Administrative Subpoenas and the 4th Amendment

This post is about a recent decision from the U.S. Court of Appeals for the 4^th Circuit that addressed the use of administrative subpoenas in online investigations.

The case is U.S. v. Bynum 2010 WL 1817763 (2010) and this is how it arose:

On July 8, 2003, FBI Agent Zack, working undercover and using an informant's password, entered a child-pornography online chat group administered by Yahoo! Inc. Zack observed that someone using the moniker `markie_zkidluv6’ had . . . uploaded to the group's website a dozen photos depicting children engaged in sexual acts. On July 10, 2003, Agent Zack again accessed the group and observed that the same user had uploaded several more illicit images.

In an effort to identify `markie,’ the FBI served an administrative subpoena on Yahoo, requesting the subscriber information `markie’ had entered into the Yahoo website when he opened his account, and the internet protocol `IP’) addresses . . . associated with the user's uploads to the Yahoo website.

Once Yahoo provided . . . this information, Zack plugged the IP addresses into a free, public website that directed him to the internet service provider associated with those addresses, UUNET Technologies. The FBI issued a subpoena to UUNET asking for information on the customer associated with the IP addresses. After receiving . . . an email address and telephone number -- which indicated . . . `markie’ had used a phone-based dial-up service . . . to access the internet -- Zack subpoenaed the phone and internet companies that operated the dial-up service. Drawing from their `subscriber information’ records, these companies provided Zack with [Marques] Bynum's name and the physical address from which the uploads emanated: the Charlotte, North Carolina home of Bynum's mother.

On September 22, 2003, Zack entered the chat group again and observed a third upload from `markie’. . . . Zack accessed `markie's’ profile information, which . . . identified him as a 24-year-old single male living in North Carolina who `want[s] to chat with any cute girls that live close by thats [sic] up for a little fun.’ The profile also included a photo of Bynum.

The FBI used this information to prepare an affidavit in support of a search warrant of the Bynum home. A federal magistrate judge issued the warrant and, during the . . . search that followed, the FBI found a laptop computer in a bedroom that the agents recognized as the background for Bynum's profile photo. A subsequent search of the computer revealed the images and video Zack had earlier found uploaded online, as well as 5,074 photos and 154 videos of child pornography.

U.S. v. Bynum, supra. Bynum was indicted on 3 counts of transporting child pornography in interstate commerce (by uploading it to Yahoo's out-of-state servers on three dates) in violation of 18 U.S. Code § 2252A(a)(1) and on 1 count of possessing child pornography that had moved in interstate commerce in violation of 18 U.S. Code § 2252A(a)(5)(B). U.S. v. Bynum, supra. He went to trial, was convicted on all counts and appealed.

On appeal, Bynum argued that “the Government's use of `secret’ administrative subpoenas violated his Fourth Amendment rights.” U.S. v. Bynum, supra. Before we get into the details of that argument, I need to explain what an administrative subpoena is.

Subpoenas can be issued by a judge (judicial subpoena) or by an agency (administrative subpoena). As Wikipedia notes, a subpoena is an order that is issued to someone – or something – directing the recipient to show up and testify and/or to produce evidence to the court or agency that issued the subpoena. A subpoena differs from a search warrant in that it (i) doesn’t have to be based on probable cause; and (ii) isn’t executed by a law enforcement officer. Subpoenas that order the production of evidence therefore don’t have to be based on probable cause because they are a “far less intrusive” method of gathering evidence than are search warrants. U.S. v. Vilar, 2007 WL 1075041 (U.S. District Court for the Southern District of New York 2007). Courts have also found that probable cause is less important in this context because the recipient of a subpoena can go to court and try to have it quashed, i.e., try to have it declared unenforceable. U.S. v. Bailey, 228 F.3d 341 (U.S. Court of Appeals for the 4^th Circuit 2000).

Courts have emphasized that while warrants are executed by law enforcement officers – who come to a person’s home or office and rummage through things looking for evidence – subpoenas are executed by the subpoena recipient. In the Bynum case, the phone and Internet companies received the subpoenas, conducted their own search for evidence responsive to the subpoenas, compiled the evidence and gave it to the FBI. Since the subpoena dynamic isn’t as intrusive as the warrant dynamic, courts have held that subpoenas don’t have to be based on probable cause and conform to MOST of the other requirements the 4^th Amendment imposes on warrants. Courts have imposed a requirement of “reasonableness” on subpoenas. As one court noted, the 4^th Amendment “requires only that a subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.’” Becker v. Kroll, 494 F.3d 904 (U.S. Court of Appeals for the 10^th Circuit 2007).

That brings us back to Bynum. This is Bynum’s argument as to why the administrative subpoenas issued in his case violated the 4^th Amendment:

The FBI compelled the secret production of records by Yahoo, Uunet, Netzero, and BellSouth, by using administrative subpoenas issued by the FBI. These subpoenas informed the recipient not to disclose the subpoena to anybody, thereby preventing an accountholder from seeking to challenge the subpoena. . . .

By keeping the subpoena a secret, the `reasonableness of an administrative subpoena's command’ cannot be contested in federal court before being enforced, and thus is in direct contravention of the `Fourth Amendment's general reasonableness standard.’ . . . See Amy Goodman and David Goodman, America's Most Dangerous Librarians, Mother Jones, September/October 2008 p. 42-43.

U.S. v. Bynum, Brief of Appellant, 2008 WL 4189822. Here’s how the prosecution responded to Bynum’s 4^th Amendment argument:

Bynum's . . . contention is that the administrative subpoenas . . . violated the Fourth Amendment because they were secret. Bynum adduces no case law for this proposition and cites only a Mother Jones article in support of his position.

Authoritativeness of political magazines aside, Bynum is wrong. Although Bynum properly invokes the standard of `general reasonableness’ . . . he completely ignores what the courts have said about administrative subpoenas over the last 60 years. First, the Supreme Court has made clear that administrative subpoenas satisfy the constitution as long as (1) the demand is authorized by Congress, (2) for a purpose with respect to which Congress has authority to act, and (3) the documents are relevant. Okla. Press Publsihing Co. v. Walling, 327 U.S. 186 (1946). . . . Bynum does not contest the administrative subpoena on any of the grounds suggested by these cases. Nor could he: 18 U.S. Code § 3486(a)(1)(A) and (D) expressly authorized the use of administrative subpoenas in cases involving the sexual exploitation of children.

U.S. v. Bynum, Brief for the United States 2008 WL 4974084.

The prosecution won . . . but on what I think is a slightly different theory. Here’s what the Court of Appeals had to say:

`The “touchstone” of Fourth Amendment analysis is whether the individual has a reasonable expectation of privacy in the area searched”’. . . . [U.S. v. Braza, 308 F.3d 430 (U.S. Court of Appeals for the 4<sup>th</sup> Circuit 2002 (quoting Oliver v. U.S., 466 U.S. 170 (1984)]. To demonstrate a legitimate expectation of privacy, Bynum `must have a subjective expectation of privacy, and . . . that subjective expectation must be reasonable.” U.S. v. Kitchens, 114 F.3d 29 (U.S. Court of Appeals for the 4^th Circuit 1997).

Bynum can point to no evidence that he had a subjective expectation of privacy in his internet and phone `subscriber information’ -- i.e., his name, email address, telephone number, and physical address-which the Government obtained through the administrative subpoenas. Bynum voluntarily conveyed all this information to his internet and phone companies. In so doing, Bynum `assumed the risk that th[os]e compan[ies] would reveal [that information] to police.’ Smith v. Maryland, 442 U.S. 735 (1979). Moreover, Bynum deliberately chose a screen name derived from his first name, compare `markie_zkidluv6’ with `Marques,’ and voluntarily posted his photo, location, sex, and age on his Yahoo profile page.

Even if Bynum could show that he had a subjective expectation of privacy in his subscriber information, such an expectation would not be objectively reasonable. . . . `Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment . . . .’ U.S. v. Perrine, 518 F.3d 1196 (U.S. Court of Appeals for the 10^th Circuit 2008). . . .

Because the administrative subpoenas did not invade any legitimate privacy interest possessed by Bynum, their issuance did not violate the Fourth Amendment.

U.S. v. Bynum, supra. The 4^th Circuit is absolutely right . . . under current 4^th Amendment law, Bynum didn’t have a constitutional expectation of privacy in the subscriber information, so he was out of luck.

As I may have noted before, I don’t think Smith v. Maryland was correct when it was decided and I think it’s become increasingly inconsistent with how we live our lives in the over 30 years since. That, though, isn’t the issue I want to focus on here.

Bynum had an interesting argument: As I noted above, subpoenas are subject to minimal 4^th One is that their execution is far less intrusive; the subpoena recipient handles that. This rationale makes sense for requiring a basically de minimis level of 4^th I think it makes less sense when the subpoena recipient isn’t the focus of the investigation . . . someone else, someone who has no say-so in the execution of the subpoena is the focus of the investigation. Amendment protection for two reasons: Amendment protection when the subpoena recipient is the person who is the focus of the investigation.

And on a related note, the other rationale for requiring de minimis 4^th Amendment protection for subpoenas is that the subpoena recipient can go to court and argue that the subpoena shouldn’t be enforced. That, courts have said, is sufficiently analogous to the probable cause requirement which applies to search warrants; probable cause helps ensure that searches aren’t carried out unless there’s good reason to suspect evidence will be found in a given place and to ensure that the search for the evidence will be conducted in a “reasonable” manner. But in cases like this one, the subpoena recipient doesn’t have a stake in the investigation. If a grand jury subpoenas records from a company it’s investigating for fraud, the company can move to quash the subpoena (have it declared unenforceable), which gives it some recourse, some protection for its interests in this aspect of the investigation. When the subpoena is directed to an ISP or a phone company, the company doesn’t have any stake in the process, and the person who does have a stake in the investigation isn’t notified of the subpoena and therefore doesn’t have the opportunity to challenge it.

Maybe that makes sense, maybe it’s the best way to do all this. I guess I would have liked to see this court (or maybe another court?) address the issue Bynum raised, i.e., the increasing disconnect between the subpoena recipient and the person who has a stake in the investigation.

Malware and Search Warrant

A recent decision from a federal district court addresses an issue I hadn’t seen before: whether searching malware on the suspect’s computer was outside the scope of the search warrant issued for that computer. It seems a narrow issue, and unfortunately the opinion issued in the case doesn’t tell us a whole lot about what happened; but I thought the issue was worth writing about, if only to note that it arose.

It arose in U.S. v. Kernell, 2010 WL 1491873 (U.S. District Court for the Eastern District of Tennessee 2010). As you may know, this investigation of David C. Kernell arose from his “alleged access of the Yahoo! email account of then Governor Sarah Palin in September 2008.” U.S. v. Kernell, supra. This, according to the court, is the context from which the malware search issue arose:

On September 20, 2009, Special FBI Agent Andrew M. Fischer sought a search warrant to search [Kernell’s] bedroom and the common areas of the apartment in which [he] resided in Knoxville, Tennessee, in connection with his investigation of [Kernell’s] alleged unauthorized access of an email account belonging to Governor Palin. The . . . United States Magistrate Judge found probable cause and issued the search warrant (`the first search warrant’) that evening. Neither the search warrant and attachments, nor the supporting affidavit contained a search protocol limiting the way in which the computer would be analyzed. The search warrant was executed at 11:55 p.m., on September 20, 2008, and an Acer laptop computer was among the items seized from [Kernell’s] bedroom. Federal agents subsequently conducted a forensic analysis of the . . . computer.

U.S. v. Kernell, supra. The government later obtained and executed a second search warrant for the laptop, but we’re not concerned with it . . . we’re only concerned with the first search warrant.

As a result of the investigation, on

October 7, 2008, [Kernell] was charged by indictment with a single count of felony unauthorized access of a computer. On February 3, 2009, [he] was charged in a four-count Superseding Indictment with identity theft, wire fraud, computer fraud, and anticipatory obstruction of justice.

U.S. v. Kernell, supra. (Basically, anticipatory obstruction of justice encompasses someone’s destroying or tampering with what might become evidence in a civil or criminal case; therefore, unlike traditional obstruction of justice crimes, it doesn’t require that the evidence be destroyed while a case is pending, i.e., already exists. See Dana E. Hill, Anticipatory Obstruction of Justice, 89 Cornell Law Review 1519 (2004)]).

In January of 2009, Kernell filed a motion to suppress evidence obtained as a result of executing the first search warrant. U.S. v. Kernell, supra. On July 27, 2009, he filed his second motion to suppress “Evidence Obtained as Result of Government’s Unauthorized Access of the Laptop Computer,” U.S. v. Kernell, 2009 WL 2337075 (2009) (hereinafter, “Second Motion to Suppress”). This motion essentially argued that after the government seized Kernell’s laptop, its agents “exceeded the scope of [their] authority [under the first search warrant] by examining all of the computer’s contents without the prior judicial approval to do so.” Second Motion to Suppress, supra.

So Kernell was making a scope argument. As I’ve noted in earlier posts, the 4^th Amendment protects us from “unreasonable” searches conducted by the government; as I’ve also noted, a search is “reasonable” if it’s conducted pursuant to a validly-issued search warrant. And, as I noted in other posts, a search conducted pursuant to a search warrant is “reasonable” only as long as the search stays within the scope of the authority conferred by the warrant. So, for example, if police got a search warrant to search your house for a stolen flat screen TV, they could legitimately search your house wherever the TV could be until they find it; once they find it, their search authority is extinguished. And since the warrant authorizes a search for the stolen flat screen TV, they couldn’t look in places where such a TV could not conceivably be, such as dresser drawers. If they did either of these things, their search would have exceeded the scope of their warrant and would be unreasonable under the 4^th Amendment.

Getting back to Kernell. . . he raises the scope of the search issue in his second motion to suppress, but doesn’t mention malware. That emerges in his Reply to Government’s Response to Second Motion to Suppress. U.S. v. Kernell, 2009 WL 2474734 (2009) (hereinafter, “Reply”). (As I think I’ve noted, the motion dynamic is that one side files a motion, the other files a response to the motion and then the movant, the party that filed the motion, can file a reply, which ends the dynamic.)

The malware issue comes up in the section of the Reply in which Kernell is again arguing that the government exceeded the scope of the first search warrant when it searched his laptop:

Mr. Kernell's position has been that the warrant did not authorize the extensive searching evidenced by the forensic reports, meaning that the files were obtained outside the scope of the warrant. . . . [B]ased on the way the examiners understood their assignments, the searching was not limited to the items listed in Attachment B to the first search warrant. See . . . (06/26/09 Supplemental Technical Analysis Report) `“determine if any malware caused outbound communication attempts or provided remote access to the imaged hard drive’). By analysis of the sophisticated malicious code that was somehow installed on the computer before Mr. Kernell possessed it, or otherwise, the government has obtained the following information outside the scope of the authority of the first warrant:

(1) The citibank.com username and password created in March 2008 by Mr. Kernell's aunt and uncle^;

(2) Mr. Kernell's aunt's MasterCard account information used to donate to the Narcolepsy Network in April 2008;

(3) Personal emails to which Mr. Kernell was not party, including emails sent from Mr. Kernell's uncle to Mr. Kernell's aunt, from Mr. Kernell's aunt to Mr. Kernell's cousin;

(4) Mr. Kernell's aunt's PayPal log-on and password information . . . ;

(5) Messages from Facebook account dated September 4, 2008. . . ;

(6) Information that Mr. Kernell downloaded software for Zune on September 11, 2008, a program manufactured by Microsoft to listen to music . . . ;

(7) The results of `[a]n examination for the term ‘Blackberry’ . . . ;

(8) Information related to the allegation of obstruction of justice rather than the charges listed in the first Warrant. . .

Reply, supra. According to the Reply, the

CART report informs that `[t]he hard drive contained a file . . . Activity of the computer user was appended to this file in a chronological progression best described as a log file.’ . . . This . . . `log file’ is actually a malicious computer code. Id. at 4. See also (05/13/09 IAU Report at 2) (describing this malicious code as `an extremely complicated root kit capable of allowing virtually undetected and untraceable access to the hard drive’).

Reply, supra. So that’s the malware issue Kernell raised as one of the arguments in support of his motion to suppress evidence found on the laptop during the execution of the first warrant. On March 31 of this year, the U.S. Magistrate Judge who was assigned this case issued a ruling on Kernell’s second motion to suppress. U.S. v. Kernell, supra.

In ruling on the motion, the Magistrate Judge noted that Kernell was arguing that the agents “examined `malware’ . . . and obtained” the eight items listed above “outside the scope of the first search warrant.” U.S. v. Kernell, supra. He noted that while the prosecution had not filed a reply to the malware allegations, a prosecutor at the hearing on the motion a prosecutor told the court that the items at issue were

seized pursuant to the search warrant as evidence of hacking activities. It argued that the emails and credit card information relating to [Kernell’s] aunt and uncle were relevant to who owned the computer at the time of the offense. It contended that the evidence suggested that more than one person was involved in the commission of unauthorized access of Governor Palin's account, thus it was important to establish who owned the computer and when. [Assistant U.S. Attorney] Goldfoot explained that the agents investigated malware, a program that created and disseminated a log of user activity, in order to rule out the possibility that someone other than [Kernell] gained control of [his] computer and committed the unauthorized access. While admitting that Zune files related to music, Mr. Goldfoot stated that metadata linked to the individual who accessed Governor Palin's account revealed that Zune was installed on the computer used by that individual. He asserted that the fact that Zune files were installed on [Kernell’s] computer and the date of their installation were relevant to proving that his computer was the one communicating with the relevant websites and, thus, was used to conduct the hacking activities.

U.S. v. Kernell, supra. The Magistrate Judge agreed with the prosecutor. He found that the “examination of the malware . . . was proper to establish the identity of the individual conducting the hacking activities.” U.S. v. Kernell, supra. (He also found that the seizure of the eight items at issue was lawful under several different theories.)

As Wikipedia explains and as you may already know, Kernell went to trial and on April 30 of this year was convicted on the obstruction of justice and unauthorized access counts. The jury deadlocked on the identity theft count and acquitted him on the wire fraud count. Wikipedia says he conceivably faces up to 20 years in prison but the sentencing guidelines call for a sentence of 15-21 months and allow for probation.

Jurors Going Online . . . Again

As I’ve noted in earlier posts, it’s improper – misconduct, in fact – for jurors to conduct their own research into factual matters at issue in the case they're going to decide. As I noted, the reason this is not allowed is because it can distort and thereby undermine the fairness of the process.

The judicial system has evolved a system of rules that are designed to ensure that only reliable, relevant information is presented to the jurors and that they are to decide the case based only on that evidence. When jurors conduct their own research into factual matters that undermines – and can even nullify – the effect of the rules that are designed to ensure that a trial is as fair and impartial as possible. Unlike evidence that is properly admitted at trial, the research jurors do is not vetted by anyone except themselves. And since they conduct that research on their own, the prosecution and/or defense never have an opportunity to challenge its accuracy and applicability to the issues in the case.

Okay, that’s why it’s misconduct for jurors to conduct their own research into factual matters at issue in the case. But that’s not the only thing jurors research; they may also research the law, which is equally objectionable but for slightly different reasons. In one of my earlier posts, I noted a case in which a juror had researched the law governing hung juries, i.e., the situation in which jurors aren’t able to decide a case by the requisite majority.

This post is about a somewhat similar case, though in this particular case the research went to legal issues that played a pivotal role in whether the jurors found the defendant guilty or innocent. The case is State v. Aguilar, 2010 1720613 (Arizona Court of Appeals 2010). Jesus Valdez Aguilar was prosecuted for and convicted of attempted first-degree murder based on these facts:

Jorge Castellano was at the Arizona Mills Mall when he received a call from [Francisco Norzagaray]. They agreed to meet in the mall's parking lot. When Jorge exited the mall, [Norzagaray] called him over to a white four-door Altima. Norzagaray] told Jorge to get in the car. When Jorge sat down he saw [Jesus] Aguilar in the front passenger seat and a man he did not know in the driver's seat. After Jorge shut his door, Aguilar turned around right away, pointed a gun in his face, and demanded $900. Aguilar then told the driver to `take off.’ . . .

Jorge looked for a way to get out of the car. When the car came to a full stop at a stop sign, [he] reached for the door and opened it. [Norzagaray] and Aguilar grabbed his arm and began `wrestling’ with him. When the driver accelerated away from the stop sign . . . Jorge's shirt ripped and he fell out of the car. As he was falling, he was shot in the back. Jorge hit the ground and the car kept going. . . .

Jorge was taken to a hospital where . . . it was discovered that he had a shattered kidney and blood in his abdomen. Jorge survived. . . .

State v. Norzagaray, Appellee’s Answering Brief, 2009 WL 5112375 (Arizona Court of Appeals). Aguilar and Norzagaray were charged with attempted first-degree murder and were both convicted. State v. Aguilar, supra. They appealed, claiming the “internet research” two jurors conducted unlawfully tainted the verdicts. State v. Aguilar, supra.

Here’s how the issue arose: At the beginning of their trial, the judge “admonished the jury to `not consult any source, such as . . . the [I]nternet for information,’” and told the jurors “to observe the admonition throughout the trial”. State v. Aguilar, supra. Two of them ignored what the judge said:

[A]fter the court discharged the jury following the conclusion of [the] trial, the bailiff. . . discovered `extraneous documents’ in the notebook of the jury foreman. These documents consisted of printouts of one definition of first-degree murder and three definitions of second degree murder, as obtained from three different Internet sources (the `Internet definitions’). The court informed the parties of the bailiff's discovery, and [Aguilar and Norzagaray] moved for new trial, arguing the jurors' use of this material deprived them of a fair trial.

The [trial judge] held a series of evidentiary hearings in which counsel and the court questioned each juror as to his or her knowledge of and reliance on the Internet definitions during jury deliberations. Juror eight, the jury foreman, testified that after the first day of deliberations, he did a `Google’ search at home on `first-degree murder Arizona’ (emphasis added), spending about one-half hour researching the issue. He printed the Internet definitions, brought them into the jury room, and discussed his research with other members of the jury. The foreman was not the only person who accessed the Internet to obtain definitions; so too did juror number nine, who acknowledged he had researched `premeditation’ (unless otherwise noted, included in the `Internet definitions’). Jurors discussed and considered these Internet definitions during deliberations.

State v. Aguilar, supra. As you probably know, and as Wikipedia explains, before a judge gives a case to a jury he/she instructs the jury on the law they must apply to the facts they’ve heard. The law contained in those instructions is the law the jurors must apply in deciding the case.

Aguilar and Norzagaray argued that the juror’s Internet research tainted the court’s instructions on the law and therefore entitled them to a new trial. In ruling on their argument, the Court of Appeals explained that the defendants would be entitled to

a new trial if it cannot be concluded beyond a reasonable doubt the extraneous information did not contribute to the verdict. . . . Further, once a defendant shows the jury received and consulted extraneous information, prejudice must be presumed and a new trial must be granted unless the State proves beyond a reasonable doubt the information did not taint the verdict.

State v. Aguilar, supra. The Court of Appeals also noted that in deciding whether extraneous information such as legal definitions prejudiced the defendant, a court should consider the “important of the word . . . to the resolution of the case” and the extent to which the definitions the jurors found “differs from the jury instructions”. State v. Aguilar, supra. The court then explained why the definitions at issue were important in deciding the case. It reviewed the facts quoted above and then noted that Aguilar denied having

the gun and any knowledge of the gun until after he heard the shot. Aguilar testified he looked over his right shoulder when he heard J.'s door open, saw J. `hanging out of the door,’ and heard a shot. Aguilar saw the driver hide a gun. According to Aguilar, J. owed the drug debt to the driver, not to him. . . . Norzagaray was not involved in the debt . . . and at no time did he see Norzagaray `grabbing’ J.

Although this conflicting evidence supported an inference Appellants acted with the required premeditation for the attempted first degree murder charge, it also supported a contrary inference-that the shooting occurred impulsively, during the struggle with J. to keep him in the car.

State v. Aguilar, supra. This is why the definition of premeditation the jury relied on was very important in their decision-making process.

The Court of Appeals explained that the defendants were charged with attempting to commit first-degree murder, which meant they “intentionally” committed an act that was a step in a course of conduct they planned would end in their committing that crime. The trial court instructed them on this principle of criminal law. The trial court’s instructions also defined first-degree murder (a defendant intended to and did cause the death of another person and did so with premeditation) and “premeditation” as follows:

`Premeditation’ means the defendant intended to kill another human being . . . and after forming that intent or knowledge, reflected on the decision before killing. It is this reflection, regardless of the length of time in which it occurs, that distinguishes first degree murder from second degree murder. An act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion. The time needed for reflection is not necessarily prolonged, and the space of time between the intent or knowledge to kill and the act of killing may be very short.

State v. Aguilar, supra. The foreman found this definition of first degree murder on legal-dictionary.thefreedictionary.com:

[I]t is generally a killing which is deliberate and premeditated (planned, after lying in wait, by poison or as part of a scheme), in conjunction with felonies such as rape, burglary, arson . . or certain weapons, particularly a gun. . . .

The Court of Appeals explained why this definition was inaccurate and inadequate:

Not only did the Internet definition . . . focus only on whether the killing was `deliberate’ and `planned’ with no mention of `reflection’ . . . and no reference to `heat of passion,’ it also emphasized the nature of the crime . and whether certain weapons were used, . . . factors that, under Arizona law, are not necessarily indicative of a killing that is premeditated. . . .

Underscoring the differences in the superior court's first degree murder instruction with the foreman's Internet first degree murder definition were three definitions of second degree murder obtained by the foreman that. . . described first degree murder in terms either contrary to Arizona law or in a manner that muddied the meaning of premeditation under Arizona law. . . .

State v. Aguilar, supra. The Court of Appeals noted that the other juror’s research wasn’t any better: “Although [juror nine] could not recall the exact content of his research on premeditation, he acknowledged `[o]ne was a definition that wasn't the same as what the Court instructions were or the explanation that the Court gave. The other one was.’” State v. Aguilar, supra.

The court then examined the effect of the information these jurors brought to the jury’s deliberations. It noted that not “only did jurors discuss the Internet definitions during their deliberations, but certain of the jurors used the Internet definitions in considering Appellants' guilt.” State v. Aguilar, supra. The Court of Appeals found that the record

contains clear evidence certain jurors relied on the Internet definitions to develop and shape their interpretations of critical legal terms. . . . [T[he record demonstrates the [trial] court abused its discretion in determining the State had overcome the presumption of prejudice that arose when the jury considered the Internet definitions. . . . [The trial] court should have granted Appellants' motions for a new trial on the attempted first degree murder charge.

State v. Aguilar, supra. It therefore reversed both convictions and remanded the matter for a new trial on the attempted first-degree murder charge. State v. Aguilar, supra.

For some reason, the phrase “don’t try this at home” kept running through my mind when I was reading this case.

The other thing I kept thinking of was “why isn’t some kind of sanction imposed on these jurors?” I’m sure they acted with the best motives, but their misconduct voided the result (correctly, IMHO) in this trial, which means everyone involved (except these jurors) has to do it all over again. Nothing in the Court of Appeals’ opinion or the briefs or anything else I can find tells me how long the trial took, but it took some time and a lot of effort on the part of the judge, attorneys, witnesses and jurors.

It seems to me that some sanction should be imposed on the jurors who caused this. I did some (admittedly brief) Westlaw research, and only found one case in which a court sanctioned a juror for misconduct comparable to this. In Eaton v. State, 192 P.3d 36 (Supreme Court of Wyoming 2008), the Wyoming Supreme Court held that replacing a juror in a murder prosecution with an alternate was an adequate sanction for the juror's misconduct in independently viewing crime scene and reporting his observations to the other jurors. I don’t really see that as much of a sanction, I’m afraid.

Enhancement for Mass Marketing

This post is about a sentencing issue that arose in a federal cybercrime case. Before I get to the case itself, I need to provide a little background on federal sentencing law and practice.

As Wikipedia explains, the federal government uses what is known as guideline sentencing.

As this Congressional Research Service report explains, sentencing in general has historically been based on one of two policies: determine sentencing or indeterminate sentencing. As the CRS report also explains, indeterminate sentencing was the prevailing policy in federal (and most state) sentencing through much of the nineteenth and twentieth centuries. Indeterminate sentencing was popular when the primary purpose of sentencing was to rehabilitate (essentially, to “cure”) offenders; the premise was that, as with medical care, the best way to “cure” those who committed crimes was by imposing a sentence diagnostically calculated to achieve the best results for that particular person. So you were sentenced and then became eligible for release once you were “cured.” (Of course, if you weren’t “cured,” that could be a problem . . . . )

In the 1980s, Congress replaced indeterminate sentencing and rehabilitation as the driving sentencing policy with (i) a type of determinate (fixed) sentencing and (ii) a policy that focused on deterring offenders (pain = disinclination to re-offend), incapacitating them (can’t commit crimes if you’re locked up), exacting vengeance (to some extent) and, if it worked out, rehabilitation. Prior determinate sentencing policies were just that: The crime carried a penalty of 5 years in jail so you did 5 years, no less.

In the Sentencing Reform Act of 1984, Public Law 98-473, Congress adopted a different approach to determinate sentencing: guideline sentencing. That’s the system the federal government (and most states) use now. In the CRS report, you can read about how the federal sentencing guidelines have evolved since. My goal here is simply to outline how they work.

Basically, in a guideline system, there’s a baseline sentence for each offense, which was arrived at by calculating the “harm” resulting from the commission of the offense and other relevant factors. That’s the sentence that should be imposed absent the factors that distinguish guideline sentence from traditional, fixed determinate sentencing. The guidelines also provide for “departures,” i.e., factors that let a sentencing judge deviate somewhat from the baseline sentence.

As the CRS report explains, there are three types of departures: substantial assistance departures (you get a break on your sentence because you provided the prosecution “substantial assistance” on a case or cases); upward departures (enhancements . . . your baseline sentence can be increased based on certain factors) and downward departures (your baseline sentence can be reduced based on other factors). If you want to know more about how all of that works, check out the CRS report or the U.S. Sentencing Commission’s website.

The case is U.S. v. Hall, 2010 WL 1753349 (U.S. Court of Appeals for the 8^th Circuit 2010), and this is how it arose:

In February 2003, [Kermit Kingsley] Hall asked his real estate agent, Heidi Jenkins, to register two trusts, the Kingsley Trust and the Axiom Trust, in Texas. Jenkins registered the two trusts on the same date, at the same courthouse, and with the same business address. Jenkins also opened a bank account for the Axiom Trust at Hall's request. Hall hired Jenkins to serve as the Axiom Trust's trustee, and Jenkins had authority to sign for deposits and withdrawals on the bank account.

Hall began soliciting investors for the Axiom Trust, which Hall falsely trumpeted as a large repository for real estate assets. Hall invited potential investors to purchase $75,000 units of beneficial interest in the Axiom Trust. . . . Hall told prospective investors the face value of the Axiom Trust's shares was guaranteed and the shares would earn high rates of interest. . . .

Hall convinced J.B., T.J., and others to invest in the Axiom Trust. J.B. traded Hall a 10,080 square foot chateau for twenty-seven shares. J.B. was eager to sell the home because his eldest son had recently died and it was painful for his family to continue to live there. T.J. gave Hall $65,000 in exchange for one share. T.J. was trying to help find investors to help him build a church, and Hall told T.J. he would be willing to build the church if T.J. helped Hall `free up funds’ to send to someone in France.

Hall frittered away all of the Axiom Trust's assets. . . . J. asked Hall many times to return his money. Hall repeatedly rebuffed T.J.'s efforts. . . .

In January 2006, Hall met Joseph Cooper, a certified public accountant in St. Louis. . . With the promise of a $300,000 annual salary, Hall hired Cooper to serve as the Kingsley Trust's accountant and later as trustee. At Hall's direction, Cooper and David Jarman, a local financial advisor whom Hall had appointed as a trustee of the Kingsley Trust, opened bank accounts in the St. Louis area for the Kingsley Trust. Cooper and Jarman became the accounts' signatories, but Hall controlled the funds.

Hall hired Jarman to develop a website for the Kingsley Trust. Hall drafted and controlled the website's content, and Jarman focused on the website's layout. The Kingsley Trust's website promoted, `[G]uaranteed deposits that post annual rates twice the norm’ and `Kingsley Trust erases the guesswork with "principal guarantee.”’ The website contained a form onto which visitors could submit their contact information to learn more about investing in the Kingsley Trust.

C.O. invested in the Kingsley Trust after Hall promised to help build a church. . . . S.E., an unemployed truck driver, invested $10,000. J.K . . . invested $10,000. I.M., a recent widow . . . , invested $75,000. . . .

As with the Axiom Trust, Hall misappropriated the Kingsley Trust's assets instead of investing them. Cooper directly helped Hall perpetuate the fraud, but Jarman did not. When Jarman discovered Hall was not investing the Kingsley Trust's assets, . . . . [he] contacted the Federal Bureau of Investigation (FBI), and an investigation ensued. . . .

U.S. v. Hall, supra. There’s actually a lot more, but you get the idea. As the result of the investigation, Hall was charged with 1 count of mail fraud and 2 counts of wire fraud; he went to trial and was convicted on all counts. U.S. v. Hall, supra.

At sentencing, the district court calculated Hall's Guidelines range to be 57 to 71 months imprisonment, based in part on a two-level enhancement for mass marketing under § 2B 1.1(b)(2)(A). The district court sentenced Hall to 59 months imprisonment and ordered him to pay over $525,000 in restitution. . . .

U.S. v. Hall, supra. Hall appealed, claiming the judge erred in assessing the two-level mass-marketing enhancement. U.S. v. Hall, supra. Here’s his argument:

Hall argues the district court erred in applying the mass-marketing enhancement because his victims would have `invested’ in the Kingsley Trust notwithstanding its website. Hall maintains he did not commit any fraud through mass marketing because it was his force of personality and connections with a trusted local accountant, financial advisors, and others-not the Kingsley Trust's website-that convinced his victims to part with their money. Hall also proposes the record contains little evidence his victims visited the website.

U.S. v. Hall, supra (emphasis in the original). The U.S. Sentencing Guidelines, which create the enhancement, define mass-marketing as including fraudulent schemes (Hall was convicted of 3 counts of fraud) “conducted through solicitation by . . . the Internet . . . to induce a large number of persons to . . . invest for financial profit.” U.S. Sentencing Guidelines § 2B 1. 1, cmt. n. 4(A). The U.S. Court of Appeals found that the district judge did not err in applying the enhancement to Hall’s sentence:

Even if we assume the Kingsley Trust's website did not convince any of Hall's victims to invest and was not widely viewed, the district court nonetheless did not err in applying the . . . enhancement. In amending § 2B 1. 1, the United States Sentencing Commission stated it intends the . . . enhancement `to apply in cases in which mass-marketing has been used to target a large number of persons, regardless of the number of persons who have sustained an actual loss or injury.’ U.S.S.G. app. C, amend. 617 (Supp.2003). The fact that few people fell into Hall's virtual trap has little relevance . . . so long as Hall attempted to use the Kingsley Trust's website to solicit funds from a large number of persons. . . . The . . . enhancement applies regardless of whether, in a hypothetical world, Hall could have successfully solicited his victims employing the more traditional arts of persuasion. . . . The mere fact Hall operated a website devoted to the solicitation of investments in his fraudulent scheme is sufficient. . . [He] does not dispute . . . that the Kingsley Trust's website was fully accessible to millions of persons worldwide via the Internet. . . .

`[M]ere use of a website is not sufficient to trigger’ a mass-marketing enhancement. . . . Hall did more than merely use a website. Hall's website was not intended to be a garden-variety website: Jarman testified he worked over 1,000 hours on the website, for which Hall promised to pay him $50,000. Hall placed `a billboard on the information superhighway’ to advertise his fraudulent scheme. Soliciting investments in the Kingsley Trust `was not a minor part of [the] website’ but `the very reason the site existed.’

U.S. v. Hall, supra (quoting U.S. v. Hanny, 509 F.3d 916 (U.S. Court of Appeals for the 8^th Circuit 2007)).

Other courts have reached the same conclusion as to the enhancement’s applicability when the government doesn’t tie it to actual victims. See U.S. v. Zein, 2009 WL 4884973 (U.S. District Court for the District of Michigan 2009). It’s consistent with the definition of mass-marketing quoted above and an Application Note the U.S. Sentencing Commission included in the Guidelines to help judges apply them. Both note that mass-marking involves the “solicitation by telephone, mail, the Internet, or other means to induct a large number of persons to” buy things, participate in a content or “invest for financial profit.” The purpose, then, is to impose heavier penalties on those who try to use websites to enhance their pool of victims, as well as those who actually do.

(The photo, in case you’re wondering, is of Carlo Ponzi, as in Ponzi scheme.)