4th Amendment Expectation of Privacy and Vehicle’s SDM: Revisited

A couple of years ago, I did a post on a California case in which the California Court of Appeals for the Sixth District held that the owner of an SUV had a 4^th Amendment expectation of privacy in the sensing diagnostic module (SDM) of his vehicle.  

As I noted in that and other posts, if someone has a 4^th Amendment expectation of privacy in a place of thing, that triggers the 4th Amendment’s requirements that officers either obtain a search (and/or seizure) warrant before they search/seize the place/thing or rely on a valid exception to the warrant requirement to justify the search and/or seizure. 

This post examines a new decision from the California Court of Appeals for the Fourth District in which this court reached the opposite conclusion, i.e., it held that another vehicle owner had no 4^th Amendment expectation of privacy in the SDM of his vehicle. The case involves Elva Diaz’s appealing her convictions for involuntary manslaughter in violation of California Penal Code § 192(b) and vehicular manslaughter with gross negligence while intoxicated in violation of California Penal Code § 191.5(a). People v. Diaz, __ Cal.Rptr.3d __, 2013 WL 441824 (2013). 

According to the opinion, the case began when “[a]bout 8:00 p.m. on February 21, 2008,” Diaz drive herself and her “then boyfriend,” Zachary Palumbo, in her Chevrolet

Tahoe truck to a bar a mile or two from their home. At the bar they drank and socialized. Palumbo had been a police officer for about nine years, and was trained in identifying signs of intoxication. When they left . . . at 11:00 or 12:00, Palumbo believed he was less intoxicated than [Diaz] and offered to drive home. 

An argument ensued, and [she] got into the driver's seat and insisted on driving. . . . [Diaz’s] friend . . . offered Palumbo a ride. [Diaz] stayed in her truck, and Palumbo chose to walk. As he was walking, he saw [her] drive by; she seemed to be driving normally. . . .

Luis Aguilar [was] driving home at 12:40 a.m. when he called 911 to report an accident at the intersection of Claystone and Knabe in Corona. [Diaz] got out of her truck, which was upside down. . . . She was crying, and told Aguilar the accident was not her fault and the other driver was at fault. Aguilar noticed a moderate to strong odor of alcohol on her breath, and she was slurring her speech a little. 

On his way home, Palumbo passed the crash scene – [Diaz’s] truck was on its roof, and [she] was on the curb being interviewed by a California Highway Patrol (CHP) officer. Rachel Elliott, the 18–year–old driver of the other vehicle, . . . suffered skull fractures in the collision and died from blunt force trauma.

CHP Officer Jack Penneau arrived . . . at 12:40 a.m. [Diaz said] she had been driving north on Knabe on the correct side of the road, and the other vehicle had been driving south in her lane, [causing] a head-on collision. [Diaz] said she had one beer at 8:00 p.m. . . . 

[She] did not perform properly on field sobriety tests, including nystagmus, standing position, and finger count. She smelled of alcohol and had bloodshot eyes and slurred speech. Preliminary alcohol screenings . . . resulted in readings of 0.194, 0.154, and 0.160 percent blood alcohol respectively. [Diaz] was transported to the hospital, where her blood was drawn before she was taken to jail. Her blood alcohol level at 2:58 a.m. was 0.20, and based on the absorption rate, would have been 0.23 at 12:30 a.m.

People v. Diaz, supra.

Officers impounded both vehicles and towed them “to the towing company's secured lot.” People v. Diaz, supra. “The speed limit in that area was 50 miles per hour.” People v. Diaz, supra.  Stephen Turner, a member of the CHP's Multidisciplinary Accident Investigation Team (MAIT) supervised the inspection of Diaz’s Tahoe and approved the

report of the inspection. Before conducting the inspection, the accident history and background of the vehicle were reviewed. The external condition of the vehicle was documented; the control modules were downloaded; and [it] was taken apart. Turner inspected the Accord and determined that nothing about its mechanical condition would have caused or contributed to the crash.

[He] also inspected the Tahoe, beginning with an external overview and an inspection of the control aspects of the vehicle, including the throttle, steering, suspension, brakes, tires, and wheels. Turner determined there were no mechanical deficiencies that would have contributed to the collision.

People v. Diaz, supra.

At trial, Sergeant Lance Berns, Chief of the CHP's Inland Division MAIT, testified that in his opinion the Tahoe was “travelling at 76 miles per hour at the point of impact.” People v. Diaz, supra. On cross-examination, he “conceded he could not estimate speed at the point of impact without the SDM data.” People v. Diaz, supra.

The point of impact for the head-on collision was between the number one and number two lanes on northbound Knabe with the Tahoe traveling south. [Diaz] conceded she had crossed over the two sets of double yellow lines that separated the northbound and southbound lanes on Knabe.

People v. Diaz, supra.

Officer Richard Wong, who was also assigned to MAIT and who also testified at trial, said the main function of the vehicle’s SDM is to

deploy the air bags. [It] has the secondary function of recording throttle, speed, application of brakes, and transmission position. Data downloaded from the SDM showed that five seconds before the impact, the driver was not pushing on the gas pedal, and the Tahoe's speed was 84 miles per hour. Four seconds before the impact, the vehicle was traveling at 80 miles per hour with seven percent pressure on the gas pedal.

Three seconds before the impact, the vehicle was traveling at 77 miles per hour, with 31 percent pressure on the gas pedal. Two seconds before the impact, the vehicle was traveling at 77 miles per hour, with 84 percent pressure on the gas pedal. 

One second before the impact, the vehicle was traveling at 76 miles per hour, with 94 percent pressure on the gas pedal. The brake was not on from six to eight seconds before the impact. It was on at five seconds before the impact, and not on from four to one seconds before the impact.

People v. Diaz, supra. Wong also testified that, “based on his training and experience with collision reconstruction,’” the photos he saw of the damage to both vehicles was “consistent with `“the Tahoe traveling at 76 miles per hour.’” People v. Diaz, supra.  As noted above, Diaz admitted, when testifying at trial, that she “was extremely drunk that night” and that she crossed the double yellow lines.  People v. Diaz, supra.

After being convicted and sentenced to ten years in prison, Diaz appealed, arguing that “the warrantless search of her vehicle and the seizure of the vehicle's SDM violated the 4th Amendment.”  People v. Diaz, supra.  Interestingly, the opinion says this was “an issue of first impression in this court”, which I assume refers to the California Court of Appeals in general, rather than this particular district of the Court of Appeals.  People v. Diaz, supra.

As to the 4^th Amendment issues, the court notes, first, that Diaz conceded the Tahoe was “`essentially totaled’” and did not claim either that “impounding the vehicle on the night of the accident was improper or that there was no probable cause to obtain the SDM data.” People v. Diaz, supra. Instead, she argued that she had a 4^th Amendment expectation of privacy in the SDM data, i.e., that “because the SDM was inaccessible and not in plain view, and its data were unavailable without connecting the SDM to a computer, there was a reasonable expectation that third parties would not have access even if she herself did not know of the presence of the SDM.” People v. Diaz, supra. 

So, as noted above, Diaz argued that it was a 4^th Amendment “search” for officers to extract the data from her SDM, which would mean they could not have done so unless their actions were authorized by a search warrant or an applicable exception to the warrant requirement.  Prior to trial, she moved to suppress the SDM data, on the basis of this argument, but the court denied her motion and, as noted above, the SDM data was used at her trial.  People v. Diaz, supra.  The judge denied the motion because he found she had no “`subjective belief in . . . a privacy interest in an SDM that she probably didn't know existed.’” People v. Diaz, supra.  He also found that even if she knew it existed and believed it was private, her belief that it was private would not be “reasonable:”

`These computer modules were placed in cars as safety devices to gather information such as braking and speed, so as to be able to deploy the air bag at an appropriate time. They were not designed to gather any personal information. . . . Indeed, they are not under the control of the individual driver at all.’

People v. Diaz, supra. 

The Court of Appeals began its analysis of her argument by noting that, as Wikipedia explains, the Supreme Court has held that while we have a 4^th Amendment expectation of privacy in our vehicles, the expectation is not as strong as it is in our homes and other non-mobile places.  People v. Diaz, supra.  The vehicle exception lets officers search a vehicle for evidence, without first obtaining a search warrant, if they have probable cause to believe that evidence will be found in the vehicle.  People v. Diaz, supra. 

The original rationale for the exception was the mobility of vehicles, i.e., that it is not practicable to get a warrant for something that can be driven out of the jurisdiction.  More recently, in cases like California v. Carney, 471 U.S. 386 (1985), the Court has noted that the exception is also predicated on the fact that our vehicles are less “private” than our homes, because we use them in public and they are regulated by the state.

The court noted that Diaz did not “dispute that police had probable cause” to search for the SDM data because “`speed and braking are always relevant in determining the causes of a collision.”  People v. Diaz, supra.  It therefore found that the search for (and seizure of) the SDM data did not violate the 4^th Amendment. People v. Diaz, supra. 

It also agreed with the trial judge that the data obtained from the SDM concerned the

vehicle's speed and braking immediately before the impact. We agree that a person has no reasonable expectation of privacy in speed on a public highway because speed may readily be observed and measured through, for example, radar devices, . . . pacing the vehicle . . . or estimation by a trained expert. . . Similarly, a person has no reasonable expectation of privacy in use of a vehicle's brakes because statutorily required brake lights . . . announce that use to the public.

Thus, [Diaz] has not demonstrated she had a subjective expectation of privacy in the SDM's recorded data because she was driving on the public roadway, and others could observe her vehicle's movements, braking, and speed, directly or through the use of technology such as radar guns or automated cameras. . . . [T]echnology merely captured information [Diaz] knowingly exposed to the public -- the speed at which she was travelling and whether she applied her brakes before the impact. . . .

People v. Diaz, supra. 

The reference to “knowingly exposing” something to the public comes from the Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967), which defined the standard that is used to determine if there has been a 4^th Amendment “search.”  The Katz Court said, in part, that

the 4th Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of 4th Amendment protection. . . . protection. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. 

Katz v. U.S., supra.

For this and other reasons, the Court of Appeals affirmed Diaz’s conviction and sentence.  People v. Diaz, supra.  If the 4^th Amendment issue interests you, you might also read the post noted above, in which another court reached the opposite result.

And if you would like to read more about the facts in the case, plus see a photo of Diaz, check out the news story you can find here. 

Phishing, Bank Fraud and Conspiracy

After a jury found him guilty of guilty of conspiracy to commit bank fraud in violation of 18 U.S. Code § 1349 and conspiracy to commit fraud in connection with access devices in violation of 18 U.S.Code § 1029(b)(2), Bogdan Boceanu filed a motion under Rule 29 of the Federal Rules of Criminal Procedure to set aside the jury’s verdict on the bank fraud conspiracy charge and enter a judgment of acquittal.  U.S. v. Boceanu, 2013 WL 441072 (U.S. District Court for the District of Connecticut 2013). 

According to this press release, the charges against Boceanu arose from “a sophisticated Internet phishing scheme”.  This is how the press release describes the scheme in question:

[I]n 2005, a resident of Madison, Conn., contacted the FBI in New Haven about a suspicious email she had received that purported to be from Connecticut-based People’s Bank.  The email stated that the recipient’s online banking access profile had been locked and instructed the recipient to click on a link to a web page where the recipient could enter information to `unlock’ his or her profile. 

The web page appeared to originate from People’s Bank, but, as the investigation revealed, was actually hosted on a compromised computer in Minnesota.  Any personal identifying and financial information provided by the individual would be sent by email to individuals in Romania, or to a `collector’ account, which was an email account used to receive and collect the information obtained through phishing.

The co-conspirators were part of a loose-knit conspiracy of individuals from Craiova, Romania, and neighboring areas that shared files, tools, and stolen information obtained through phishing. 

The co-conspirators used and shared a number of collector accounts, which contained thousands of email messages that contained credit or debit card numbers, expiration dates, CVV codes, PIN numbers, and other personal identification information such as names, addresses, telephone numbers, dates of birth, and Social Security numbers. 

The co-conspirators then used the personal and financial information to access bank accounts and lines of credit and to withdraw funds without authorization, often from ATMs in Romania.

More specifically, the opinion cited above explains that during Boceanu’s three-day trial in December of 2012, the evidence presented to establish the bank fraud conspiracy consisted of:

(1) the testimony of Suzanne Novak, a former People's Bank customer, who received a phishing email targeting customers of People's Bank that had been sent around June 13, 2005; (2) the testimony of David Cracauer -- on whose compromised computer the fake People's Bank website was hosted -- that the information provided by customers duped into responding to the email was sent to the email address Vercartil@yahoo.com; (3) the testimony of cooperating witness Gabriel Sain that he engaged in the phishing scheme with others, including Boceanu; that Boceanu used the email address damnedasp@yahoo.com; and that Boceanu exchanged emails that contained stolen information, including names, addresses, Social Security numbers, credit card numbers, and bank identification numbers as well as a program for harvesting email addresses; (4) emails between damnedasp@yahoo.com and other members of the conspiracy, including an email sent to vercartil @yahoo.com in June 2005, asking for a list of credit numbers that were `good,’ i.e., working, and an email in response containing a subset of the numbers contained in the original email; and (5) testimony from FBI Special Agent Martin McBride that co-defendant Ovidiu–Ionut Nicola Roman used the email address vercartil@yahoo.com.

U.S. v. Boceanu, supra. 

The district court judge who has this case began her analysis of Boceanu’s Rule 29 motion by explaining that

Rule 29(a) provides that district courts `must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.’ . . . Rules 29(b) and (c) permit a court to reserve the decision on the motion until after the jury returns a verdict. 

`A defendant challenging the sufficiency of the evidence that was the basis of his conviction at trial bears a “heavy burden.”’ U.S. v. Hawkins, 547 F.3d 66 (U.S. Court of Appeals for the Second Circuit 2008) (quoting U.S. v. Parkes, 497 F.3d 220 (U.S. Court of Appeals for the Second Circuit 2007)).

In deciding whether to grant a motion pursuant to Rule 29, the court should view the evidence in the light most favorable to the government, drawing all inferences in the government's favor and deferring to the jury's assessments of the witnesses' credibility.’ U.S. v. Hawkins, supra. A jury verdict shall be sustained so long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ U.S. v. Hawkins, supra. . . .

U.S. v. Boceanu, supra. 

In his Rule 29 motion, Boceanu argued that

the evidence adduced at trial is insufficient to sustain his conviction for conspiracy to commit bank fraud because the only evidence connecting Boceanu to the conspiracy to commit bank fraud -- as opposed to the conspiracy to commit credit card fraud -- were the emails he exchanged with co-defendant Nicola-Roman around the same time that Nicola-Roman sent the People's Bank phishing email.

U.S. v. Boceanu, supra. 

The district court judge noted that to prove a conspiracy to commit bank fraud,

the Government must establish the following two elements: (1) that two or more persons entered into the alleged agreement to commit bank fraud, and (2) that the defendant knowingly and willfully joined in the agreement. 

The agreement to commit bank fraud must have been an agreement to engage in a scheme or artifice to defraud, or obtain money or property from, a federally-insured financial institution by means of materially false or fraudulent pretenses, representations, or promises. See 18 U.S.C. § 1344.

U.S. v. Boceanu, supra. 

Boceanu did not “challenge the sufficiency of the evidence related to the first element of the crime of conspiracy.” U.S. v. Boceanu, supra. As the judge noted, “an agreement existed to engage in bank fraud as evidenced by the phishing email directing recipients to a fake website for People's Bank, which is a federal-insured bank.” U.S. v. Boceanu, supra. 

Instead, Boceanu predicated his Rule 29 motion on the argument that the evidence was not sufficient to establish the second element of a conspiracy to commit bank fraud:

Boceanu argues that the only evidence introduced by the government connecting him to the bank fraud conspiracy were the emails containing credit card numbers that he exchanged with Nicola-Roman in June 2005. Those emails were sent within the same month that Nicola-Roman sent the People's Bank email.

Boceanu argues that there is no evidence that those emails -- and the credit card numbers contained therein -- were related to the People's Bank scheme. 

Because the evidence related to the People's Bank scheme was the only evidence of a scheme to defraud a federally-insured bank, without connecting Boceanu to the People's Bank phishing scheme, Boceanu argues that he cannot be found guilty of conspiracy to commit bank fraud.

U.S. v. Boceanu, supra.

The district court judge did not agree.  She explained that the prosecution

did not ask the jury to make the inference that the emails exchanged between Boceanu and Nicola-Roman contained credit card information obtained from the People's Bank scheme.

Rather, the government asked the jury to infer that Boceanu was involved with the People's Bank scheme because he worked `closely with Nicola–Roman and others as part of the conspiracy at a time when one of the targets of the conspiracy was People's Bank.’ Government’s Memorandum in Opposition to Motion for Judgment of Acquittal at 9.

Given the extensive evidence that Boceanu participated in a phishing scheme with his codefendants, that he obtained a program to extract email addresses, and that he worked closely with Nicola-Roman on the phishing scheme at the same time that Nicola-Roman was engaging in the People's Bank website scam, the court concludes that, taking the evidence in a light most favorable to the government, a reasonable jury could find that Boceanu knowingly and willfully joined the agreement to commit bank fraud against People's Bank.

U.S. v. Boceanu, supra.

The judge therefore denied Boceanu’s motion for judgment of acquittal.  U.S. v. Boceanu, supra.  The press release noted above say that when Boceanu is sentenced, he “faces a maximum term of imprisonment of 35 years.” 

Theft and Index Cards

Carla M. Ramey was charged with one count of theft in violation of Ohio Revised Code § 2913.02(A)(1), convicted by a jury and “sentenced to a suspended prison term in lieu of a fine of $250.00” which was suspended if she paid “the fine in full by August 14, 2012,” plus restitution of $5.00 and 100 hours of community service and probation.  State v. Ramey, 2013 WL 749320 (Ohio Court of Appeals 2013). 

This, according to the opinion, is how the case arose:

[Ramey] was an independent contractor providing services for SFT Medical Billing Company. In late December of 2011, [she] ceased affiliation with SFT, and cleaned out her desk. Among the items taken from the desk were note cards on a ring which [Ramey] used while at SFT.

[Ramey] had transferred information onto the note cards, including password and login names for various insurance companies for which SFT provided billing information. [She] claims to have purchased the cards with her own funds, and to have kept them in a locked drawer at her desk with other personal property.

Regina Owens, the owner of SFT Medical Billing, contacted [Ramey] asking her to return the note cards with the information. [Ramey] initially denied taking the cards, but later returned a few cards. [She] did not return all of the note cards.

State v. Ramey, supra.

Ramey made two arguments on appeal:  First, she claimed the prosecutor’s comment, at her trial, “on [her] prearrest silence amounted to prosecutorial misconduct.”  State v. Ramey, supra.  As Wikipedia explains, prosecutorial misconduct is a claim defendants can use to “argue that they should not be held criminally liable for actions which may have broken the law, because the prosecution acted in an `inappropriate’ or `unfair’ manner.”   

These are the prosecutor’s comments Ramey objected to:

`. . . . Regina is going to tell you she was pressured. She didn't know what to do so she called the Sheriff's office. They came in and they started an investigation and the deputy called Carla . . . in front of Regina and the two of them sat there and listened to [Regina] give a couple of different stories and finally she said, I don't have them; no, I have them; I don't have them anymore and then she agreed to come into the Sheriff's office and she did.’

`And you're going to hear from several people that she turned in three cards to the Sheriff's office. There's going to be a couple of problems with that, folks, and that is, first of all by turning those in, she admitted she had something in her possession.’

`The second is that Regina is going to tell you that it doesn't even really look like these are the originals. She'll explain to you why, but there's reason to believe these are recreations.’

`So not only do we have the [Ramey] turning in property to the Sheriff's office that she's saying is the property that she previously denied that she had. But you're also going to hear that there's reason to believe she actually was substituting that and presenting false information then to the Sheriff's office.’

`They attempted to talk to her again, she declined any further interviews with them and so—‘

State v. Ramey, supra.

When Ramey’s attorney objected “to the remarks”, the trial judge gave the jury this “limiting instruction”:  

`The Court: I just want to instruct you you're not to consider any reference to any evidence or suggestion that the Defendant chose or didn't make a statement to the police. All right. You may proceed.’

State v. Ramey, supra.

The Court of Appeals began its analysis of Ramey’s first argument by noting that the

test for prosecutorial misconduct is whether the prosecutor's comments and remarks were improper, and, if so, whether those comments and remarks prejudicially affected the substantial rights of the accused. . . . 

In reviewing allegations of prosecutorial misconduct, this Court must consider the complained of conduct in the context of the entire trial. Darden v. Wainwright, 477 U.S. 168 (1986).

State v. Ramey, supra. 

It also noted that the Ohio Supreme Court “has held ‘that use of a defendant's pre-arrest silence as substantive evidence of guilt violates the 5th Amendment privilege against self-incrimination.’” State v. Ramey, supra (quoting State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335 (Ohio Supreme Court 2004). (The U.S. Supreme Court recently agreed to address this issue.)

After considering the nature of the prosecutor’s conduct, the court found

the same to be improper. However, in light of the limiting instruction and the strength of the evidence, we find the prosecutorial error was not prejudicial. The trial court immediately ordered the jury to disregard the statement, and the issue was not revisited.

State v. Ramey, supra.

Ramey’s second argument was that “the evidence was insufficient to support her conviction for theft.”  State v. Ramey, supra.  The Court of Appeals began its analysis of this argument by explaining that

[o]ur review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jacksonv. Virginia, 443 U.S. 307 (1979), which requires a court of appeals to determine whether `after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’  Jackson v. Virginia, supra.

State v. Ramey, supra.

The statute under which Ramey was convicted -- Ohio Revised Code § 2913.02(A)(1) --provides as follows:

No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services . . . [w]ithout the consent of the owner or person authorized to give consent[.]

The Court of Appeals noted that the criminal complaint filed against Ramey “states [she] took `20–30 index cards containing log-in, passwords, and security information to several private insurance companies’ without the permission of the owner, Regina Owens.”  State v. Ramey, supra.

On appeal (and maybe at trial?), Ramey argued that

the State failed to introduce evidence Regina Owens or SFT Medical Billings was the owner of the index cards. Rather, [Ramey] argues, she, as an independent contractor, purchased the note cards for her own personal purposes and they remained her own personal property.

State v. Ramey, supra.

The Court of Appeals explained that Ohio Revised Code § 2901.01(A)(10)(A) defines “property” as follows:

‘”Property” means any property, real or personal, tangible or intangible, and any interest or license in that property. “Property” includes, but is not limited to, cable television service, other telecommunications service, telecommunications devices, information service, computers, data, computer software, financial instruments associated with computers, other documents associated with computers, or copies of the documents, whether in machine or human readable form, trade secrets, trademarks, copyrights, patents, and property protected by a trademark, copyright, or patent.’

“’Financial instruments associated with computers” include, but are not limited to, checks, drafts, warrants, money orders, notes of indebtedness, certificates of deposit, letters of credit, bills of credit or debit cards, financial transaction authorization mechanisms, marketable securities, or any computer system representations of any of them.’

State v. Ramey, supra.

The court then noted that

[Ramey] purchased the note cards for her own use. However, upon transferring the passwords and log-in information for SFT's billing clients onto the cards, the cards contained `data’ which was the property of SFT and Regina Owens. 

State v. Ramey, supra.

The Court of Appeals therefore found that

the log-in, password and security information for the private insurance companies constitutes `data’ as defined in Ohio Revised Code § 2901.01(A)(10). 

Upon transferring the information to the note cards, [Ramey] caused the note cards to become the property of SFT and Regina Owens. Accordingly, we find there is sufficient evidence to support [her] conviction for theft.

State v. Ramey, supra.  It therefore affirmed Ramey’s conviction and sentence.  State v. Ramey, supra. 

Kidnapping, Experts and Paraphilia

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You’re probably aware of, if you haven’t been following, the Cannibal Cop’s trial.  This post examines a ruling the federal district court judge who has the case made on an evidentiary issue that arose before the trial began.  U.S. v. Valle, 2013 WL 440687 (U.S. District Court for the Southern District of NewYork 2013) (“U.S. v. Valle, supra”).

Gilberto Valle is not charged with cannibalism, actual or aspiring.  As far as I can tell, only one state – Idaho – makes cannibalism, as such, a crime.  My guess is that in many, if not all, of the other states, it would be prosecuted as abuse of a corpse.  That seems to be the approach the Model PenalCode, an influential template of criminal laws, takes, and it has influenced many of the states.

Valle, however, is charged with neither crime.  He is, instead, being prosecuted in federal court and is charged with two federal crimes:  “conspiracy to commit kidnapping, in violation of 18 U.S. Code § 1201(c), and accessing a federal database without authorization, in violation of 18 U.S. Code §1030(a)(2)(B).”  Indictment, U.S. v. Valle, 2012 WL 5835831 (November 15, 2012).  (I can’t find the indictment online, but the preceding Criminal Complaint, which charges the same crimes, is available here.)

At some point before the trial began, the prosecution “moved in limine for an order excluding certain proposed expert testimony.  U.S. v. Valle, supra.  As Wikipedia notes, in U.S. law, a motion in limine is used to ask the trial judge to admit or bar the admission of evidence. 

As you may already know, the prosecution is contending that Valle used “emails and Internet `chats’” to conspire

with three others to kidnap eight women. . . .The Government represents that in these electronic communications [Valle] and his alleged co-conspirators `discuss, in graphic detail, plans to kidnap, torture, kill and cannibalize specific and identified women.’ . . . The few electronic communications that have been disclosed to the Court discuss acts of extreme violence, generally in a sexual context. . . .

It appears that the `chats’ the Government intends to introduce at trial occurred over sexual fetish websites that cater to individuals interested in violent sexual fantasy, sadomasochism, and bondage, as well as topics such as rape, genital mutilation, dismemberment, and cannibalism. . . . The Government may introduce at trial images and videos [Valle] downloaded to his computer showing acts of violence, including staged torture and staged videos of women being hunted in the woods. . . .

The defense . . . will be that [Valle] had no criminal intent, and his `chats’ over the internet reflect nothing more than sexual fantasies.  [Valle] intends to assert that he suffers from a psychological condition known as `paraphilia.’ . . . This condition allegedly causes [Valle] to `derive[ ] sexual excitement from the imagined psychological or physical suffering [of women] (including the abduction and binding) of . . . female “victim[s].”’

U.S. v. Valle, supra.  If you’re interested, you can read more about all that in any of the various news stories available online.

The evidence at issue in the motion in limine was the defense’s intention to call Park Dietz, “a forensic psychiatrist and criminologist,” as an expert witness.  U.S. v. Valle, supra.  You can find a summary of Dietz’s education and credentials here.  The opinion notes that he has “authored more than 100 articles and book chapters, and has lectured on, topics such as forensic psychiatry,  paraphilia, sexual sadism and bondage, pornography, sex offenses, sex offender profiles, predicting individual criminality, and stalking.”  U.S. v. Valle, supra. 

In offering Dietz as an expert witness, the defense explained that he would testify as

an expert in the area of forensic psychiatry and criminology, and, more particularly, as an expert in sexual fantasy, extreme or bizarre sexual role play, sexual sadism, sadomasochism and BDSM subculture, and the extent to which persons involved in such alternative sexual lifestyles carry out their fantasies or role playing. . . .

U.S. v. Valle, supra. 

More precisely, the defense said Dietz was expected to testify that Valle does not

`suffer from any major mental illness, psychotic illness, or personality disorder associated with violence or criminality. . . . Dietz will explain . . . that Valle does meet the diagnostic criteria for Paraphilia, as specified in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (`DSM–IV’)(American Psychiatric Association 1994).’

`Dietz will discuss the history of scientific understanding of Paraphilia, and will testify that the essential features of a Paraphilia are recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one's partner, or 3) non-consenting persons, that occur over a period of at least six months. . . .’

`Dietz will opine that Mr. Valle's particular Paraphilia involves recurrent fantasies of sexual sadism in which he derives sexual excitement from the imagined psychological suffering (including the abducting and binding) of a female “victim.”  Dietz will further testify that Valle's internet communications and related actions in this case are consistent with the modus operandi of fantasy role-play and storytelling engaged in by people who have a Paraphilia.’

U.S. v. Valle, supra.  Dietz was also expected to testify that Valle “`that Valle “lacks any of the risk factors for violence . . . with the exception of some bouts of intoxication . . . and various psychosocial stressors.’”  U.S. v. Valle, supra. 

The government moved to bar Dietz from testifying “because (1) it will not be helpful to the jury under Federal Rule of Evidence 702 and (2) will address the `ultimate issue’ in this case, in violation of Federal Rule of Evidence 704(b).”  U.S. v. Valle, supra. 

As to the first issue, the district court judge found that “Dietz's proposed testimony is both relevant under Federal Rule of Evidence 401 and likely to be helpful to the jury under Federal Rule of Evidence 702.”  U.S. v. Valle, supra.  As Wikipedia explains, an expert witness can give his/her opinion on issues relevant to the charges in a case when he/she testifies at trial.  Rule 702 specifically allows the opinion testimony if the expert’s testimony is reliable, is based on “sufficient facts or data” and will help the jury to decide a “fact in issue”, such as what, precisely, Valle was up to online.  Rule 401 simply defines when evidence is “relevant” and therefore presumptively admissible at trial. 

With regard to Dietz and Rules 401 and 702, the judge explained that his testimony

will address a number of subjects that are highly relevant to this case, including the likelihood of violent conduct by men who are sexually aroused by sexually sadistic images; the coping mechanisms such men often develop, including role play over the internet; and the psychological condition that Valle allegedly suffers from, and how that condition has manifested itself in his actions. 

All of these topics are beyond the ken of the average juror, and Dietz is well situated by his education, training, research, and academic study and writings to address these issues.

U.S. v. Valle, supra. 

In arguing that Dietz should not be allowed to testify, the prosecution relied primarily on

U.S. v. DiDomenico, 985 F.2d 1159 (U.S. Court of Appeals for the 2d Circuit 1993), where the Second Circuit affirmed the district court's exclusion of expert testimony regarding defendant's supposed `dependent personality disorder.’ . . . 

In excluding the proposed expert testimony as unnecessary and not helpful to the jury, Judge Cabranes noted it was offered to show the defendant's `asserted vulnerability and susceptibility to being duped by her boyfriend. Expert testimony on this relatively commonplace experience is simply inappropriate.’ . . . The Second Circuit agreed, finding that the defendant's claim that she acted under the influence of her boyfriend `was not hard to assimilate and . . . addressed a subject matter within the experience of the jury.’ . . .

U.S. v. Valle, supra. 

The judge in the Valle case explained that the

proffered expert testimony here is of an entirely different nature. Dietz will not be addressing any matters that can fairly be described as `commonplace experience[s].’ The subject matter at issue is likely to be entirely foreign to the jury, and  Dietz's testimony is likely to be helpful to the jury in assessing Valle's state of mind.

U.S. v. Valle, supra. 

As noted above, the prosecution also argued that Dietz’s testimony should be excluded because it would violate Federal Rule of Evidence 704(b), which states that “[i]n a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”  U.S. v. Valle, supra. 

Valle, on the other hand, argued that Dietz’s testimony would not violate

Rule 704(b), because `[h]e will not state an opinion about whether Valle did or did not have the criminal intent to conspire or kidnap. He will not even opine about whether Valle had the capacity to form criminal intent.’ . . . (emphasis in original).

Instead, [Valle] argues, Dietz will offer testimony designed to assist the jury in understanding Valle's highly unusual psychiatric condition, which causes him to experience sexual arousal from discussing, or viewing scenes of, imagined psychological or physical suffering of women, particularly in a sexual context. 

Dietz will further testify that `Valle's internet communications and related actions in this case are consistent with the modus operandi of fantasy role-play and storytelling engaged in by people who have Paraphilia’. . . .

U.S. v. Valle, supra. 

The judge agreed with Valle, noting that

[n]one of this proposed testimony addresses the ultimate issue of criminal intent, however, nor does it improperly usurp the jury's role. The jury could accept Dietz's testimony in toto and still conclude that Valle had criminal intent - - i.e ., that he agreed with another individual to kidnap a female victim.

U.S. v. Valle, supra. 

He also explained that Dietz will not

opine as to Valle's mental capacity or whether he had criminal intent. The possibility that the jury may infer from Dietz's testimony that Valle did not intend to kidnap anyone -- and that his chats were mere sexual fantasy -- does not require exclusion of Dr. Dietz's testimony, of course. See U.S. v. DiDomenico, supra. (`Clearly, Rule 704(b) does not prohibit all expert testimony that gives rise to an inference concerning a defendant's mental state’) (citing U.S. v. Richard, 969 F.2d 849 (U.S. Court of Appeals for the 10<sup>th</sup> Circuit 1992) (`[Rule 704(b)] does not prevent the expert from testifying to facts or opinions from which the jury could conclude or infer the defendant had the requisite mental state.’); see also U.S. v. Dunn, 846 F.2d 761 (U.S. Court ofAppeals for the D.C. Circuit 1988) (`It is only as to the last step in the inferential process -- a conclusion as to the defendant's actual mental state -- that Rule 704(b) commands the expert to be silent.’)

U.S. v. Valle, supra. 

The judge therefore denied the prosecution’s motion in limine.  U.S. v. Valle, supra.  So, I assume Dr. Dietz will be testifying