Fraud, Discovery and the Motion for Return of Property

After being indicted for mail fraud, wire fraud and conspiracy to commit mail and/or wire fraud in violation of 18 U.S. Code §1349, Barrett Byron Staton filed a motion for return of property under Rule 41(g) of the Federal Rules of Criminal Procedure.  U.S. v. Staton, et al., Indictment, 2011 WL 8184554 (U.S. District Court for theEastern District of Pennsylvania 2011). 

As I’ve explained in other posts, when someone files a Rule 41(g) motion, they are not asking to have evidence suppressed, exactly.  They are, instead, asking the court to return their property to them because it was, or so they argue, seized improperly.  As I’ve also noted, if the court grants the motion, it must return the property to its owner.

While we’re not directly concerned with the facts that led to the filing of charges against Staton and his co-defendants, Matthew Staton and William Haken, Jr., I think it’s useful to know how the prosecution arose:

Essentially, (collectively, `Defendants), would use various office copier brokerage businesses (`Businesses’) to entice small businesses and non-profit organizations (`Customers’) into executing new office copier leases by making attractive promises. Defendants did not fulfill these promises.

They were supposed to use the payments received from the financing companies as a result of the new leases for the Customers' benefit (e.g., to pay off their office copier leases). However, the payments were instead used for personal expenses. When Defendants became overwhelmed with complaints from the Customers, they would shut down the Business, only to reopen it under a different company name, and at times, under a nominee owner. Defendant Barrett Byron Staton also used the Businesses to obtain financing for personal purchases that included luxury vehicles. . . .

U.S. v. Staton, supra.  (From here on, “Staton” refers to Barrett Byron Staton.)

During the investigation, FBI agents and other officers executed a search warrant at Staton’s home, where they seized a computer, and at a self-storage unit, from which they seized “[c]ompact disks” and “`various other documents’”.  U.S. v. Staton, supra.  Several years later (the investigation apparently was in process from 2004 to 2008), they executed another warrant at Staton’s home and seized

(1) a Grey Averatec Laptop, 3260 series; (2) a Dell CPU, Serial No. X–10–60256–00045–599–844–596; (3) a Dell CTU, Serial No. CP 384–00144–348–171–542; (4) a Dell CPU, Serial No. BSB 481–J4BG1C6H6C6–KPUFR–FCR4F–2MXFB; (5) `Various CD's’; and (6) a `Number of USB units.’

U.S. v. Staton, supra. 

FBI computer experts examined the “computer hard drives and other electronic devices” that were seized during the investigation and found they “documents, including internal office memoranda concerning, and business records showing, fraudulent deals and e-mails.”  U.S. v. Staton, supra. Since the prosecution intends to use these documents at Staton’s trial, they are a target of “discovery,” i.e., the process by which both sides can get access to evidence the other side intends to use at trial. 

After Staton was indicted, the prosecution invited his lawyer to the U.S. Attorney's Office in Wilmington, Delaware to review the evidence. U.S. v. Staton, supra. In March of 2012, Staton went to the office to review the evidence.  U.S. v. Staton, supra. He and his lawyer “`were shown the computer hard drives and other electronic media devices’” noted above. U.S. v. Staton, supra. At the end of the review, the prosecution “offered to copy any paper documents or computer data” they asked for. U.S. v. Staton, supra.

On April 26, 2012, Staton asked for an “imaged copy of the seized materials” and on April 27, the prosecution told Staton’s lawyer that “if he wanted an imaged hard drive containing data of the material seized during the 2004 and 2008 searches, he would have to send the Government a hard drive.” U.S. v. Staton, supra. 

On May 2, Staton’s lawyer provided two hard drives. U.S. v. Staton, supra. On May 10, the prosecution gave Staton’s lawyer “imaged hard drives containing the data of the items seized during the 2004 and 2008 searches.”  U.S. v. Staton, supra.  It also gave him “a copy of the word search used by the Government's computer expert.”  U.S. v. Staton, supra.

On May 11, Staton’s lawyer “informed the Government that he and [Staton] could not access the data on these imaged hard drives.” U.S. v. Staton, supra. His email said “the imaged hard drives did not have accessible materials on them and that while `[t]here are files, [ ] you can't get into the files. There is also gibberish which I don't understand.’”  U.S. v. Staton, supra. 

The lawyer offered to bring the prosecution one of the hard drives for inspection, noting that he was sending the other hard drive to Staton’s expert so he could  Counsel noted that he was forwarding the other hard drive to Defendant's expert so he could “have access and physical custody over it.” U.S. v. Staton, supra. Staton’s lawyer also asked for “`[a]ny guidance [the Government] and [its] technical people could give us.’”  U.S. v. Staton, supra.

On May 17, the Court held a status conference on this issue. U.S. v. Staton, supra. After the conference, the Government gave Staton “three manuals produced by the Department of Justice to show [him] and his computer experts how to download and use free forensic software available on the Internet.” U.S. v. Staton, supra. ( Id.) The software would let him “access . . . the Internet.” U.S. v. Staton, supra. ( Id.) It would also allow him “access to the data stored on the imaged hard drives.”  U.S. v. Staton, supra.

Since Staton’s lawyer claimed “he still could not access the data on the imaged hard drives”, the prosecution, on May 24, gave him “a Government-issued laptop, pre-loaded with the free forensic software, that permitted [Staton] to view the data on the imaged hard drives.” U.S. v. Staton, supra.  It also told the lawyer that “he would still need to download some software programs, such as Microsoft Word or Excel, in order to view the data.”  U.S. v. Staton, supra. 

Staton’s lawyer “contacted several information technology professionals to determine the availability and accessibility of such software programs”, but Staton claimed that “even if he were to obtain these programs, `there is no guarantee at this point in time that the programs obtained will access all the files on the computers if all of the appropriate programs are not obtained.’” U.S. v. Staton, supra.   He therefore filed his Rule 41(g) motion for return of property “to `avoid that exercise’ of obtaining the necessary software.”  U.S. v. Staton, supra.  

On June 4, in response to the Motion, the prosecution met with Staton’s lawyer and installed “Microsoft Office software (e.g., Microsoft Word, Excel and Powerpoint) onto the Government-issued laptop.” U.S. v. Staton, supra. The prosecution “confirmed that the forensic software, in conjunction with the Microsoft Office programs, properly opened the data on the imaged hard drives.” U.S. v. Staton, supra. 

The prosecution could not access “the Peachtree data files, since it did not possess the software required for opening those files.”  U.S. v. Staton, supra.  (The opinion notes that these files “related to an accounting software program” Staton used during the time frame at issue in the indictment. U.S. v. Staton, supra.) The prosecution did install “trial Peachtreee software on the laptop”, but Staton “still could not access the Peachtree data files on the imaged hard drives.”  U.S. v. Staton, supra.  

On June 6, Staton’s lawyer told the prosecution they had downloaded the “Peachtree data files onto a different computer”, but the “free trial . . . installed on the Government-issued laptop did not allow for access to those files.” U.S. v. Staton, supra. In his email, the lawyer noted that the “free trial . . . does not authorize to go back into pre-existing Peachtree documents.” U.S. v. Staton, supra.   

On June 7, the prosecution “bought new software that permitted access to the Peachtree files.”  U.S. v. Staton, supra.  It notified Staton’s lawyer and offered him two options: (i) come to the U.S. Attorney's Office in Wilmington “as soon as practical to inspect the Peachtree files”; or (ii) buy the same software the prosecution bought and let the prosecution install it onto “Staton’s Government-issued laptop to ensure he had access to this data.” U.S. v. Staton, supra. 

The “estimated cost” of the software was $569.00. U.S. v. Staton, supra.  On June 8, Staton indicated that his lawyer would “inspect the Peachtree files on June 9  at the U.S. Attorney's Office.” U.S. v. Staton, supra.  

After outlining all this, the district court judge who has the case began his ruling on Staton’s motion for return of property.  U.S. v. Staton, supra.  He noted that Staton made several arguments for why the property should be returned:  (i) “none of the seized items are contraband” (i.e., things it is illegal to possess, like drugs or child pornography); (ii) returning the property will let Staton review the data without the need for “government intervention” or to hire “outside personnel” to access the data; (iii) the prosecution “no longer needs . . these items” since it has examined them and copies the files it needs; and (iv) the prosecution has “had “`more than a reasonable time within which to derive from the items seized that which it sought.’”  U.S. v. Staton, supra.  

The prosecution, in turn, argued that (i) it has provided Staton with the original imaged hard drives plus “`a laptop computer, forensic software to review the computer data, access to other specialized software programs, and personalized instruction from government personnel on how to operate these software programs’”; and (ii) “has a reasonable need” to retain the property because the items contain evidence . . . for its prosecution in this case, and it needs to `preserve the integrity of the computer data contained inside these items.’” U.S. v. Staton, supra.  

The judge found that Staton had “not met his burden of proving why he is entitled to the return of his property at this juncture.”  U.S. v. Staton, supra.  He noted that since the prosecution “intends to use this evidence to prove its case at trial, its need for these materials remains ongoing in this case and the Motion will be denied.”  U.S. v. Staton, supra.  The judge also explained that if the prosecution were ordered to return the

materials it seized in 2004 and 2008 prior to trial, [Staon] could destroy the data contained therein or create new data, then claim bad faith retention by the Government. Moreover, by maintaining custody and control over the materials that were seized in 2004 and 2008, the Government can ensure that the chain of custody for the data contained in these materials is preserved for trial.

U.S. v. Staton, supra.  

The judge also found that, based on the facts outlined above, the prosecution had “met, and exceeded, its obligations to allow [Staton] access to the materials.”  U.S. v. Staton, supra.  He explained that this is not a case in which the prosecution has

hindered [Staton’s] access to the materials . . . or has only allowed access to the materials at the eve of trial. The facts clearly point to the contrary. The Government has made these materials available to the defense for at least the last five months. It is [Staton] who has not taken advantage of the Government's offers of access to these materials. 

Accordingly, the circumstances in this case cannot support a grant of a Motion for Return of Property.

U.S. v. Staton, supra.  

(In a footnote, the judge says Staton “presently lives in Florida” and claims “family obligations prevented him from coming to Wilmington to view” the materials with his lawyer.  U.S. v. Staton, supra.)

So, as must be obvious, the judge denied Staton’s motion for return of property. U.S. v. Staton, supra.  

  

Text Messages and “Invasion of Private Affairs”

After being charged with attempted possession of heroin in violation of Washington’s Revised Code § 69.50.407 (attempt) and §69.50.4013(1) (possession of a controlled substance), Shawn D. Hinton filed a motion to suppress evidence. State v. Hinton, __ P.3d __, 2012 WL 2401673 (Washington Court of Appeals 2012).

More precisely, he moved to suppress “`any and all evidence obtained as a result of the search of the cell phone taken from Daniel Lee.’”  State v. Hinton, supra. To understand why that search mattered to Hinton, it’s necessary to understand how the case arose:

On November 3, 2009, when Detective Kevin Sawyer arrived to begin his shift, several officers gave Sawyer an iPhone they had seized from Daniel Lee, who had been arrested earlier that day on drug charges.  . . . [W]hile Sawyer had the iPhone in his possession, he heard a `ding’ from the iPhone, indicating it had received a new text message. . . . 

Sawyer picked up the iPhone and viewed the following message, which appeared in its entirety on the iPhone's screen: `Hey whats up dogg can you call me i need to talk to you.’ . . . The text message was from `Z–Shawn Hinton.’ . . . Sawyer knew Hinton from past arrests.

Sawyer responded to Hinton's text message using Lee's iPhone. The following text message exchange occurred:

`[Sawyer]: Can't now. What's up? . . .

[Hinton]: I need to talk to you about business. Please call when you get a chance. . . .

[Sawyer]: I'm about to drop off my last. . . .

[Hinton]: Please save me a ball. Please? I need it. I'm sick. . . .'

Through a series of additional text messages, the men agreed to meet for a drug transaction in a grocery store parking lot. Sawyer contacted Hinton in the parking lot and arrested him. After the arrest, Sawyer called the phone number associated with Z–Shawn Hinton in Lee's iPhone, and Hinton's cell phone rang.

State v. Hinton, supra.

The Court of Appeals explained that the “basis of the officers' seizure of Lee's iPhone” was not clear from the record, but that did not matter because whether it was “lawfully seized is not at issue in this case.”  State v. Hinton, supra.  It also noted that (i) to find “the phone number associated with Z–Shawn Hinton,” Sawyer had to “navigate to the contacts folder on Lee's iPhone” and (ii) it was “unclear from the record when Sawyer accessed the contacts folder to retrieve Hinton's phone number.”  State v. Hinton, supra.  And the court also noted that at the hearing on the motion to suppress, Sawyer testified that “a `ball’ is `a drug weight’ equivalent to `approximately 3.54 grams’ and `sick’ is `a drug term’ that describes `when people are coming off the high and . . . looking to get some more.” State v. Hinton, supra. 

In his motion to suppress, Hinton argued that Sawyer’s actions violated “Washington Constitution, article I, section 7 and the 4th Amendment [to the U.S. Constitution].”  State v. Hinton, supra.  The prosecution argued, in response that “Hinton “`did not have a legitimate expectation of privacy in the text messages.’” State v. Hinton, supra. 

As I’ve noted in earlier posts, the 4th Amendment creates a right to be free from “unreasonable” searches but does not apply if law enforcement conduct does not result in a “search.”  As I’ve also explained, under the U.S. Supreme Court’s decision in Katz v. U.S. 389U.S. 347 (1967), searches violate a “reasonable expectation of privacy”, which is why the prosecution focused on that issue in its response to Hinton.  As I’ve also explained in earlier posts, to have such an expectation one must (i) believe the place or thing is “private” and (ii) society must accept that belief as objectively reasonable.

The Court of Appeals began its analysis of Hinton’s argument under the Washington state constitution.  As Wikipedia notes, every U.S. state has its own constitution.  So Hinton is moving to suppress under both the federal 4^th Amendment and state law.

Here, Hinton argued that he “had a reasonable expectation of privacy in the text message he sent to Lee's iPhone.”  State v. Hinton, supra.  The court found it was “important” that Hinton was “arguing a privacy interest in another's electronic device, not his own.”   State v. Hinton, supra.  It then analyzed his argument under both the state and federal constitutions.

It began with Article I § 7 of the Washington Constitution, which states that “`[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.’”

State v. Hinton, supra.  The court explained that this provision protects a person’s

home and private affairs from warrantless searches. . . . It is well settled that article I, § 7 affords qualitatively different -- and potentially broader -- protections than those provided by the 4th Amendment to the U.S. Constitution. . . . But merely holding that a given state constitutional provision affords enhanced protection in a particular context does not necessarily lead to the same result in a different context. 

State v. Hinton, supra.  As I’ve explained in earlier posts, a state constitution can’t provide less protection than the 4^th Amendment but it can provide more.

The Court of Appeals noted that in dealing with a motion to suppress under Article I § 7, it uses a “two-step analysis”:  First, it decides if the “State has intruded into a person's private affairs.” State v. Hinton, supra. If it finds the state has done this, the court then determines “whether the authority of law required by article I, § 7, justifies the intrusion, which is satisfied only by a valid warrant, limited to a few jealously guarded exceptions.”  State v. Hinton, supra.  It noted that “[v]oluntary exposure by a defendant is relevant to our inquiry and can negate an asserted privacy interest.”  State v. Hinton, supra.

After analyzing the facts in this case, the Court of Appeals found that Hinton’s Hinton's “text messages to Lee's iPhone are not Hinton's private affairs for purposes of article I, § 7”, for two reasons.  State v. Hinton, supra.  The first was that there “is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person's iPhone.”  State v. Hinton, supra.  (To analyze an Article I § 7 challenge, a court must consider state statutes, laws and case law support the privacy interest being asserted by a defendant.  State v. Hinton, supra.)

The other reason was that case law from another division of the Court of Appeals established a “distinction in article I, § 7 jurisprudence between when a governmental officer intercepts a message transmitted from the sender to the recipient and when a governmental officer views a message received by a third party.”  State v. Hinton, supra. In State v. Wojtyna, 70 Wash. App. 689, 855 P.2d 315 (Washington Court of Appeals 1993), officers seized a drug dealer’s pager and monitored its incoming calls; based on what they learned, a detective called one of the incoming numbers and arranged to meet the person who called (Wojtyna) for a drug deal.  State v. Wojtyna, supra.

The court held that the police violated neither the Washington Constitution or the 4^th Amendment by seizing “`a number sent to and received by a third party which happened to be Wojtyna's.’” State v. Wojtyna, supra (emphasis in the original). It noted that by “transmitting his number into a pager,” Wojtyna assumed the risk that it would be received by whomever was in possession of the pager or that its owner would disclose the contents to police. State v. Wojtyna, supra.  So, since the “confidentiality of the transmission was uncertain”, it was not “private” under either Article I § 7 or the 4^th Amendment. State v. Wojtyna, supra.

This court found that the Wojtyna applied here:  “Hinton transmitted messages to a device . . .over which he had no control. . . . [H]e voluntarily ran the risk that his messages . . . would be received by whomever possessed the iPhone,” and so “had no control over what that person might do with that message.”  State v. Hinton, supra.  So his text messages were not protected by Article I § 7. State v. Hinton, supra. 

The Court of Appeals basically applied this same analysis to Hinton’s 4^th Amendment argument, noting that he, like Wojtyna,

sent messages to Lee's iPhone, over which he had no control. . . .He ran the risk that whomever possessed the iPhone, whether it be Lee or someone else, would receive his messages. . . .The 4th Amendment does not protect Hinton's ‘misplaced trust that the message actually would reach the intended recipient.’  State v. Wojtyna, supra. 

State v. Hinton, supra. 

Hinton tried to distinguish Wojtyna by arguing that because cell phones can

now `perform[ ] many of the functions of a personal computer,’ an individual who sends a text message to a cell phone has a greater expectation of privacy in that communication than an individual, like . . . Wojtyna, who sends a message to a less sophisticated device like a pager. 

State v. Hinton, supra. 

The Court of Appeals rejected this argument, noting that it is

the individual's decision to transmit a message to an electronic device that could be in anybody's possession -- and not the receiving device's level of technological complexity -- that defeats the individual's expectation of privacy in that communication.

State v. Hinton, supra.

In arguing that “a person has a reasonable expectation of privacy `in e-mails and text messages sent and received from a cell phone’”, Hinton relied on a federal court of appeals’ decision involving emails.  State v. Hinton, supra (citing U.S. v. Warshak, 631 F.3d 266 (U.S. Court of Appeals for the 6th Circuit 2010)).  The Warshak court held that a person “enjoys a reasonable expectation of privacy in the contents of emails ‘that are stored with, or sent or received through, a commercial ISP.’’ U.S. v. Warshak, supra. The Court of Appeals rejected this argument because the Warshak court was concerned with the

legality of the government's request that a service provider intercept a customer's e-mails before the e-mails reached the intended recipient's computer. Here, there was no interception, through the service provider or otherwise. Sawyer simply read the text messages after they were delivered to the intended recipient.

State v. Hinton, supra.

It also found that while Warshak did not help Hinton, “its comparison of e-mails with traditional forms of communication is helpful and we adopt it to hold that text messages deserve privacy protection similar to that provided for letters. State v. Hinton, supra.

As I noted in an earlier post, the U.S. Supreme Court has, since the nineteenth century, held that “sealed mail” is “private” and therefore protected by the 4^th Amendment. The Hinton court noted that courts have “consistently applied the standard for letters to new technology.”  State v. Hinton, supra. It therefore found that “[l]ike letters, a [person] has a privacy interest in messages stored on his or her own cell phone”, which means such messages cannot “be intercepted and searched” by law enforcement officers unless the interception and search comply with the 4^th Amendment. State v. Hinton, supra.

The Court of Appeals therefore found that

[o]n his own iPhone, on his own computer, or in the process of electronic transit, Hinton's communications are shielded by our constitutions. But after their arrival, Hinton’s text messages on Lee's iPhone were no longer private or deserving of constitutional protection.

Accordingly, the trial court did not err by denying Hinton's motion to suppress.

State v. Hinton, supra.

FrostWire, Child Pornography and Distribution

After a jury convicted Robert Eugene Glassgow of receiving child pornography in violation of 18 U.S. Code § 2252(a)(2), he appealed.  U.S. v. Glassgow,  __ F.3d __, 2012 WL 2428428 (U.S. Court of Appeals for the 8^th Circuit 2012).  (As is explained below, he was also charged with possessing child pornography.) On appeal, he made three arguments: (i) the evidence was not sufficient to support the conviction; (ii) the district court judge abused his discretion in allowing the prosecution to introduce images of child pornography into evidence; and (iii) the judge erred in “imposing certain [sentencing] enhancements.” U.S. v. Glassgow, supra.

This is all the opinion says about how the prosecution came about:

A law enforcement investigation of peer-to-peer file-sharing of child pornography led to the seizure of a computer from Glassgow's residence. Glassgow had built the computer; the hard drive had 88 images of child pornography. Glassgow admitted to investigators that he had actually viewed the child pornography found in his shared folder.

He used coded search terms to retrieve some of the pornography through the peer-to-peer program `FrostWire.’ The child pornography images, after being downloaded, were modified and accessed.

Later, Glassgow tried to delete the child-pornography files from the computer, but they remained in unallocated space on his hard drive. These images were offered for distribution via a peer-to-peer network about 84 times in a six-month period in 2008–2009.

U.S. v. Glassgow, supra.

As noted above, Glassgow’s first argument was that the evidence was not sufficient to support a finding of his guilt.  U.S. v. Glassgow, supra.  The Court of Appeals began its analysis of this argument by noting that the

sufficiency of the evidence is reviewed de novo. . . . All reasonable inferences supporting the jury verdict are accepted. . . . The verdict will be upheld if any interpretation of the evidence could lead a reasonable jury to find guilt beyond a reasonable doubt. . . .

U.S. v. Glassgow, supra. 

In arguing that the evidence was insufficient, Glassgow stressed that

three other people had access to the computer (his then-girlfriend and her two daughters). . . . [H]e asserts his conviction is based on speculation. He contends there was insufficient evidence that he `knowingly’ possessed the images of child pornography found on his computer's hard drive. 

U.S. v. Glassgow, supra. 

The Court of Appeals rather cursorily dismissed this argument, noting that Glassgow “confessed, that the child pornography images were offered for distribution, and that 88 images of child pornography were found in unallocated space on his computer (indicating he tried to delete the images).”   U.S. v. Glassgow, supra.  It therefore held that the “reasonable inferences and interpretation of the evidence support the verdict of knowingly receiving child pornography.”  U.S. v. Glassgow, supra. 

Glassgow’s second argument, as noted above, was that the district court judge erred in admitting certain evidence.  U.S. v. Glassgow, supra.  This is basically what he argued:

Although there were files or images or video on the computer hard drives seized by the government, the court allowed certain images to be created and published to the jury. [Special] Agent [Robert] Larsen has viewed thousands of pornographic images and is very familiar with certain series of videos of several young girls who were abused and video taped. . . .

[T]he government was allowed to construct videos and photographs or to copy them from other sources since there were no useable images on the computer found in Defendant's residence. Agent Meinke testified that the only thing remaining on Defendant's computer were thumbnail images that could not have been expanded into a larger picture that could be viewed. . . .

[Glassgow] should not be convicted based upon the display of images and video that were not on [his] computer. All the computer forensic experts could find were tiny images created by the computer, hidden in areas not accessible, which indicated that some file had been on the computer at some time. The government then found similar photos and videos and presented these as evidence.

In the digital age where a five year old can operate photoshop, we need to enforce a higher standard of admissibility for evidence, especially where the elements of the crime and the length of sentence are integral to the items produced.

[Glassgow] has been sentenced for videos and the only videos associated with the case are those viewed by Agent Larsen from his professional collection. There is no way of determining what the videos represented by the thumbnails on [his] computer actually depicted.

Brief of Appellant, U.S. v. Glasgow, 2011 WL 4735188 (2011).

I wish I could outline the prosecution’s argument on this issue, but its brief isn’t include in Westlaw’s entry on this case.  But I think the Court of Appeals’ holding succinctly captures what the government probably argued, in response:

A government expert . . .verified that the images in exhibits 3 through 17 were the actual enlarged images from Glassgow's computer. To the extent Glassgow is challenging the government's exhibit 1 (a DVD compilation of three video clips from a law enforcement database), the SHA–1 values of these videos matched the SHA–1 values of the files offered for distribution from Glassgow's computer.

According to the expert, there was a 99.9999% probability that exhibit 1 contained the same video clips that Glassgow possessed.

U.S. v. Glassgow, supra. 

That brings us to Glassgow’s third argument:  that the judge erred in imposing certain sentence enhancements.  U.S. v. Glassgow, supra.  As I’ve noted in earlier posts, and as Wikipedia explains in detail, sentencing in the federal system is based on a guideline system, in which the severity and nature of the offense, the defendant’s criminal history and certain other factors are used to calculate a base sentence, which the judge can depart from upward (enhance) or downward (reduce). 

Glassgow was convicted of receiving child pornography but the judge enhanced his sentence for distributing child pornography (as well). U.S. v. Glassgow, supra.  U.S. Sentencing Guideline § 2G2.2(b)(3)(F) allows a judge to enhance a sentence if the offender distributed child pornography. 

Glassgow argued that he should not receive the enhancement because “he did not widely distribute the child pornography, create the images, or make any money by distributing them.”  U.S. v. Glassgow, supra.  And the Court of Appeals noted that an enhancement for distribution should not be automatically imposed based on use of a file-sharing program.”  U.S. v. Glassgow, supra. 

In making this argument, Glassgow relied on this Court of Appeals' decision in U.S. v. Durham, 618 F.3d 921 (8^th Cir. 2010) which, as I explained in an earlier post, held that if “a defendant uses a file-sharing program, a fact-finder may reasonably infer he intended to distribute files, unless there is “`concrete evidence of ignorance.’” U.S. v. Glassgow, supra (quoting U.S. v. Durham, supra).

At least according to his brief on appeal, Glasgow

did not argue that he did not have the computer skills to understand how a file sharing program worked. Rather, the evidence clearly indicates that [he] intentionally attempted to avoid distribution. The agents testified that Glassgow created folders to move images into.

By removing the images from the file sharing folder, the images were no longer available for distribution. Other users of the same file sharing software could not access the files. Agent Larsen confirmed this.

Additionally, [Glassgow] deleted all the files from his computer. The reason the jury acquitted him of possession related to his efforts to destroy the images and not make them available for distribution.

Reply Brief of Appellant, U.S. v. Glassgow, 2011 WL 6770291 (2011). 

So, Glassgow argued that his sentence should not have been enhanced for distributing child pornography when he took “affirmative steps” to “avoid distribution”. Reply Brief of Appellant, U.S. v. Glassgow, supra.  The Court of Appeals, though, was not convinced:

Glassgow claims ignorance, contending that he did not intend to distribute the images and was not a sophisticated computer user. Unfortunately, there is no `concrete evidence’ of ignorance.

Glassgow built the computer, and uploaded and downloaded files and programs. He knowingly made files available for distribution. The enhancement for distribution was not imposed merely because Glassgow used a file-sharing program.

U.S. v. Glassgow, supra. 

For these and other reasons, the Court of Appeals affirmed Glassgow’s conviction and his sentence of 188 months’ imprisonment.  U.S. v. Glassgow, supra.  

Cell Phone Call History and Search Incident to Arrest

After being convicted by a jury “of conspiracy to distribute a scheduled II controlled substance” in violation of Colorado law, Donald Eugene Taylor appealed.  People v. Taylor, __ P.3d __, 2012 WL 2045754 (Colorado Court of Appeals 2012). He raised several issues on appeal, but we’re only concerned with one of them.

Taylor argued that the trial court judge erred in “refusing to suppress evidence discovered during a warrantless search of the call history contained in his cellular telephone on his person at the time of his arrest.”  People v. Taylor, supra.  This is how the search, and the prosecution, came about:

On November 20, 2008, undercover officers C.S. and J.W. of the Aurora Police Department were conducting sting operations on the East Colfax corridor. Detective C.S. and Investigator J.W. were patrolling in an undercover police car when they observed [Taylor] making gestures at them consistent with initiating a drug transaction.

The officers approached [Taylor] and Investigator J.W. asked if he `could get a hookup.’ [Taylor] asked, `[H]ook you up with what?’ to which Investigator J.W. replied, `[F]orty hard,’ street slang for $40 worth of crack cocaine. [Taylor said] he did not sell drugs, but he indicated that he could call someone to sell them the drugs. [Taylor] then instructed the officers to park across the street.

The officers observed [Taylor] make a phone call on his cellular telephone, and soon thereafter a female approached and entered the car. Investigator J.W. purchased $40 of crack cocaine from the woman. After the controlled purchase, both [Taylor] and the woman were arrested.

After [Taylor] was arrested, he was searched and his cell phone was seized. One of the arresting officers, Sergeant R., opened the call log history of [his] cell phone, noting a call was recently placed to the woman's phone.

People v. Taylor, supra. 

Taylor was actually charged both with “distribution of a controlled substance and conspiracy to distribute a controlled substance.” People v. Taylor, supra.  The jury convicted him of conspiracy to distribute but deadlocked on the distribution count. People v. Taylor, supra.  “The court dismissed the distribution count, and sentenced defendant to eight years in community corrections.”  People v. Taylor, supra.  

In his motion to suppress Taylor claimed he was “subject to an unlawful search when the police reviewed his cellular telephone's call log without obtaining a warrant.”  People v. Taylor, supra.  The Court of Appeals began its analysis of his argument by noting that

[w]e must defer to the trial court's findings of fact if those findings are supported by competent evidence in the record, but we review the trial court's legal conclusions de novo. . . .  At a suppression hearing, a defendant has the burden of demonstrating that he is entitled to protection under the 4th Amendment

People v. Taylor, supra. 

The court assumed that (i) Taylor “had a reasonable expectation of privacy in his cellular telephone's call history”; and (ii) the officer's “review of the call history constituted a warrantless search within the meaning of the 4th Amendment.”  People v. Taylor, supra.  It noted that other courts "have found a reasonable expectation of privacy in a cellular telephone’s call history.”  People v. Taylor, supra. 

The court then explained that warrantless searches are unreasonable unless they fall under a

specifically established . . . exception to the warrant requirement. City of Ontario v. Quon, 130 S.Ct. 2619 (2010) ( `Although as a general matter, warrantless searches “are per se unreasonable under the 4th Amendment,” there are `a few specifically . . . exceptions” to that general rule.') (quoting Katz v. U.S., 389 U.S. 347 (1967)). . . . `

People v. Taylor, supra. 

It also explained that one specifically established exception to the warrant requirement is

`a search incident to lawful arrest. U.S. v. Robinson, 414 U.S. 218, 224 (1973).  This `allows . . . officers . . . to search an arrestee's person and the area within the arrestee's immediate control.’ People v. Gothard, 185 P.3d 180, 184 (Colorado Supreme Court 2008). . . . [T]he `search require[s] no independent justification, such as a reasonable suspicion or belief the defendant might be armed or in possession of contraband.’ People v. Tottenhoff, 691 P.2d 340, 345 (Colo.1984). . .

People v. Taylor, supra. 

In U.S. v. Robinson, supra, the Supreme Court held that an officer’s decision as to and where

to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the 4th Amendment does not require to be broken down in each instance into an analysis of each step in the search. . . . A custodial arrest . . . based on probable cause is a reasonable intrusion under the 4th Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.

(For another court's take on this same issue, check my prior post.)

The Court of Appeals noted that neither the U.S. Supreme Court nor the Colorado

Supreme Court has directly considered the issue of whether a search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be. We conclude, under the circumstances present in this case, that the search of [Taylor’s] cell phone's call history was a lawful search incident to arrest.

People v. Taylor, supra. 

It noted that several years after it decided Robinson, the  Supreme Court limited the area available for a search incident to arrest “to the arrestee’s person and areas `within the immediate control’ of an arrestee.”  People v. Taylor, supra (quoting U.S. v. Chadwick, 433 U.S. 1 (1977)).  This court then held that a “search of the contents of a defendant's cellular telephone or other personal electronic device is a lawful search incident to arrest.”  People v. Taylor, supra.  In so doing, it relied on the Supreme Court’s decisions in U.S. v. Robinson, supra and in U.S. v. Edwards, 415 U.S. 800 (1974).  The Edwards Court held that officers were “entitled to take from [the defendant] any evidence of the crime in his immediate possession, including his clothing.” U.S. v. Edwards, supra.

It also explained that, under  these and other decisions, a search of the call history of a

cellular telephone on the person of the arrestee is a lawful search incident to arrest. Here, the uncontested evidence at the suppression hearing was that [Taylor’s] cell phone was removed from his person after his . . . arrest. The officer then  searched [its] history to confirm [he] had called the woman who arrived to sell Investigator J.W. the drugs. This search was a lawful warrantless search incident to arrest. 

People v. Taylor, supra. 

It also pointed out that,

applying the narrower view proposed by some courts that officers may not search all data contained in a cell phone, nevertheless the search of the call history of [Taylor’s] cell phone was lawful. See Hawkins v. State, 307 Ga. App. 253, 704 S.E.2d 886 (Georgia Court of Appeals 2010) (`Just because an officer has the authority to make a search of the data stored on a cell phone . . . does not mean he has the authority to sift through all of the data stored on the phone (that is, to open and view all of the sub-containers of data stored therein). Instead, his search must be limited as much as is reasonably practicable by the object of the search.’) (emphasis in the original).

People v. Taylor, supra. 

Having found that the search of Taylor’s call history was a lawful search incident, the Court of Appeals noted that it recognized that “cell phones, tablets, and other personal electronic devices, like computers, are capable of storing and accessing large amounts of personal information, and we are aware of the concerns of other courts regarding searches for information contained in these devices.”  People v. Taylor, supra. 

Having said that, the court agreed with the

practical consideration proposed by Magistrate Judge Torres of the Southern District of Florida, who stated:

`Perhaps the better alternative is to a find a technological answer to this technological problem. We don't have the answer, but a good place to start is by a user password protecting the electronic device. Short of that practical step, the solution does not lie with a revamped analysis of the search incident to arrest doctrine.’

People v. Taylor, supra (quoting U.S. v. Gomez, 807 F.Supp.2d 1134 (U.S. District Court for the Southern District of Florida 2011)). 

And the Taylor court reiterated that it was holding that “the call history stored in a cell phone . . . found . . . on his person . . . is not beyond the scope of a search incident to arrest”, which meant “[Taylor’s] cell phone call log was accessible to searching officers.”  People v. Taylor, supra.  Since it rejected Taylor’s 4^th Amendment argument and the other arguments he made on appeal, the court affirmed his conviction and sentence.  People v. Taylor, supra. 

In a concurring opinion, Judge Booras pointed out that while the majority opinion “acknowledges the concerns express by other courts” regarding cell phone searches “based on the capability of such devices for storing and accessing large amounts of personal information”, there is an another view.  Concurring opinion, People v. Taylor, supra.  She wanted “to point out that many other courts reject the view that the potential volume of information in a cell phone changes its character as a personal effect that . . . may be searched incident to arrest.”  Concurring opinion, People v. Taylor, supra. 

After citing opinions that have taken this position, she explained that “courts have noted problems that would be caused by limiting a search on the basis of the quantity and types of information a device might hold.”  Concurring opinion, People v. Taylor, supra.  For this proposition, she cited U.S. v. Murphy, 552 F.3d 405 (U.S. Court of Appeals for the 4th Circuit 2009), in which a federal Court of Appeals noted that the defendant, Murphy, argued that whether a cell phone can be searched

without a warrant can be determined only upon the officers ascertaining the cell phone's storage capacity. . . . [H]e concedes a device with a small storage capacity may be searched without a warrant due to the volatile nature of the information stored, but argues that a search of a cell phone with a larger storage capacity would . . . require a warrant to be issued before a search could be conducted.

Murphy's argument is problematic. . . . First, [he] has not provided . . . any standard by which to determine what would constitute a `large’ storage capacity as opposed to a `small’ storage capacity. . . . Second, he introduced no evidence that his cell phone had the . . . `large’ storage capacity he contends is subject to a heightened expectation of privacy. Third, . . . his argument . . . is premised on the unwarranted assumption that information stored on a cell phone with a `large’ storage capacity would be any less volatile than the information stored on a cell phone with a `small’ storage capacity.

Finally, Murphy's argument must be rejected because to require officers to ascertain the storage capacity of a cell phone before conducting a search would be an unworkable and unreasonable rule. It is unlikely that officers would have any way of knowing whether the text messages and other information stored on a cell phone will be preserved or be automatically deleted simply by looking at the cell phone.

People v. Taylor, supra (quoting U.S. v. Murphy, supra).

“Harassment by Computer”

After being convicted of harassment by computer in violation of Virginia Code § 18.2 – 152.7:1, Dennis B. Barson, Jr. appealed.  Barson v. Commonwealth, __ S.E.2d __, 2012 WL 2036953 (Virginia Supreme Court, 2012).  Actually, he appealed three times, but we’ll get to that. 

First, the facts.  By April of 2009, Barson and his wife had been married for eight years but they had become “estranged”:  “Barson lived in Austin, Texas, completing his medical specialty training in neurology while his wife lived in Virginia Beach with their children.”  Barson v. Commonwealth, supra.  On May 1, 2009, Barson received a call

advertisement for sex appearing on `Craigslist,’ an online advertising website. After visiting the website, Barson became embarrassed and angry. He tried to call his wife but she failed to respond to any of his telephone calls. 

He began sending emails to his wife, her family and friends. When he received replies from friends and family members, he forwarded them to his wife. His wife received 87 of these emails in the first 14 days of May 2009, and hundreds more during the next six months.

Barson's emails contained language accusing his wife of having `sex with anonymous strangers’ on Craigslist, of having a `new hobby of soliciting sex on CL,’ of having `risky gutter sex,’ of `vacuum[ing] his baby to death’ and of being a `coke whore baby killing prostitute.’ He also accused her of engaging in sexual acts with identified men.

[Barson] admitted at trial that he was angry when he sent the emails and he intended to embarrass his wife, but he testified that his original motive in sending them was to compel her to respond to his telephone calls.

Barson v. Commonwealth, supra.  The Supreme Court noted, though, that he had not challenged “the trial court's finding, or the Court of Appeals' holding, that he sent the emails with the intent to harass his wife.”  Barson v. Commonwealth, supra. 

The trial came about because his wife filed a complaint, after which Barson was  “arrested and tried on a misdemeanor warrant in the Juvenile and Domestic Relations District Court of the City of Virginia Beach.” Barson v. Commonwealth, supra.  He was “convicted and appealed to the Circuit Court of the City of Virginia Beach” which found him guilty after a bench trial and fined him $250.  Barson v. Commonwealth, supra.  Barson appealed to the Virginia Court of Appeals. Barson v. Commonwealth, supra. 

“A divided panel” of the Court of Appeals reversed this conviction “on the ground that the content of Barson's emails was not obscene under the definition of obscenity the Court of Appeals had adopted in Allman v. Commonwealth, 43 Va. App. 104, 596 S.E.2d 531 (2004).”  Barson v. Commonwealth, supra.   

The Court of Appeals then granted the Commonwealth’s petition for rehearing en banc, and the en banc court (i) overruled its decision in Allman; (ii) adopted a broader definition of obscenity derived from a dictionary; and (iii) held that Barson's emails were obscene within its newly-adopted definition, reversed the earlier Court of Appeals’ and affirmed Barson's conviction. Barson v. Commonwealth, supra.   He then appealed to the Supreme Court.

The Supreme Court began its analysis of the issue of obscenity by noting that the statute makes it a crime to “with the intent to coerce, intimidate, or harass any person,” use “a computer or computer network to communicate obscene . . .  or indecent language, or make any suggestion or proposal of an obscene nature”. Barson v. Commonwealth, supra.  Barson did not claim the evidence was insufficient to establish that he intended to “coerce, intimidate, or harass” his wife. Barson v. Commonwealth, supra.  He argued that the language he used was not “obscene.”  Barson v. Commonwealth, supra. 

The only issue in the case, then, was “what definition of `obscene’ should apply” here.  Barson v. Commonwealth, supra.  The issue arose because Virginia Code § 18.2 152.7:1 does not define the term.  The Supreme Court therefore had to decide whether it should apply “the statutory definition of `obscene’ found in Code § 18.2–372 should apply or whether the dictionary's definition utilized by the Court of Appeals.” Barson v. Commonwealth, supra.

The court explained that Virginia Code § 18.2–372 was adopted following the U.S. Supreme Court’s decision in Miller v. California, 413 U.S. 15 (1973), which held that obscene material is not protected by the 1^st Amendment.  Barson v. Commonwealth, supra. Section 18.2-372 says the “word `obscene’ where it appears in this article

shall mean that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.

Barson v. Commonwealth, supra. In other words, it incorporates the test the Supreme Court established in Miller, supra.

The problem was that this definition only applies the Miller test definition to

Article 5 (`Obscenity and Related Offenses’) of Chapter 8 (`Crimes Involving Morals and Decency’) of Title 18.2 of the Code. . . .Code § 18.2–152.7:1 concerning harassment by computer, and Code § 18.2–427 concerning obscene telephone calls, do not appear in Article 5 or any other part of Chapter 8. Instead, the computer statute appears in Chapter 5, `Crimes Against Property’ and the telephone statute appears in Chapter 9, `Crimes Against Peace and Order.’ 

The General Assembly did not expressly provide a statutory definition of `obscene’ that applied to either the computer or the telephone statutes.

Barson v. Commonwealth, supra.

In the Allman case cited above, the Court of Appeals held that the Virginia Code § 18.2–372 definition “should apply to a prosecution under  § 18.2–427 for making obscene telephone calls” because the Virginia Code “constitutes a single body of law and other sections can be looked to where the same phraseology is employed.” Allman v. Commonwealth, supra. It reached the same conclusion in Airhart v. Commonwealth, 2007 WL 88747, which involved a prosecution under Virginia Code § 18.2–152.7:1.  Barson v. Commonwealth, supra.  In so doing, it relied on the “parallel language” in both statutory provisions and the fact that both lacked a definition of obscene. Barson v. Commonwealth, supra.

As noted above, the Court of Appeals “abruptly changed course, overruled Allman to the extent that” it required a different meaning for the term “obscene” and held that “the application of the ordinary meaning of the word ‘obscene’ to the conduct prohibited by Code § 18.2–152.7:1 is more consistent with the stated intent of the legislature than the ad hoc definition crafted in [ Allman ].”  Barson v. Commonwealth, supra. It therefore applied the definition of “obscene” found in “Webster's Third New International Dictionary 1557 (3rd ed.1993),” which defines it as “`1: disgusting to the senses . . . 2: offensive or revolting as countering or violating some ideal or principle.’” Barson v. Commonwealth, supra.

The Supreme Court did not find this acceptable.  It explained that

`”[i]t is a common canon of statutory construction that when the legislature uses the same term in separate statutes, [it] has the same meaning in each unless the General Assembly indicates to the contrary.”’ Jenkins v. Mehra, 281 Va. 37, 704 S.E.2d 577, 583 (2011) (quoting Commonwealth (quoting Commonwealth v. Jackson, 276 Va. 184, 194, 661 S.E.2d 810, 814 (2008)).

The General Assembly provided a definition of `obscene’ in Code § 18.2–372 to comport with the constitutional requirements articulated in Miller. Accordingly, there is no suggestion this definition is constitutionally infirm. The Court of Appeals has for the last eight years utilized this definition outside of Article 5, Chapter 8 of Title 18.2. The legislature is presumed to be aware of this usage. Its acquiescence is deemed to be approval. 

Barson v. Commonwealth, supra.

The Supreme Court found that because the § 18.2-372 definition of obscene adopted by the state legislature “and previously adopted by the Court of Appeals controls this case,” the en banc Court of Appeals “erred in substituting a dictionary definition for that provided by the General Assembly. Barson v. Commonwealth, supra.  It therefore held that Barson’s emails to his wife,

as offensive, vulgar, and disgusting as their language may have been, did not meet the standard of obscenity provided by Code § 18.2–372.  Accordingly, we will reverse the judgment of the Court of Appeals and enter final judgment vacating Barson's conviction.

Barson v. Commonwealth, supra.

In a concurring opinion, three justices point out another problem with what the en banc Court of Appeals did: 

[I]n reversing the panel decision in Barson's case, [the en banc court] did not disagree with the [original panel court’s] decision that Allman expressed the governing law at the time of Barson's offense, but simply overruled Allman, substituted a broader definition of obscenity that had the effect of criminalizing Barson's conduct, and reversed the panel's decision.

Barson argues that this change of the definition of obscenity in 2011, if retroactively applied to his conduct in 2009, infringes his right to due process of law, citing Bouie v. City of Columbia, 378 U.S. 347(1964) (`An unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. 1, § 10 of the Constitution forbids’).

Concurring opinion, Barson v. Commonwealth, supra.

The prosecution argued, in response to this argument, that its decision in Allman “was not binding precedent” because it was subject to review by that court and by the en banc Court of Appeals, which I take as meaning that it wasn’t binding because it could be (as it was) overruled.  Concurring opinion, Barson v. Commonwealth, supra.

The Supreme Court agreed that “an appellate court may at some time after establishing a precedent, revisit the issue in a later case and modify or expressly overrule its earlier decision”, but explained that “unless and until such an overruling occurs, the earlier decision of the Court of Appeals stands as precedent.”  Concurring opinion, Barson v. Commonwealth, supra.  It also pointed out that an

ancient maxim of the common law is ignorantia legis neminem excusat. . . . But if ignorance of the law excuses no one, then all who are subject to the law are presumed to know what the law requires and to conduct themselves accordingly. They cannot be expected to conform their actions to laws that are not announced until after they have acted.

Therefore, Barson's emails to his wife, as offensive, vulgar and disgusting as their language may have been, did not meet the standard of obscenity that prevailed in Virginia at the time they were sent. His conviction under a broader standard of obscenity that retroactively criminalized his conduct violated his constitutional right to due process of law. That is, in itself, sufficient ground for reversing the judgment of the Court of Appeals and vacating Barson's conviction.

Concurring opinion, Barson v. Commonwealth, supra.