The Engineering Firm, the Computer Fraud and Abuse Act and the Preliminary Injunction

This post examines a decision by a U.S. District Court Judge in the Southern District of Ohio in a civil suit.  The issue involved “Plaintiff Goken America, LLC (`Goken’)'s Motion for Temporary Restraining Order and Preliminary Injunction”.  Goken America, LLC v. Naveen Bandepalya, et al., 2014 WL 6673830 (2014).

The judge begins this opinion by explaining how the litigation arose:

Goken America, LLC (`Goken’) is an Ohio engineering firm that employed defendant, Naveen Bandepalya (`Bandepalya’), from September 2010 until January 2014. Goken promoted Bandepalya to a supervisory position in October 2012. Goken issued Bandepalya a company laptop and iPhone upon his promotion.

In April 2013, Bandepalya requested access to a `Business Development’ subfolder within a larger `Admin’ folder. The larger `Admin’ folder houses a variety of important Goken files, such as: a Japanese–English dictionary specified to Honda engineering terms, employee payroll information, Development Support Engineer information, HR information, employee immigration information, and a folder with legal files. Goken CEO, Doug Smith (`Smith’), gave Bandepalya access to the entire `Admin’ folder on his Goken laptop because it would have been logistically difficult to give Bandepalya restricted access to just the `Business Development’ subfolder.

The Goken network required a unique username and password to access the `Admin’ folder so that only approved employees have access to it. The parties did not discuss Bandepalya's authorization for the other sub-folders within the restricted `Admin’ folder. But Smith testified that it was his understanding that Bandepalya would only access files in the `Business Development’ sub folder based on a conversation they had and based on common practice. (Transcript of Preliminary Injunction Hearing, Goken America v. Bandepalya, 2:14–cv–1445 (2014)).

Bandepalya quit his job at Goken in January 2014. He returned his Goken-issued laptop and iPhone during his exit interview, but both devices had been wiped clean of all Bandepalya's files and restored to default settings. Goken then submitted the devices to a forensic investigator who could recover deleted files and determine some activity from the laptop. That investigator determined that a month before quitting at Goken, in December 2013, Bandepalya copied 8,659 files, the entire contents of the restricted `Admin’ folder, onto his laptop and then onto an external hard drive. Bandepalya confirmed that he copied those files in or around the beginning of January. But he stated that he only meant to take his personal files and presentations that he prepared during his employment at Goken. He testified that he did not open any of Goken's files after downloading them onto the external hard drive. But Liptak, the forensic investigator, testified that Goken files from the `Admin’ folder had been viewed at least 69 times from the external hard drive while it was in Bandepalya's possession.

Goken America, LLC v. Naveen Bandepalya, et al., supra.

The judge goes on to explain that both of the parties to this suit agreed there was

no non-compete contract in effect when Bandepalya was employed at Goken. Goken published a handbook of employee expectations, and that handbook included a confidentiality clause, which Bandepalya signed. His signature affirmed that he had read and understood the policies, but not specifically that he agreed to be bound by the policies. But Bandepalya agreed that he knew that the information on the `Admin’ folder was not to be shared with people outside the company. . . .

While working at Goken, Bandepalya supervised ongoing projects with a valuable client, Honda R & D Americas, Inc. (`Honda’). Bandepalya currently works for Defendant American Hydrostatics (`AH’) and was contracted out to its subsidiary, Defendant Cresttek, LLC (`Cresttek’). Bandepalya's duties at Cresttek are similar to his prior responsibilities at Goken. The similarities include working primarily with Honda, seeking to improve Cresttek's reputation at Honda, and identifying resumes for filling prospective work at Honda. . . .

Goken America, LLC v. Naveen Bandepalya, et al., supra.

The judge explained that on September 3, 2014, Goken filed the complaint that initiated this lawsuit and a motion for a Temporary Restraining Order (TRO) and “Preliminary Injunctive Relief”.  Goken America, LLC v. Naveen Bandepalya, et al., supra.  He entered the TRO which enjoined the defendants from “using or disclosing Goken's confidential business trade secret information”, prohibited Bandepalya “from working on Honda projects until a hearing on the merits”, ordered the defendants “to preserve all documents and electronic files that could be relevant to this lawsuit”, ordered them to “identify and turn over all Goken trade secret information” and ordered Bandepalya “to deliver all external hard drive and USB devices he connected to his Goken laptop during his employment.” Goken America, LLC v. Naveen Bandepalya, et al., supra. Goken’s motion asks the judge to replace the TRO with a Preliminary Injunction.  Goken America, LLC v. Naveen Bandepalya, et al., supra.

The judge began the substantive part of his opinion by explaining that a 

preliminary injunction is a remedy used by the court to preserve the status quo between the parties pending trial on the merits. University of Texas v. Camenisch, 451 U.S. 390 (1981). When determining whether to grant a preliminary injunction, this Court must balance the following four factors: (1) whether the movant has shown a strong likelihood of success on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuing the injunction. Overstreet v. Lexington–Fayette Urban Cnty. Gov't, 305 F.3d 566, (U.S. Court of Appeals for the 6th Circuit 2002).

These factors are to be balanced against one another other and should not be considered prerequisites to the grant of a preliminary injunction. United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg'l Transit Auth., 163 F.3d 341 (U.S. Court of Appeals for the 6th Circuit 1998). As an extraordinary remedy, a preliminary injunction is to be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it. Leary v. Daeschner, 228 F.3d 729 (U.S. Court of Appeals for the 6th Circuit 2000).

Goken America, LLC v. Naveen Bandepalya, et al., supra.

The judge noted that the plaintiff alleged, “among other things, a cause of action for violation of the Computer Fraud and Abuse Act (CFAA),” which creates a civil cause of action as well as criminal offenses. Goken America, LLC v. Naveen Bandepalya, et al., supra.  Goken claimed “it has a strong likelihood of success because defendants violated three sections” of the CFAA. Goken America, LLC v. Naveen Bandepalya, et al., supra.  Specifically, Goken asserted, first, that the defendants in the suit violated

U.S. Code § 1030(a) (2)(C). This subsection makes it illegal `intentionally [to] access[ ] a computer without authorization or exceed[ ] authorized access’ and thereby obtain information from a protected computer. 18 U.S. Code § 1030(a)(2)(C). A protected computer is a computer `used in or affecting interstate or foreign commerce or communication.’ 18 U.S. Code § 1030(e)(2)(B). Goken contends Bandepalya violated this section of the Computer Fraud and Abuse Act because he exceeded authorized access when he only had permission to access the `Business Development’ subfolder within the larger `Admin’ folder, yet he accessed and downloaded many other files in the `Admin’ folder.

Second, Goken contends that Defendants violated § 1030(a)(4) of the CFAA. This subsection makes it illegal for a person `knowingly and with intent to defraud, [to] access[ ] a protected computer without authorization, or exceed [ ] authorized access’ to further the intended fraud and obtain something of value. . . . . Goken argues that Bandepalya's deletion of all the downloaded files from his laptop and concealment of his business relationship with AH and Cresttek during the time that he downloaded the files demonstrate the high likelihood of succeeding on this point. Goken also discusses the competitive value of their trade secrets and argue that they fulfill the “something of value” prong of this section.

Third, Goken relies on § 1030(a)(5)(C) of the CFAA, which prohibits an individual from `intentionally access[ing] a protected computer without authorization, and as a result of such conduct, causes damage and loss.’ . . . Goken argues that this section applies because Bandepalya's access was outside the scope of his authority. Goken also contends that it suffered damage and loss when its confidential business information was made available to a direct competitor.

Goken America, LLC v. Naveen Bandepalya, et al., supra.

The defendants denied “any likelihood of success” on the claim because there

is no violation of the CFAA when permission is knowingly and voluntarily given. They contend that the CFAA does not apply when an individual misappropriates information after access is freely given. Defendants state that Goken gave Bandepalya access to the `Admin’ folder, so there can be no violation of the CFAA. They argue that the CFAA is not the appropriate statute for this case because Bandepalya did not improperly access the files. Defendants assert that a Bandepalya purportedly misused the information already at his disposal, rather than improperly accessing it in the first place.

Goken America, LLC v. Naveen Bandepalya, et al., supra (emphasis in the original).

The judge began his analysis of the parties’ respective positions by noting that courts

`around the country struggle with whether the CFAA applies in a situation where an employee who had been granted access to his employer's computers uses that access for an improper purpose’ Ajuba Intern., L.L.C. v. Saharia, 871 F.Supp.2d 671 (U.S.District Court for the Eastern District of Michigan 2012). There are some courts that `have construed the terms narrowly, holding that an employee's misuse or misappropriation of an employer's business information is not “without authorization” so long as the employer has given the employee permission to access such information.’ Cranel Inc. v. Pro Image Consultants Grp., LLC, 2014 WL 4829485 (U.S. District Court for the Southern District of Ohio 2014). . . . Other courts have determined that `an employee accesses a computer without authorization whenever the employee, without the employer's knowledge, acquires an interest that is adverse to that of his employer or is guilty of a serious breach of loyalty.’ Cranel Inc. v. Pro Image Consultants Grp., supra. . .

One Court in this district has construed the term `exceeds authorized access’ narrowly. That Court recently held that an employee who has total access to an employer's computer but misuses the information from that computer does not operate `without authorization’ under the CFAA. See Cranel Inc. v. Pro Image Consultants Grp., supra. The employee in that case did not `exceed authorized access’ because the employee had authorization to access all files on the computer. See Cranel Inc. v. Pro Image Consultants Grp., supra. An employee `exceeds authorized access’ when that employee `access[es] a computer with authorization and [uses] such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.’ Cranel Inc. v. Pro Image Consultants Grp., supra (citing 18 U.S. Code § 1030(e)(6)).

Goken America, LLC v. Naveen Bandepalya, et al., supra.

He went on to explain that while he did not agree “with this narrow construction”, he did not have to “resolve this issue” because

[e]ven under the Cranel Court's narrow construction of the term `exceeds authorized access,’ Bandepalya did exceed that access. Unlike the situation in Cranel, Bandepalya was only given permission to access the `Business Development’ subfolder within the larger `Admin’ folder. He was not explicitly instructed to avoid the other folders, but in his email to Smith, he only requested access to the `Business Development’ subfolder.

Furthermore, Bandepalya admitted that he understood that the information was confidential and was not to be shared outside of the company, especially with Goken competitors. . . .

Smith testified that it was his understanding that Bandepalya would only operate within the business development folder `[b]ased on the conversation we had and my way of thinking that that's common respect and you don't go looking at other people's personnel information.’ (Transcript of Preliminary Injunction Hearing, Goken America v. Bandepalya, (2014)). He also testified that Bandepalya's `request and the authorization were all specific to the business development [sub]folder.’ Id. Smith's testimony regarding his understanding with Bandepalya, in conjunction with Bandapalya's narrow request to access only the business development subfolder, compel the conclusion that Bandepalya was not authorized to access files that were beyond the purview of his duties and responsibilities.

Goken America, LLC v. Naveen Bandepalya, et al., supra (emphasis in the original).

The judge therefore found that Goken

is likely to succeed on the merits of §§ 1030(a)(2)(C) and (a)(4) because it can show that Goken never gave Bandepalya permission to access to the entire `Admin’ folder. Goken has a high likelihood of success on this point because in his email to Smith, Bandepalya only requested permission to access the `Business Development’ subfolder and not the entire `Admin’ folder.

So even under this Court's narrow reading of the CFAA, Goken is likely to succeed on §§ 1030(a)(2)(C) and (a)(4) because Bandepalya `exceeded authorized access.’ But Goken is unlikely to succeed under § 1030(a)(5)(C) because that section only applies to those `without authorization’ and Bandepalya merely `exceeded authorized access.’

Goken America, LLC v. Naveen Bandepalya, et al., supra.

The judge went on to consider the three remaining preliminary injunction factors, finding, first, that Goken

will likely suffer irreparable harm without this injunction because the case involves corporate trade secrets. Courts are typically sensitive to the irreparable harm that trade secret disclosure can cause. . . . As Defendants point out in their response brief, grounds for irreparable injury include `loss of control of reputation, loss of trade, and loss of good will.’ Kos Pharmaceuticals, Inc. v. Andrx Corp., 369 F.3d 700 (U.S. Court of Appeals for the 3rd Circuit 1989). Because exposed trade secrets could harm a plaintiff's share of the market and cause loss of business opportunities and reputation, this Court finds a strong likelihood of irreparable injury for Goken without a preliminary injunction.

Goken America, LLC v. Naveen Bandepalya, et al., supra.

He then took up the next factor: substantial harm to others. Goken America, LLC v. Naveen Bandepalya, et al., supra.  Goken argued that “the balance of equities" favored

Plaintiff because `no legally cognizable harm occurs . . . by enjoining the unlawful use of Goken Business and Trade Secret Information” and any harm to Bandepalya “is the direct result of his actions.’  Defendants assert that an award of a preliminary injunction would cause their company substantial harm because an inability to service Honda could cause it to go out of business.

The Court can significantly decrease the potential harm to Defendants by allowing the companies AH and Cresttek to continue working with Honda and allowing Bandepalya to continue working for AH and Cresttek. As with the Temporary Restraining Order, the Court prohibits Bandepalya from performing work for Honda but allows him to continue employment by servicing other clients. Although Defendants claim that they might not be able to continue employing Bandepalya if he is prohibited from working with Honda clients, Mr. Bramadesam, an investor in both AH and Cresttek, testified that he has no doubt that Bandepalya would be able to learn the software tools that Cresttek uses for work with other clients like GM. . . . [T]o avoid irreparable injury for the Defendants, this Preliminary injunction will not prevent Bandepalya from working for AH and Cresttek but will prohibit him for working with Honda and on current and prospective Honda business and projects.

Goken America, LLC v. Naveen Bandepalya, et al., supra.

Finally, the judge took up Goken’s argument that “the public interest is served because the public has a legitimate interest in an Ohio company “being able to protect its trade secrets.” Goken America, LLC v. Naveen Bandepalya, et al., supra. The defendants, on the other hand, argued that

the public interest would be harmed if the Court awards a preliminary injunction to Goken because they delayed a claim for seven months. They argue that the preliminary injunction would not `maintain a status quo, which no longer exists’ because of Goken's delay.

Goken America, LLC v. Naveen Bandepalya, et al., supra.

Having considered these arguments, the judge found that the protection of trade secrets

weighs in favor of the public interest. See Kendall Holdings Ltd. V. Eden Cryogenics LLC, 630 F.Supp.2d 853 (U.S. District Court for the Southern District of Ohio 2008). So this factor weighs in favor of Goken because it is in the public's interest for a company to be able to protect its trade secrets. Although Defendants cite the proposition that laches is appropriate to bar injunctive relief when the party seeking relief lacked diligence in pursuing its claim, the Court does not find that Goken lacked diligence in pursuing its claims. A seven month delay, during which time Goken sought to uncover evidence for its litigation, is common in litigation. Defendants have not asserted adequate evidence that Goken lacked diligence in its pursuit of information and in its preparation for litigation.

Goken America, LLC v. Naveen Bandepalya, et al., supra.

The judge therefore found that, based on the above analysis, “the balance of factors weighs in favor of issuing a preliminary injunction in this action.” Goken America, LLC v. Naveen Bandepalya, et al., supra.  He granted Goken’s motion and ordered that

A. Defendants are enjoined from using or disclosing Goken's confidential trade secret information;

B. Defendants are ordered to preserve all documents and electronic files that could be relevant in this lawsuit;

C. Defendants are ordered to identify and turn over all Goken trade secret information;

D. Bandepalya is ordered to deliver all external hard drive and USB devices he connected to his Goken laptop during his employment;

E. Bandepalya is prohibited from engaging in any work relating to Honda and on Honda projects; and

F. Defendants are enjoined from recruiting Goken employees.

Goken America, LLC v. Naveen Bandepalya, et al., supra.

The Juror, the Tweets, Bias and the 6th Amendment

More and more cases dealing with actual or potential juror misconduct involving the use of social media are popping up in the case reports. Here, for example,  after a jury convicted

Rui Yang and her co-defendants, Feng Ling Liu and Vanessa Bandrich (collectively `Defendants’), of one count of conspiracy to commit immigration fraud pursuant to 18 U.S. Code § 371. The evidence at trial established that Defendants, each of whom worked at one of two law firms in New York's Chinatown, conspired over a multi-year period to submit approximately 1,800 fraudulent asylum applications to federal immigration authorities.

Ms. Yang, joined by her co-defendants, now moves for a new trial under Fed.R.Crim.P. 33 based on alleged juror misconduct. They contend that one of the jurors in this matter lied about the fact that she had been routinely posting about her jury service on the social media service Twitter-or `tweeting’-during the trial. Defendants further argue that the juror disobeyed the Court's instructions by tweeting and that the tweets reveal the juror's bias against them. All this, they claim, deprived them of their 6th Amendment right to a trial by an impartial jury. 

U.S. v. Feng Ling Liu, 2014 WL 6076571 (U.S. District Court for the Southern District of New York 2014).  You can read more about the case here.

The District Court Judge began her analysis of the defendants’ argument by explaining that it focused “on the conduct of . . . Juror 2”, who said “during voir dire that she was a self-employed crime fiction writer”.  U.S. v. Feng Ling Liu, supra.  After the jurors were chosen but before the parties began presenting evidence, the judge instructed them on their duty to remain impartial and to only consider evidence presented during the trial.  You can find a similar, but much shorter, instruction here.   The instructions she gave included this one: 

 Do not talk or read about the facts or circumstances of this case on social networking sites such as Facebook or MySpace. Don't tweet about your experience here on Twitter, and don't try and find any information about this case or any similar case, whatsoever.

U.S. v. Feng Ling Liu, supra (emphasis in the original).

After the trial began, the judge received an anonymous email which informed her that Juror 10 was tweeting about the trial.  U.S. v. Feng Ling Liu, supra.  The judge then dismissed that juror.  U.S. v. Feng Ling Liu, supra.  She also spoke with each of the remaining jurors (Juror 10 was replaced by an alternate) to find out if they had “any improper communication with Juror 10”, i.e., whether they had discussed the guilt or innocence of the defendants, the evidence presented, etc.  U.S. v. Feng Ling Liu, supra.  This is the conversation the judge had with Juror 2:

THE COURT: Come on in. So, I'm asking this of all the different jurors just to confirm. Have you spoken or communicated about this case in any way with any of the other jurors?

JUROR 2: No.

THE COURT: Either in person or on social media?

JUROR 2: No.

THE COURT: In particular, have you communicated at all with Juror 10, [name omitted,] about the case?

JUROR 2: I don't know which one she is.

THE COURT: Oh, she is [name omitted].

JUROR 2: Which one is she? She looks like what?

LAW CLERK: She has the short hair.

THE COURT: Dark hair, petite, stylish.

JUROR 2: Oh. No. I'm like I don't know. I know them by like the actress and vegetarian.

THE COURT: Have you talked to anyone about the case, putting aside who she is?

JUROR 2: No, aside from things like, oh, my God, I hope it's over tomorrow and things like that.

THE COURT: Have you followed this at all on the Internet or on social media?

JUROR 2: No.

THE COURT: OK. And I think that's it. Please don't talk to the other jurors even about what I asked you.

JUROR 2: OK, no problem.

U.S. v. Feng Ling Liu, supra.  

On September 5, Yang

filed the instant motion, bringing Juror 2's activities on Twitter to the Court's attention for the first time. Based on the materials provided by counsel, Juror 2's tweets appear to have begun on March 23, the day before opening statements, and to have concluded on April 14, the day the verdict was announced.

U.S. v. Feng Ling Liu, supra.  The defense attorney gave the judge a transcript of all of Juror 2’s tweets.  U.S. v. Feng Ling Liu, supra.  This is how the judge summarized them:

Juror 2's early tweets evidenced both of what would become two recurring themes in her posts. The first was frustration about the commitment required to sit on a long jury trial. On March 23, when asked, `How are you doing?’ she responded: `Eh. Sitting on a jury for the next three weeks. May be interesting, but I don't really have three weeks to put my life on hold. Plus it's Fed court, so it means my jury day goes 7:15am to 6:45pm with the commute:-/.’ Her interlocutor replied, . . . `Can I at least hope you're getting some good material for another book?’ Juror 2 replied: `I don't know. Maybe. You never know what will happen: D I'll tell you once the trial's over:> But I am keeping an eye out.’ This comment about potential ideas for future writing projects was another recurring theme in her tweets. The remaining tweets described various aspects of life as a juror, such as the temperature in the courtroom and whether the jury box chairs were comfortable, as well as whether it would be appropriate to speak with various trial participants at the conclusion of the trial.

On March 26, several days into trial, Juror 2 queried: `I suppose it's inappropriate to ask judges, prosecutors & witnesses to talk to your MWA [Mystery Writers of America] chapter after the trial ends? The same day, another user asked, `How is jury duty going? That is, if you can tell me!!/ Juror 2 replied, again reiterating the difficulties of her commute: `it's okay. The bloody courtroom is FREEZING and the days are long because I have [a] 2hour [sic] commute on each end.’ Juror 2 then mentioned that while `they said the trial would be three weeks,’ having `seen the witness list now, . . . I am betting it goes longer.’ In the subsequent back-and-forth about how long she would be occupied with jury duty, Juror 2 mentioned that she obviously `can't crochet in the courtroom,’ that her `hands shake pretty badly at this point from the back,’ and that `[f]ederal court jury is comfy chairs.’

The next day, . . . Juror 2 again mentioned that the trial `makes [for] a LONG FREAKING DAY’ and that `[i]t's [a] 2 hour commute each way.:(.’ And she again mentioned her writing career. In response to a question about whether she was getting any book ideas, she said: `Oh, plenty!!’ On April 1, her writing came up again when she remarked, `I really like our judge ... she's the kind of person I would be interested in talking to.’ She also observed that she was `thinking about it,’ when asked whether she would invite the judge to speak at a Mystery Writers of America or Sisters in Crime event once her juror service was over. On April 2, Juror 2 again expressed frustration with how long the trial was lasting: “Waiting for the trial to be over so I can have [a] realistic schedule again.’ When asked whether it was `Boring or fun? Or tedious?’ she replied: `Whenever they're doing something new, it's really interesting. But it's incredibly repetitive.’ Her interlocutor replied in agreement: `Nothing like TV. LOL.’ Juror 2 agreed in her reply: `No, and without saying anything a/b [about] the actual proceedings, 3 separate defendants, so every witness gets questioned a LOT.’

Four days later, . . . the tweeting recommenced. One user told Juror 2: `You're almost done with the trial! YOU CAN DO IT!!’ She replied: `And then I can have surgery . . . YAY.”’ The writing theme came up yet again when the user asked: `you've got a lot of good research and plot bunnies, right?’ Juror 2 replied: `Oh, tons. And I am still trying to figure out how to ask the FBI guys, judge, and AUSAs if any of them will talk to my. . . .’ (The balance of the tweet has not been provided.) Later the same day, Juror 2 mentioned her writing again, observing that `I write romantic suspense, so it helps that the criminal aspects interest me. On a civil case, I'd be nuts.’

On April 14, several hours after the verdict was announced and the jury was excused with instructions that it was now free to discuss the case . . . Juror 2 provided her Twitter followers with additional details about the trial: `Okay, for all my tweeps who've been waiting to find out about the jury I've been on forever, this was the case: [Link to FBI press release].’ She went on: `I now know far more about immigration than I ever wanted to and have parsed the legal definition of conspiracy seven ways from Sunday.’ Juror 2 further described the trial, noting: `We had three [defendants:] two lawyers and an office worker. It was really hard and we spent days deliberating.’ In the course of a back-and-forth with multiple users, she twice described the trial as `unreal’ and that the trial had `definitely [provided] book fodder.’ She also commented on `[t]he sheer numbers of clients these guys were doing in a year . . . holy moly. And at 10k to 13k per win.’ She further stated that `one of the defense [attorneys] had the balls in his summation to say that his client was just trying to help poor refugees from rural communities who didn't have the education to get asylum on their own. At $11k a pop.’ Finally, Juror 2 remarked that `these people prey on the fear and relative ignorance of applicants. It's horrible.’

U.S. v. Feng Ling Liu, supra.  

The judge then explained that Rule 33 of the Federal Rules of Criminal Procedure says

that upon a defendant's motion `the court may vacate any judgment and grant a new trial if the interest of justice so requires.’ . . . This rule, the [U.S. Court of Appeals for the 2d Circuit] has explained, affords a trial judge `broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.’ U.S. v. Sanchez, 969 F.2d 1409, (2d Circuit 1992); see also U.S. v. Robinson, 430 F.3d 537, 543 (2d Circuit 2005). `It is well-settled,’ however, `that motions for new trials are not favored and should be granted only with great caution.’ U.S. v. Costello, 255 F.2d 876 (2d Circuit 1958. . . .`The ultimate test is whether letting a guilty verdict stand would be a manifest injustice.’ U.S. v. Aguiar, 737 F.3d 251 (2d Circuit 2013). . . . In other words, `there must be a real concern that an innocent person may have been convicted.’  U.S. v. Aguiar, supra.

U.S. v. Feng Ling Liu, supra.  

She then went on to explain that the 6th Amendment guarantees defendants the right to

trial `by an impartial jury.’ . . . .  `A juror . . .  who posts comments about the trial on [social media], may, in certain circumstances, threaten [that right].’ U.S. v. Ganias, 755 F.3d 125 (2d Circuit 2014) The question here is whether the Juror 2's actions did so. Defendants advance three related arguments.

First, they argue that Juror 2 failed to honestly answer a material question following the discovery of Juror 10's tweets such that, had she answered honestly, Defendants would have had a valid basis to seek her removal. Second, Defendants assert that the juror ignored the Court's express instructions not to post about the trial on social media. Finally, building on the first two claims, Defendants assert that Juror 2's tweets reveal her bias against them.

U.S. v. Feng Ling Liu, supra.  

The judge explained that to prevail on the first argument, the defendants had to

make a two-part showing to receive a new trial based on juror misstatements or nondisclosure. First, Defendants must `demonstrate a juror failed to answer honestly a material question on voir dire,’ and, second, `that a correct response would have provided a valid basis for a challenge for cause.’ McDonough Power Equipment, Inc. v. Greenwood, 474 U.S. 548 (1984).  Both of these elements must be satisfied because defendants are not entitled to a new trial `based simply on whether a ... juror had lied, without respect to whether the dishonesty had a bearing on her impartiality.’ U.S. v. Langford, 990 F.2d 65 (U.S. Court of Appeals for the 2d Circuit 1993).

U.S. v. Feng Ling Liu, supra.  

She ultimately found that the defendants’ argument

fails at step one. First, they assert that Juror 2 `repeatedly denied during questioning that she had communicated about this case on the internet or social media.’ . . . The record establishes otherwise. Indeed, Juror 2 was never asked specifically whether she had discussed the case with anyone on Twitter or other social media. Rather, the Court's questions-which were formulated after discussion with counsel for both sides-queried (1) whether Juror 2 had `communicated about this case in any way with any of the other jurors . . .  [e]ither in person or on social media`; (2) whether she had `talked to anyone about the case, putting aside who she is’; and (3) whether she had `followed this [case] at all on the Internet or on social media.’

U.S. v. Feng Ling Liu, supra.  

The judge then pointed out that while some of Juror 2’s comments

did go further than discussing the duration of the trial, none of those comments strayed outside her explicit acknowledgement of discussing other `things like that.’ These additional comments fall into three categories. The first included miscellaneous banter about the courtroom, such as the `FREEZING’ temperature, not being able to `crochet in the courtroom,’ and the `comfy chairs’ in the jury box. . . . The second category included comments about whether the trial was providing ideas for future writing projects  . . . and the third category concerned whether it would be appropriate to speak with the FBI agents, judge, and prosecutors at the conclusion of the trial. . . . None of these comments evidence a discussion of `the case’ one way or another.

U.S. v. Feng Ling Liu, supra.  

The judge went on to point out that none of Juror 2’s answers were dishonest:

She was first asked whether she had `spoken or communicated about this case in any way with any of the other jurors.’ . . . She responded that she had not. There is nothing to suggest that this answer was anything but true. She was next asked whether there had been any communications with other jurors `[e]ither in person or on social media.’ Again, her response was no, and again, there is nothing to suggest this answer was untruthful. The same is true for the subsequent questions concerning any contacts with Juror 10. Her final answer does not suggest dishonesty either. When asked whether she had `followed this [case] at all on the Internet or on social media,’ Juror 2 answered in the negative. As the Government rightly observes. there is no evidence to suggest this answer was untrue because there is a relevant distinction between posting something and reading it. Juror 2's impugned activities were entirely within the former category and Defendants have not claimed otherwise. Furthermore, as noted above, the tweets she did post cannot fairly be characterized as being about `the case.’ Accordingly, there is nothing in the record to suggest that Juror 2 was anything but honest in responding to the Court's questions on April 9.

U.S. v. Feng Ling Liu, supra (emphasis in the original).

The judge also rejected the defendants’ argument that Juror 2 was biased against them because she tweeted about asking “`judges, prosecutors and witnesses’” to speak at her chapter of the Mystery Writers of America asking the FBI agents and/or prosecutors to do the same.  U.S. v. Feng Ling Liu, supra.  She explained that the “mere fact that a juror is interested in communicating with individuals associated with one party in a case does not, without more, establish bias or permit an inference of bias.”   U.S. v. Feng Ling Liu, supra.  She also pointed out that Juror 2

is a writer of crime fiction-as all parties were well aware from the outset of this case-and it is hardly surprising that she should be curious to speak with the FBI, prosecutors, and the judge for any number of reasons, just as it would not be surprising had she expressed a desire to speak to defense counsel and the judge, or some other combination of trial participants. To find bias in these circumstances, without more, requires crediting speculation over facts.

U.S. v. Feng Ling Liu, supra.  

Finally, the defendants argued that Juror 2

engaged in misconduct by failing to follow the Court's order not to `[t]weet about your experience here’. . . . While it is true that Juror 2 did indeed tweet about her experience, as a preliminary matter, it is clear that the Court's instruction, when read in context, was concerned with comments concerning “the facts or circumstances of this case.” . . . That much was confirmed when, shortly after Juror 10 was dismissed for her actions, the Court observed to counsel that a juror `can say [on social media that] you are on jury duty, you are just not allowed to talk about the substance of it.’ . . .  (emphasis added).

Indeed, Juror 2's tweets show that is precisely how she understood the admonition. On March 23, in response to a question about what she was learning at the trial, she tweeted: `I'll tell you once the trial's over.’ . . . (emphasis added).) Similarly, on April 6, she agreed with another user that the trial was nothing like television shows but added: `without saying anything a/b [about] the actual proceedings, 3 separate defendants, so every witness gets questioned a LOT.’

U.S. v. Feng Ling Liu, supra.

The judge found held that Juror 2 was an

attentive juror who, while engaging in banter with fellow Twitter users about her experience, was nonetheless careful never to discuss the substance of the case, as instructed by the Court. The record is devoid of any evidence that she was either dishonest or biased, or that Defendants were prejudiced by her tweets in any way. Accordingly, and for these reasons provided herein, Defendants' Rule 33 motion is DENIED. 

U.S. v. Feng Ling Liu, supra.   

The Text Message, the Genitalia and Distribution of Material Depicting Nudity

Charles Warren was “indicted for violating  Georgia Code § 16–12–81, with the indictment alleging that he sent an unsolicited text message containing an image of his genitalia to an adult female without notifying her that the message contained nudity.”  Warren v. State, 755 S.E.2d 171, 294 Ga. 589 (Supreme Court of Georgia 2014).  

Warren responded by filing “a general demurrer, arguing that Georgia Code § 16–12–81 does not criminalize his conduct”.  Warren v. State, supra. After the trial judge denied his demurrer, Warren appealed to the state Supreme Court.  Warren v. State, supra.

According to the news story you can find here, Warren

texted the picture of his tattooed penis in October 2012 to a woman who then complained to police. According to prosecutors, Warren's genitals were tattooed with the phrase, `STRONG E nuf 4 A MAN BUT Made 4 A WOMAN.’

On appeal, Warren argued that

the trial court erred in denying his general demurrer to the indictment, because the act alleged in the indictment -- the sending of a nude image of his genitals from his cell phone to the victim's cell phone -- is not prohibited by Georgia Code § 16–12–81.

Warren v. State, supra.

The Supreme Court began its analysis of the issues in the case by noting that “`[w]hen analyzing a general demurrer, the question is whether a defendant can admit to the conduct and still be innocent of the crime.’” Warren v. State, supra (quoting Dorsey v. State, 279 Ga. 534, 538, 615 S.E.2d 512 (2005)).  It then explained that Georgia Code § 16-12-81, which was enacted in 1970, see Ga. L.1970, p. 173, provides:

`(a) A person commits the offense of distributing material depicting nudity or sexual conduct when he sends unsolicited through the mail or otherwise unsolicited causes to be delivered material depicting nudity or sexual conduct to any person or residence or office unless there is imprinted upon the envelope or container of such material in not less than eight-point boldface type the following notice:

`“Notice—The material contained herein depicts nudity or sexual conduct. If the viewing of such material could be offensive to the addressee, this container should not be opened but returned to the sender.”^’

Warren v. State, supra.

The Supreme Court then began its analysis of Warren’s argument by noting that Georgia Code § 16-12-81

is not inapplicable to electronic text messaging merely because that form of communication did not exist when Georgia Code § 16–12–81 was enacted in 1970. See Collins v. Mills, 198 Ga. 18, 22, 30 S.E.2d 866 (Georgia Supreme Court 1944) (holding that a `provision of the constitution is to be construed in the sense in which it was understood by the framers and the people at the time of its adoption,’ but that if new products or circumstances that did not exist at the time the constitutional provision was enacted fall within the meaning of the provision, the constitutional provision applies to them).

Warren v. State, supra.

The court then went on to explain that because the words of Georgia Code § 16-12-81 

at issue here are not `words of art or words connected with a particular trade or subject matter,’ we look to the ordinary meaning of those words at the time the General Assembly enacted the statute in deciding whether the sending of an intangible text message comes within the scope of the statute. See Georgia Code § 1–3–1(b) (`In all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter');  Collins v. Mills, supra.  See also Sandifer v. U.S. Steel Corp.,134 S.Ct. 870 (2014) (holding that, `unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning’ at the time Congress enacted a statute and reviewing dictionaries from the era of the statute's enactment to assist in determining its meaning (citation omitted)).

Moreover, under the canon of noscitura sociis, the words in Georgia Code § 16–12–81(a) should be understood in relation to each other, since ‘[w]ords, like people, are judged by the company they keep.’  Hill v. Owens, 292 Ga. 380, 738 S.E.2d 56 (Georgia Supreme Court 2013).

Warren v. State, supra.

The Supreme Court then returned to the specific issue before it, noting that the statute at issue

contains a specific prohibition against sending unsolicited through the mail material depicting nudity or sexual conduct without the required notice, followed by a more general prohibition against `otherwise unsolicited caus[ing] to be delivered material depicting nudity or sexual conduct to [a] person’ without the statutory notice.

The specific prohibition is clearly aimed at tangible material that is delivered in a tangible manner, see Webster's Third New International Dictionary 1361 (1966) (defining `mail’ as `the bags of letters and the other postal matter conveyed under public authority from one post office to another’), and because [Warren] did not send anything through the mail, he did not violate this prohibition. The question is whether, as the State argues, [Warren] violated the general prohibition.

Warren v. State, supra.

The Supreme Court then took up this question, explaining that when

[c]onsidering the general prohibition in relation to the other words of the statute, we conclude that the general prohibition is limited in the same manner as the specific. The notice provision of the statute says that the notice `must be imprinted on the envelope or container of such material.’ `Such material’ clearly refers to the `material depicting nudity or sexual conduct’ described in the specific and general prohibitions of the statute.

Thus, the statute contemplates that the `material’ that is the subject of both prohibitions has an envelope or container that can have the notice imprinted on it. At the time Georgia Code § 16–12–81 was enacted, an `envelope’ was defined as `something that envelopes: wrapper, container, receptacle’ and as `a flat flexible usu[ally] paper container in many sizes and constructions made by die cutting and gluing with an overlapped back seam and with bottom and closure flaps both adhering to the back portion,’ Webster's Third New International Dictionary 759 (1966), and a `container’ was defined as `one that contains: as . . . a receptacle (as a box or jar) or a formed or flexible covering for the packing or shipment of articles, goods, or commodities.’ Webster's Third New International Dictionary at 491.

In addition, `imprint’ meant `to mark by pressure (as a figure on an object or as the object itself with the figure).’ Webster's Third New International Dictionary at 1137. Given their ordinary meaning, these words indicate that the general prohibition of Georgia Code § 16–12–81, like the specific prohibition, addresses tangible material that has a tangible envelope or container on which the required notice can be imprinted. 

This conclusion is reinforced by the fact that the imprinted notice on the envelope or container must be in `eight-point boldface type’ and must say that the `container’ should be `returned’ to the sender if the addressee does not want to `open’ it.

We thus conclude that the general prohibition of the statute does not apply to the text message that [Warren] sent in this case. The trial court therefore erred in denying [Warren’s] general demurrer to the indictment.

Warren v. State, supra.

The court ended its opinion by noting that

to the extent that it can be argued that after applying the traditional canons of statutory construction, it is unclear whether the statute applies to [Warren’s] conduct, the rule of lenity would require us to give him the benefit of the doubt. See Harris v. State, 286 Ga. 245, 686 S.E.2d 777 (Georgia Supreme Court 2009).

Warren v. State, supra.

You can, if you are interested, read more about the facts and issues in the case in the news stories you can find here and here.