Thursday, September 21, 2017

First Degree Perjury, Attempt to Influence a Public Servant and Tracing IP Addresses

This post examines a recent opinion from the Colorado Court of Appeals – Division III: People v. Garrison, 2017 WL 3431820 (2017). The court begins the opinion by explaining that the
common knowledge and experience of an ordinary person have become one marker of the boundary separating lay from expert testimony. This case involves lay witness testimony about e-mail. So, one might wonder whether this ubiquitous person would be aware that

·       the record of each e-mail transmission includes an Internet Protocol (IP) address from which the transmission initiated
·       the IP address can be linked to an Internet service provider (ISP); and
·       in turn, the ISP can often trace the IP address to the physical address of a particular ISP customer?
People v. Garrison, supra.
The court goes on to explain that
[d]espite the dramatic increase in use of e-mail, we join the few jurisdictions to have addressed this question and conclude that such a person would not be aware of these facts, at least in the combination used by the prosecution to explain how the investigation began with charges against the victim, but led to evidence of criminal acts by defendant, Lawson P. Garrison. And because this information was the glue that held much of the prosecution's case against Garrison together, he is entitled to a new trial on the charges of first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant.
People v. Garrison, supra.
The opinion then explains that
[t]urning to Garrison's second issue, the trial court did not abuse its considerable discretion in denying him a continuance of the trial. And because the charges of possessing a defaced firearm and felony menacing were unrelated to IP addresses, his conviction by a jury on those charges stands affirmed.
People v. Garrison, supra.
The Court of Appeals then outlined the “facts and procedural background” in the case:
According to the prosecution's evidence bearing on the two issues raised on appeal,1Garrison had an affair with the victim's wife. After the affair ended, Garrison and his wife set up through Google a Gmail account in the victim's name. Using that account, they began sending themselves derogatory and threatening e-mails.

Based on these e-mails, Garrison and his wife made several police reports against the victim and provided related documents to the police. They sought a protection order against the victim and testified about the e-mails at the hearing. The police filed charges against the victim.

Seeking evidence to support these charges, the police obtained a subpoena concerning the Gmail account. In response, Google identified two IP addresses. The police associated these addresses with two ISPs. After being subpoenaed, the ISPs identified one IP address as the home of Garrison's wife, where Garrison lived at the time, and the other as her employer. When interviewed by police, both Garrison and his wife denied having set up the account.

Even so, all charges against the victim were dropped, the investigation focused on the Garrisons, and they were charged. Garrison's wife pleaded guilty to several charges. Garrison elected to go to trial but he did not testify. His theory of defense was that the victim had hacked into his home computer and the server at his wife's workplace, changing the IP addresses used to access the Gmail account. This process is called `spoofing.
People v. Garrison, supra.
The Court of Appeals then took up Garrison’s argument that the trial court judge abused his or her discretion by “refusing to grant Garrison a continuance.”  People v. Garrison, supra. The court began its analysis of Garrison’s argument concerning this issue by explaining that
[i]f the trial court erred in denying Garrison a continuance and he could show prejudice, he would be entitled to a new trial on all charges. So, we begin with this contention.

On the first day of trial—March 3, 2015—defense counsel renewed her motion for a continuance that she had made at the trial readiness conference four weeks earlier. She conceded that Garrison `d[id] not want a continuance,’ but argued that she was not prepared for trial because the case required `specialized computer knowledge,’ she did not `get approval for [an] expert until January 30th,’ and she had `only met with [the expert] one time.’
People v. Garrison, supra.
The opinion goes on to explain that the
            prosecutor opposed the continuance for the following reasons:

This is one more delay causing one more frustration and anxiety from the victims, from the police officers that I have spent the last, you know, two weeks scheduling and going though all the reports. Again over a thousand pages of reports and discovery. This is the second time, well, that I prepped for this trial in its entirety.
As to Garrison's expert witness, the prosecutor argued that he had `in my receipt what the expert is going to testify to so apparently he's prepared to testify.’

The trial court denied the motion. The court explained that `[t]he procedural history of this case includes a lot of motions to continue’ and the `risk of prejudice that has been argued by [defense counsel] can be managed by the court.’ Specifically, the court said that Garrison's expert would be allowed to testify even though he had not been timely endorsed.
People v. Garrison, supra.
The Court of Appeals then began its analysis of the issues in the case by explaining that
[a] trial court's denial of a motion for a continuance is reviewed for an abuse of discretionPeople v. Faussett, 2016 COA 94M, ¶ 12, ––– P.3d ––––.  `A trial court abuses its discretion in denying a motion to continue if, under the totality of the circumstances, its ruling is manifestly arbitrary, unreasonable, or unfair.’ Id. (citation omitted).

 `No mechanical test exists for determining whether the denial of a request for a continuance constitutes an abuse of discretion.’ Id. (citation omitted). Rather, `the answer must be found within the circumstances of each case, particularly in the reasons presented to the trial judge at the time of the request.’ People v. Roybal, 55 P.3d 144, 150 (Colo. App. 2001).
People v. Garrison, supra.
The Court of Appeals then took up Garrison’s argument as to how the trial court judge dealt with his request for a continuance:
Garrison first argues that the trial court should have granted a continuance because his new trial counsel “inherited the case just two months prior and was running an entirely different defense than the prior public defender.” But Garrison fails to explain why the `different defense’ could not have been developed earlier, such as if it had arisen from newly discovered evidence.

In any event, the record shows that prior defense counsel was well aware of the technical aspects of this case. When that counsel first requested and received a continuance on February 3, 2014, he argued that there was `[p]retty complex internet legal service that needs be done before I can even subpoena the materials that I'm going to need to prepare for trial.’ Later, on May 5, 2014, defense counsel requested and received another continuance because he had `received 10 disks . . . which includes Google search warrant executions, videos, computer forensic information. And that's all information that is beyond the scope of my expertise.’

At that time, defense counsel also advised the court, `I have a request in for approval for an expert to help me review all of the computer forensics in this case.’ True, successor counsel later told the court that the expert had not been approved until January. But this delay of over seven months must be attributed to the defense.
People v. Garrison, supra.
The opinion then explains that
[a]s well, the record supports the trial court's finding that since the original trial date of April 1, 2014, numerous continuances had already been granted—three of which were at Garrison's request. See People v. Casias, 2012 COA 117, ¶ 21 n.3, 312 P.3d 208 (There was no abuse of discretion where `the case had been pending for over two and a half years,’ and `the court had already granted defendant two continuances.’).

Still, Garrison argues that a continuance should have been granted because this was his new counsel's first request. But Garrison cites no authority, nor have we found any in Colorado, that prior continuances are disregarded once new counsel has been appointed. To the contrary, in People in Interest of J.T., 13 P.3d 321, 322 (Colo. App. 2000), the division upheld denial of a continuance, even though new counsel had been appointed `three weeks before,’ because `the case had been pending for over six months and had been previously continued twice at [defendant's] request.’

Undaunted, Garrison argues that a continuance was needed because his new counsel was not prepared for trial. And during the trial, his counsel repeatedly sought a continuance on this basis. But the record belies this argument. It shows that Garrison's counsel `gave an opening statement; examined and cross-examined witnesses’ extensively, including the police officers who testified about IP addresses, as discussed below; `preserved objections to evidence; gave significant input on jury instructions; and presented a lengthy closing argument.’ People v. Alley, 232 P.3d 272, 274 (Colo. App. 2010) (upholding denial of a continuance).

            For these reasons, we discern no abuse of the court's discretion.
People v. Garrison, supra.
The court goes on, in what U.S. law refers to as “dicta,” to explain that
[f]urther, even if the trial court abused its discretion, to obtain a reversal, Garrison must also `demonstrate actual prejudice arising from denial of the continuance.’ People v. Denton, 757 P.2d 637, 638 (Colo. App. 1988). But the prejudice argued by Garrison involves only charges related to the IP testimony:

`After the motion to continue was initially denied, the only option left was to present a significantly hampered defense with a blind expert and without the ability to understand the technological intricacies of computer hacking, spoofing and how to find evidence of hacking or spoofing.’

He does not even suggest that the continuance denial caused prejudice related to his convictions for possessing a defaced firearm and felony menacing. Thus, because we have given Garrison a new trial on his convictions related to the IP testimony, as discussed in the next section, no prejudice has occurred.

In sum, we discern no basis for reversal in denying Garrison's motion for a continuance.
People v. Garrison, supra.

The Court of Appeals then took up Garrison’s next argument, which was that the trial court judge abused his “discretion by allowing police officers, testifying as lay witnesses, to testify about tracing IP addresses.”  People v. Garrison, supra. The court began its analysis of this argument by explaining that
[b]efore trial, defense counsel noted her `concern about the . . . type of evidence that the [prosecution] is going to attempt to introduce via lay witnesses, being police officers.’ She asked that `police officers not be able to give expert testimony’ on computer evidence. The prosecutor responded that the police officers' testimony did not require any specialized knowledge because it involved `get[ting] a warrant and compar[ing] two sets of data ... which they do all the time.’ The trial court declined to rule, explaining that it would `listen to the evidence’ and `handle it as it happens.’

Mark Garcia, one of the investigating detectives, was the first officer to take the witness stand. Testifying as a lay witness, he explained that during the investigation, warrants were issued for `emails, facebook messages, and stuff like that.’ He added,

`You can get the actual emails, text messages if they are still there and have not been destroyed, as well as you can get the internet protocol address on where the messages are coming from or who set up the account. When you go online, you set up an account, you fill out all the documents.’

The trial court overruled defense counsel's objection that Garcia was giving expert testimony.
People v. Garrison, supra.
The opinion goes on to explain that
[n]ext, Garcia testified:

`We sent Google a production of records for the internet protocol address. We provided Go[o]gle with the email address of [the Gmail account] and email addresses that basically were being used. Go[o]gle then provided the internet protocol addresses. They provided two. And what we get is just numbers. And with the numbers that [sic] we did the research....’

Again, the trial court overruled defense counsel's objection.
People v. Garrison, supra.
The opinion then goes on to explain that
Then, Garcia took the investigation to its culmination:

Q. And you have said there was two numbers. So they were associated with that [Gmail] account?
A. Yes.
Q. And in your investigation, did you determine where those two IP addresses belong?
A. Yes.
Q. Who belonged to those IP addresses?
A. Yes.
Q. What did you determine in your investigation?
A. One belonged to Century Link and another belonged to Comcast.
Q. And did you review the investigation as it pertains to the IP addresses for those two?
A. Along with Officer Calloway.
Q. And what did that investigation reveal? Were you able to determine based on your investigation with Comcast and Century Link who owned those IP addresses?
Defense counsel: Objection. I renew my objection.
The Court: Overruled. There's been an adequate foundation in the context of the investigation for this officer to testify. It doesn't step over into expert testimony in my view. Overruled. You may answer that question.
A. Yes, we completed a production of records search warrant and sent them to the companies requested on who owns the IP addresses.
Q. And what was the result of that investigation?
A. One address returned back to [Garrison's wife's home].... And the other one returned back to her employer....
People v. Garrison, supra.
The opinion then explains that Officer Charles Calloway
testified next, also as a lay witness. By now, the trial court had given defense counsel a standing objection. According to Calloway:

`Q. You got an IP address, a couple of IP addresses that you said were associated with the [Gmail account]. You said that you sent those to your computer guys, investigation folks?
A. Yes.
Q. And then what is the next step in the process?
A. ... those IP addresses came to Century Link and Comcast which I sent search warrants to both Century Link and Comcast.
Q. What were the results of those search warrants?
A. One came back to the address [of Garrison's wife and the other to her employer]....’

At the end of Calloway's testimony, the trial court asked him a juror's question: `Regarding the warrant to Google, what specific information was requested? Was there just a date range only requested or specific account names only?’ Calloway answered:

`The warrant to Google what I was requesting is all pretty much everything I can get from Google: The names, log in times, log out times. Anything dealing with that account. And what they produced back is to gave [sic] me a disk which had a lot of information on there. And one of the sheets on the paper were IP addresses. And those had—there were two distinct IP addresses.... [B]ut those two IP addresses it was determined came from singularly from Century Link and Comcast.’

`And the thing with Google when people create a[n] account with Google like any [of] us can go on Google and create an account, that's like a public account type. So what they give you is an IP addresses back. And then from there you see who is the provider. Century Link and Comcast. And so another warrant had to be done that way to find out where those locations are coming from. Because the IP address is as it says like an address of that computer specific on there. So that's the information I got back.’
People v. Garrison, supra.
At this point, the opinion explains that the “`sheets of paper’ to which Calloway referred included the following undifferentiated character string’”, which I am not including in this post due to formatting issues. People v. Garrison, supra.
The Court of Appeals then began its analysis of the fact, law and arguments in this appeal, explaining, initially, that
[a]s always, a trial court's evidentiary rulings—including those involving expert testimony—are reviewed for an abuse of discretion. People v. Howard-Walker, 2017 COA 81M, ¶ 44, ––– P.3d ––––. The trial court abuses its discretion if, among other things, its decision `is based on a misunderstanding or misapplication of the law.’ People v. Thompson, 2017 COA 56, ¶ 91, ––– P.3d ––––.

When an abuse of discretion occurs, `[w]e review nonconstitutional trial errors that were preserved by objection for harmless error.’ Howard-Walker, ¶ 44 (citation omitted). Evidentiary rulings involving experts are reviewed as such errors. Under this standard, reversal results only if the error `substantially influenced the verdict or affected the fairness of the trial proceedings.’ Id. (citation omitted).
People v. Garrison, supra.
The opinion then explains that Colorado Rules of Evidence Rule 701 “governs admission of lay testimony” and provides as follows:
[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
People v. Garrison, supra.
The court then explained that after Garrison’s trial, the Colorado Supreme Court “`clarified the standards that distinguishes lay testimony from expert testimony.’” People v. Garrison, supra. It explained that the court should
`[t]ake the standard first. To determine `whether testimony is lay testimony under Colorado Rule of Evidence 701 or expert testimony under Colorado Rule of Evidence 702, the trial court must look to the basis for the opinion.’ Venalonzo v. People, 388 P.3d 868 (Colorado Supreme Court).

Then consider its reasoning. To distinguish between lay and expert testimony, `the proper inquiry is not whether a witness draws on her personal experiences to inform her testimony; all witnesses rely on their personal experience when testifying.’ ¶ 22. Rather, `the nature of the experiences that could form the opinion's basis ... determines whether the testimony is lay or expert opinion.’ So, expert testimony `is that which goes beyond the realm of common experience and requires experience, skills, or knowledge that the ordinary person would not have.’ Id.

The supreme court recognized that this `distinction can be a difficult one.’ Id. at ¶ 24. To be sure, `[t]his is particularly the case when the witness is a police officer.’ Howard-Walker, ¶ 51.
People v. Garrison, supra.
The Court of Appeals went on to analyze how it should decide what, if anything, the usual lay person can be expected to know about IP addresses and email transmission. People v. Garrison, supra. It explained that two of the cases the Attorney General cited in the prosecution’s brief
persuade us that the concept of an e-mail transmission including an IP address, which can be linked to an ISP, and in turn traced to the physical location of a particular ISP customer, is not within the knowledge or experience of ordinary people. Thus, because some of the police testimony on direct examination was based on particular experience and specialized knowledge within the scope of [Colorado Rule of Evidence] Rule 702, we conclude that the trial court abused its discretion in admitting this portion of the testimony as lay testimony.9 See Colorado Rule of Evidence] Rule 701(c).
People v. Garrison, supra.
The court therefore went on to hold that
we conclude that Garrison is entitled to a new trial on his convictions for first degree perjury, attempt to influence a public servant (three counts), and conspiracy to attempt to influence a public servant, all of which turned on the e-mails which the Garrisons presented as having come from the victim.
People v. Garrison, supra.

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