaggregat [ed]’ from `aggregate losses, including the costs of psychiatric treatment and lost income, that stem from the ongoing traffic in her images as a whole.’ Paroline v. United States, supra. Again, here the mother testified only as to the loss of income resulting from her husband's initial abuse of her children, including her daughter, and provided no testimony of losses `stem[ming] from’ Tarlo or others viewing and possessing her daughter's image. Her testimony only supports the conclusion that she would have incurred all the financial losses to which she testified at the restitution hearing even if no one had ever viewed or possessed an image of her daughter via computer.
State v. Tarlo, supra.
The court then explained that,
[n]evertheless, the State argues that Tarlo's conduct was a substantial factor in the loss of both the mother's and her husband's income. According to the State, this causal nexus was established because

`Tarlo's role as a consumer [of the child pornography] retrospectively encouraged the creation and distribution of the victim's sexually explicit images by [the mother's] husband who believed there would be consumers like Tarlo out there, so he created the images and put them on the internet for those consumers to enjoy. (Emphasis added.)’

The court commissioner, and by adoption the circuit court, rested its decision on similar reasoning, which we find flawed. It may be that when he produced the child pornography, the husband believed, based on his prior Internet experience, that the images eventually would be circulated on the Internet and viewed by other persons. It may also be that this belief contributed to his decision to produce the child pornography, which production resulted in his arrest, imprisonment, and loss of employment. It cannot be said, however, that Tarlo's actions, which occurred after the husband produced the pornography, caused the husband to produce it. Indeed, there is no evidence whatsoever to suggest the husband would not have produced the pornography if Tarlo or the others had not subsequently viewed and possessed it.
State v. Tarlo, supra (emphasis in the original).
The court then articulated its holding in the case, explaining that the
restitution statute places on the victim the burden of proving that any losses sustained were “a result of a crime considered at sentencing.” Wis. Stat. § 973.20(14)(a). A `result’ of a crime follows from the commission of the crime; the result does not precede the crime. See Result, BLACK'S LAW DICTIONARY (10th ed.2014) (defining `result’ as `[a] consequence, effect, or conclusion,’ `[t]hat which is achieved, brought about, or obtained, esp. by purposeful action,’ and `t]o be a physical, logical, or legal consequence; to proceed as an outcome or conclusion’); Result, WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1993) (defining `result’ as `to proceed, spring, or arise as a consequence, effect, or conclusion’); see also Paroline v. United States, supra (`[T]o say one event proximately caused another . . .  means the former event caused the latter.
(emphasis added)).
Child pornography is a scourge upon children, families, and our nation. Nevertheless, courts still must make decisions based upon evidence presented. In this case, the mother failed to meet her burden of proving she incurred any losses as a result of Tarlo's conduct; she only presented evidence she incurred losses as a result of her husband's conduct of producing the child pornography. Accordingly, the restitution order was in error, and we remand this matter to the circuit court to enter an amended judgment of conviction vacating the restitution award.
State v. Tarlo, supra (emphasis in the original).
If you would like to read the Supreme Court's opinion in Paroline, you can find it here.