Friday, October 30, 2009

Jurors Use Prosecutor's Laptop . . .

An unusual issue – or what I assume is an unusual issue – came up in Weber v. State, 971 A.2d 135 (Supreme Court of Delaware 2009).

Paul Weber was charged with attempted first-degree robbery and attempted first-degree carjacking in violation of Delaware law. He was tried on both charges and convicted. Here are the facts that led to his being charged:

[A]t approximately 10 p.m., Weber approached Frederick Naspo at the Shell gas station on the corner of Duncan Road and Kirkwood Highway in Wilmington. . . . Seeing an unlit cigarette in Weber's mouth, Naspo told him: `I hope you're not going to smoke that because I'm going to pump gas.’ The parties dispute what, if anything, Weber said in response. Naspo claims Weber attempted to wrestle away Naspo's car keys and steal his car. After a brief struggle with the seventy four year old Naspo, Weber fled in the direction of Duncan Road. Naspo sought shelter in the gas station and the gas station attendant called the police.

Delaware State Police Sergeant Mark Hawk responded to the scene. Naspo described his assailant as `a white male, approximately 35 years old, 5′6″, 5′ 7″ in height, short brown hair, no facial hair, approximately 160 pounds. . . .The person was wearing jean shorts and a blue t-shirt.’ As Hawk interviewed Naspo, New Castle County Police Officer Bernard Alimenti responded to a complaint about a person knocking on doors in the nearby Dunlinden Acres development and asking for a ride to an unknown destination. Patrolling the area, Alimenti encountered Weber, who was wearing blue jeans and a large blue t-shirt. Alimenti stopped and detained Weber outside of a Sleepy's mattress store. Hawk brought Naspo to the Sleepy's store to determine whether Naspo could identify Weber as his assailant. Naspo did not identify Weber as his attacker, and the officers released Weber.

Because the gas station attendant did not have access to the station's video surveillance system, Hawk returned the next day to view the surveillance tape. Upon reviewing the tape, Hawk independently identified Weber as Naspo's assailant. He then obtained a warrant to arrest Weber. Hawk went to Weber's home to execute that warrant and found Weber wearing only his underwear. Hawk `asked permission [from Weber] to go get clothing for him . . . and [Weber] told [Hawk] to go to his room to get his clothing.’ Hawk went to Weber's bedroom and picked up the first clothing items that he saw lying on the floor, `a pair of long jeans and an oversized blue t-shirt.’

Weber v. State, supra.

After being convicted, Weber appealed, raising several different claims. One of his arguments as to why the conviction should be reversed was that

the trial judge denied his right to a fair trial by giving the jury access, during deliberations, `to the [prosecutor's] laptop and everything on the laptop which was not admitted into evidence.’ When the jury retired from the courtroom to deliberate, the prosecutor left his laptop in the courtroom in case the jury wanted to review a CD copy of the gas station surveillance video. The prosecutor already used this same laptop during the trial to play the video for the jury.

Weber v. State, supra. Here, according to the brief filed on Weber’s behalf, is the discussion that led to the jury’s being given access to the laptop:

MR. WALTHER [prosecutor]: I am going to get a sandwich. I think Mel has my cell phone. Your Honor, the CD is in my laptop. If they want to watch it, I don't have any problem with the CD they can't obviously watch anything without the CD. My concern if I take it out, shut down the computer I am not here there is no one to gather it back up. So I would suggest we leave it here in the event they want to look at it they come back and look at it.

THE COURT: You have a position one way or the other?

MR. RAMUNNO [defense attorney]: I guess my understanding if they wanted, you were being to bring them in here. I don't know if what Mr. Walther was talking about giving them access to his notebook what it has on it or does not have it. I have a problem.

THE COURT: That might be dangerous as Mr. Walther's son's.

MR. WALTHER: It is my son's. I think his political science notes, any pictures I am not responsible other than the motor vehicle picture would have to be in here.

THE COURT: I have not had occasion to do that. I guess what I would do is upon being notified, I would move them, have a bailiff bring them in here, turn it on and let them watch it for as long as they thought appropriate, send them back in lock that secure it.

MR. WALTHER: Turn off the microphones. As I indicated in my closing, because of the quality of the projector, because it is projected from a laptop that you lose some of the contrast when you project it. Quite frankly, when the state projected that onto the screen and compared it to the image on the laptop, because of the contrast it's a better computer than the projector, you can clearly see his face. If they look at it I prefer they look at it.

THE COURT: I can't tell them what to do on that sense. I think they have to project it and they can look at it, I guess they are an allowed to have access to both. I don't know how to do it without being in here. I can't be it here, neither can the bailiff. All we can do is play it. That will go through it and stop it.

MR. WALTHER: Give them access to both. That's fine.

Weber v. States, supra.

In his appeal brief, Weber argued that this was error requiring the reversal of his conviction because the jury had

access to the laptop computer and everything on the laptop which was not admitted into evidence. The defendant has an absolute right to be present at every stage of the trial proceedings, including selection and impaneling of the jury, all proceedings at which the jury is present and return of verdict. The ABA Criminal Justice section standard 15-5.1 states the Court should ensure that the evidentiary integrity of the exhibit is preserved. It is unclear how the jury informed the Court it wished to view the video but then apparently were given access to the video and the laptop without prior notice to counsel. . . .

Weber v. State, supra.

Weber’s attorney didn’t object to the admission of the CD as an exhibit at trial, nor did he object to the jury’s reviewing the video during its deliberations. Weber v. State, supra. The defense’s objection was that by giving the jury access to the laptop and everything on it, the court created the possibility that the jury might see material that had not been admitted into evidence at the trial but on which they could, at least in part, rely in finding him guilty of the charges against him. Weber v. State, supra. Weber claimed the jurors “used the laptop and `in fact viewed the video’”, but the Delaware Supreme Court said “the record is devoid of any facts that support that assertion.” Weber v. State, supra.

Weber lost: The Delaware Supreme Court found the trial record established that (i) the prosecutor preferred that the jury watch the CD on the laptop rather than using the screen because they would be able to see the person’s face more clearly on the laptop and (ii) the prosecutor asserted that the laptop “did not contain any other materials related to the case.” Weber v. State, supra. The Supreme Court then held that because “the record does not rebut those assertions, we hold that the trial judge did not abuse his discretion by allowing the jury access to the laptop.” Weber v. States, supra.

I can’t find any other cases like this, which doesn’t really surprise me. Personally, I don’t think it was a good idea to let the jurors have access to the laptop and then, apparently, to leave them unsupervised if and when they decided to use it to view the CD.

As I noted in an earlier post, courts are increasingly unhappy about jurors using computers and the Internet to conduct independent research when they’re in the process of deciding a criminal case. As I explained in that post, when jurors conduct their own research, that violates an essential premise inherent in the notion of a jury trial (or, indeed, of any trial): that the triers of fact (the jurors in a jury trial) will decide the case ONLY on evidence/information that was formally introduced at trial.

It seems to me that leaving the jurors unsupervised to decide if they wanted to use the laptop to view the CD – and/or for any other purposes related to their deliberations – raised the risk of their doing just that. We don’t know if the laptop had Internet access, but even if it didn’t there might have been things on the laptop that could have influenced their decision-making process. They might, for example, have found information that favorably disposed them toward the prosecutor. Information like that has absolutely no legitimate place in their decision-making, but it could still influence them, however subtly.

And we apparently don’t know exactly WHAT was on the laptop. I wonder if Weber’s attorney tried to get some kind of discovery to find out exactly what was on the laptop at the time the jurors were given access to it? It might have been too late; the laptop might have been discarded or its hard drive reformatted by the time the case went to appeal.

It seems to me that what the judge SHOULD have done would be to give the jurors access to a neutral, “clean” laptop, i.e., a laptop that had nothing on it but some basic software. It seems to me that if the prosecutor and the judge and the defense attorney thought it was appropriate to let the jurors use the laptop to view the CD, then the laptop they were given access to should have been, insofar as possible, nothing more than a viewer for the CD. (I’d also want to be sure it didn’t have Internet access, just to eliminate that possibility, as well.)

Just my humble opinion, of course.

Wednesday, October 28, 2009

Fraud on the Court

This post isn’t about a cybercrime case, as such. It is about a kind of related conduct which, in the case I’m going to talk about, involved fabricating an email.

The case is Munshani v. Signal Lake Venture Fund II, LP, 60 Mass. App. Ct. 714, 805 N.E.2d 998 (Massachusetts Court of Appeals 2004) [Munshani v. Signal Lake]. Here, according to the Court of Appeals, is how the fraud on the court issue arose:

On December 18, 2000, [Suni] Munshani commenced this action seeking $25 million in damages on theories of breach of contract, unjust enrichment, and breach of G.L. c. 93A. He alleged oral promises made by the individual defendants, Barton W. Stuck and Michael E. Weingarten, to Munshani, on which Munshani purportedly relied as an inducement to raise capital for Stuck and Weingarten. These individual defendants are in the venture capital business and both are founders, shareholders, and managing directors of defendant Signal Lake II, LLC. Their largest single investment was in a company called Terago Communications, Inc. (Terago), on whose board both individual defendants served.

In their answer . . .the defendants denied Munshani's claim and asserted. . . Munshani had lied to them about his background concerning involvement in litigation and bankruptcy. While acknowledging there had been discussions with Munshani concerning his potential role and compensation by the defendants, the defendants asserted there was never any agreement between the parties, principally because Munshani kept changing and increasing his demands. Among the defendants' defenses to Munshani's claim for breach of contract was a Statute of Frauds affirmative defense.

At the time he initiated the State court proceedings at issue in this appeal, Munshani commenced a companion action in the United States District Court for the District of Massachusetts against Terago, claiming he was entitled to 1.2 million shares of Terago stock based on the same alleged services that formed the basis for his claims in the State court action. Munshani successfully opposed the defendants' motion to dismiss the Federal complaint based on a Statute of Frauds defense by submitting an electronic communication (e-mail) he allegedly received from Terago's president. The Federal judge concluded that the e-mail sufficed . . . to take the case out of the Statute of Frauds. The same e-mail was subsequently submitted in the State court proceedings. It is this e-mail, which was not in fact written or sent by Terago's president, that is at the heart of this appeal.

Munshani v. Silver Lake, supra.

Munshani’s suit was at least partially a breach of contract action. The Statute of Frauds is a defense that can be raised in such an action. As Wikipedia explains, the “statue of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing.” Among other things, the Statue of Frauds applies to contracts that can't be performed within one year, contracts for the sale of goods above a certain value and contracts in which one party becomes a surety for another party’s debt or other obligation. Wikipedia, supra. If a defendant raises a Statute of Frauds defense, the plaintiff can rebut it by showing that the contract was memorialized in writing.

It was apparently after Munshani submitted the same email in the state court proceedings (presumably to block a Statute of Frauds defense in that case, as well) that the defendants moved for an order “seeking the preservation and production for copying all of Munshani’s computer hard drives and related back-up tapes”. Munshani v. Silver Lake, supra. The defendants alleged “that the e-mail submitted in the Federal case was fraudulent”. Munshani v. Silver Lake, supra.

Munshani opposed the motion. . . Munshani submitted an affidavit . . . stating, `I did not tamper or alter the e-mail in any way.’ Munshani acknowledged that Hemant Trivedi (Terago's president and the purported sender of the e-mail in question) had prepared an affidavit stating that Trivedi had not sent the e-mail . . ., and Munshani . . . recognized that `[t]he record suggests that either Munshani or Trivedi has submitted a false affidavit.’ Munshani thus proposed that a neutral expert be appointed by the Superior Court judge to investigate the `extremely serious’ allegations. On March 9, 2001, the judge accepted Munshani's proposal and appointed a neutral expert to investigate the allegations relating to the e-mail's authenticity.

Munshani v. Silver Lake, supra. Six months later, the neutral expert submitted a

147-page report in which he concluded that the e-mail was `clearly not authentic.’ The judge allowed twenty-one days for comment on the report. Munshani filed no objections but, on the very last day of the comment period, submitted a written response invoking his privilege against self-incrimination pursuant to the Fifth Amendment of the United States Constitution. . . . Munshani's response [stated] that he `therefore declines to testify about or respond to the [expert's report].’ The judge accepted the expert's report in its entirety. . . . . [and] the judge inferred from Munshani's response that his affidavit concerning the e-mail was wholly false and a deliberate and intentional fraud on the court. . . . The judge noted that throughout the entire process Munshani . . . never came forward to reveal his fraudulent conduct. The judge thus dismissed Munshani's complaint with prejudice and ordered him to pay the costs and fees of the expert, as well as the defendants' attorney's fees and costs related to the discovery of Munshani's fraud.

Munshani v. Silver Lake, supra. (As I noted in an earlier post, parties can take the 5th Amendment privilege in the context of civil litigation as long as their testimony would implicate them in the commission of a crime.)

Here is how the trial court explained Munshani’s fabrication of the false email:

`[T]he expert's conclusion establishes that Munshani took the header from another e-mail sent to him by Mr. Trivedi, altered the substance of that e-mail to provide supporting evidence that would avoid a statute of frauds defense, and then provided the altered e-mail in response to documentary production and urged its authenticity in sworn affidavits in the Federal Court and in this Court.’

Appellate Brief of the Defendants-Appellees, Munshani v. Silver Lake, 2003 WL 23941453 (Massachusetts Court of Appeals 2003).

The trial court’s dismissal of Munshani’s action was based on the judge’s finding that what Munshani did constituted fraud on the court. Munshani appealed the dismissal, arguing that it did not. Munshani v. Silver Lake, supra.

The Court of Appeals began its analysis of Munshani’s argument by explaining what constitutes “fraud on the court:”

Fraud on the court involves the most egregious misconduct . . . be by parties as well as by their attorneys. . . The court in Rockdale [Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 638 N.E.2d 29 (Massachusetts Supreme Court 1994)] adopted the definition of fraud on the court detailed by the United States Court of Appeals for the First Circuit: Aoude v. Mobil Oil Corp., 892 F.2d 115 (1989): `A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.’ Rockdale Mgmt. Co. v. Shawmut Bank, N.A,.

Munshani v. Silver Lake, supra. In Rockdale, the Massachusetts Supreme Court said dismissing a suit was an appropriate sanction for fraud on the court. Munshani v. Silver Lake, supra.

The Court of Appeals held that (i) Munshani’s conduct constituted fraud on the court and (ii) the dismissal of his action was an appropriate sanction for what he did. Munshani v. Silver Lake, supra. It found that Munshani (i) “set in motion an unconscionable scheme” to defraud two courts, (ii) that was calculated to influence the decision of the state court judge (and apparently did influence the federal court judge) and (iii) that could have “`dramatically changed the face of the [state court] case’” had it not been discovered. Munshani v. Silver Lake, supra.

I decided to do a post on this issue because the case involves allegations of fraud (and sanctions for fraud) even though it isn’t a criminal case. In dismissing Munshani’s action, the trial court judge noted that

`courts are at the mercy of litigants and their advocates . . . in the often difficult search for truth. The ability to discover fraud in the process, particularly sophisticated computer fraud, is greatly limited. Thus, the imposition of strong sanctions is one of the very few ways of deterring such activity in the future. This Court intends such a message here.’

Munshani v. Silver Lake, supra. Even though this was a civil suit and the sanction was a civil, rather than criminal, sanction, the imposition of the sanction was predicated on the same premise that applies in criminal cases: deterring future unlawful conduct.

I wondered if Munshani could have been charged with obstructing or attempting to obstruct justice (assuming the facts stated in this opinion are accurate and could be proven beyond a reasonable doubt), but I can’t find a Massachusetts statute or reported decision that says evidence-tampering constitutes obstruction of justice in violation of Massachusetts law. It must be. If it is, the civil court judge’s dismissing his action as a sanction for fraud on the court probably wouldn’t bar the commencement of a criminal case based on the same conduct. Hudson v. United States, 522 U.S. 93 (1997).

Monday, October 26, 2009

Copying as Search and Seizure

In other posts, I’ve argued that copying data is a “seizure” under the 4th Amendment.

As I explained in those posts, if copying is a 4th Amendment seizure, law enforcement officers must either get a warrant authorizing the seizure or be able to use one of the exceptions to the warrant requirement to justify copying the data. As I noted, if copying data is neither a search nor a seizure, law enforcement officers can copy data without satisfying any of the 4th Amendment’s requirements.

In the earlier posts I explained why I think copying is a seizure, not a search. I also noted that the issue hasn’t come up much; the only reported decision explicitly addressing it is U.S. v. Gorshkov, 2001 WL 1024026 (U.S. District Court for the Western District of Washington 2001), which I discussed in an earlier post.

The Gorshkov court held that FBI agents’ copying data Gorshkov had stored on a server

was not a seizure under the Fourth Amendment because it did not interfere with Defendant's or anyone else's possessory interest in the data. The data remained intact and unaltered. It remained accessible to Defendant and any co-conspirators or partners with whom he had shared access. The copying of the data had absolutely no impact on his possessory rights.Therefore it was not a seizure under the Fourth Amendment. . . .

U.S. v. Gorshkov, supra. I disagree. As I’ve explained in earlier posts, I think copying involves a transfer of some quantum of the value or utility of property, such as data, and therefore constitutes a 4th Amendment seizure.

Another federal district court judge considered the same issue last year, and reached a very different result. The case is U.S. v. Jefferson, 571 F.Supp.2d 696 (U.S. District Court for the Eastern District of Virginia 2008), which I discussed in an earlier post. In that post, I focused on the court’s analysis of whether an FBI agent’s photographing a printed PowerPoint presentation resulted in a seizure of evidence that was justifiable under the plain view doctrine.

This post is going to focus on how the Jefferson court dealt with the preliminary issue: whether photographing the presentation was a 4th Amendment search and/or seizure. If you want a summary of the facts that led to the agent’s photographing of the presentation, please see my prior post on the case.

All we’re concerned about here is whether photographing the presentation was a 4th Amendment search and/or seizure. Jefferson seems to have argued it was both. The federal district court judge who ruled on Jefferson’s argument began his analysis by outlining the applicable law:

The Fourth Amendment protects the `right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.’ . . . Accordingly, it is first necessary to determine whether photographing documents . . . constitutes either a search or a seizure as those terms are used in the Fourth Amendment context. A `search’ occurs when `an expectation of privacy that society is prepared to consider reasonable is infringed.’ Maryland v. Macon, 472 U.S. 463 (1983). A `seizure’ occurs when `there is some meaningful interference with an individual's possessory interests in the property seized.’ [Maryland v. Macon, supra.] The question, then, is whether taking photographs or notes constitutes a meaningful interference with an individual's possessory privacy interest in the property seized.

U.S. v. Jefferson, supra.

The judge explained that the U.S. Supreme Court has held that the 4th Amendment’s provisions encompass “intangible as well as tangible possessory interests.” U.S. v. Jefferson, supra. He found that the Supreme Court’s decisions in Katz v. U.S., 389 U.S. 347 (1967) and Hoffa v. U.S., 385 U.S. 293 (1966) both “support the proposition that an individual has a possessory privacy interest in intangible information”. U.S. v. Jefferson, supra. (I discussed the Katz case in a post I did last June and the Hoffa case in a post I did last August.)

The judge then held that photographing the PowerPoint presentation was at once a 4th Amendment search and a seizure:

Taken together, Hoffa [and] Katz . . . stand for the proposition that the Fourth Amendment protects an individual's possessory interest in information itself, and not simply in the medium in which it exists. In essence these cases recognize that the Fourth Amendment privacy interest extends not just to the paper on which the information is written or the disc on which it is recorded but also to the information on the paper or disc itself. It follows from this that recording the information by photograph or otherwise interferes with this possessory privacy interest even if the document or disc is not itself seized.

U.S. v. Jefferson, supra. The judge noted that the Supreme Court has not addressed

whether seizure of information by . . . photograph is an interference with the possessory interest in the information itself even if it is not an interference with the possessory interest in the medium in which the information is recorded. Nor is this interference with the possessory interest in the information itself (as opposed to the medium in which it is recorded) insignificant, given that taking . . . photographs necessarily diminishes the privacy value of information once privately held but made public by way of the seizure. . . . I[W]hile copying the contents of a person's documents by way of photographs . . . does not interfere with a person's possession of those documents, it does interfere with the person's sole possession of the information contained in those documents: it diminishes the person's privacy value in that information.

U.S. v. Jefferson, supra.

The judge found that any other result would

significantly degrade the right to privacy protected by the Fourth Amendment. Thus, if Fourth Amendment protection did not extend to the information reflected in books and documents, then there would be no constitutional bar to police entering an individual's home pursuant to a lawful warrant and then evading the warrant's limits by recording every detail of the premises and its contents by way of high-resolution photographs . . . in a search for evidence of crimes unrelated to the matter giving rise to the warrant. To put this point more concretely, failure to recognize that photographing . . . private information, without seizing the medium on which the information exists, constitutes a seizure under the Fourth Amendment would allow the government to ignore a narrowly circumscribed warrant in searching a premises containing volumes of documents by simply photographing the documents without removing them, and then reviewing the documents at length back at the station house.

U.S. v. Jefferson, supra. He therefore held that “a search and a seizure of information that is subject to the strictures of the Fourth Amendment occurs where, as here, law enforcement officials photograph the contents of documents”. U.S. v. Jefferson, supra.

I think this judge was absolutely correct when it comes to photographing documents or other items containing informational content. Photographing anything is a way of copying it: Photographing a physical item – a TV set or a gun – makes a partial copy of the item; the photograph captures information about the item (model of the TV or type of gun + the condition either is in) but does not replicate physical item itself. Photographing the contents of a document essentially replicates the document; the copy won’t contain the actual physical attributes of the document (fingerprints, evidence of the paper and ink used to make it, etc.), but it captures the substance of the document.

I’d argue that photographing physical items, including documents, produces a less than complete version of the original item, which I don’t think undermines the Jefferson judge’s analysis. It seems to me a search is a search and a seizure is a seizure for 4th Amendment purposes, regardless of whether it is a total search/seizure or a less than complete (non-zero-sum) search or seizure. The point is that a transfer has taken place that implicates 4th Amendment values in privacy and/or possession.

I think the judge’s conclusion that photographing the PowerPoint presentation was both a search and a seizure is correct given how the photographing had to be done. I was using this case in a presentation a couple of days ago, and an audience member quite correctly pointed out that to photograph the entire presentation (which was apparently lying on a desk), the agent had to flip through the pages. Since the agent must have flipped through the pages of the presentation, he saw what was on each of them; his looking, however briefly, at the content of the pages was a search because a human being observed what was on them. Until he flipped through them, the pages were not visible and so remained private; looking at them compromised that privacy, therefore constituting a 4th Amendment search.

Now let’s extrapolate the Jefferson court’s analysis of photographing documents to the process of copying computer data. I think the seizure part of his analysis applies to copying data because, as the Jefferson judge noted, copying results in a transfer of the information contained on the hard drive that’s copied. Since copying results in a transfer of information (data), we have a 4th Amendment seizure, for the reasons I’ve outlined in earlier posts.

I’m not at all sure that copying data is a search because copying data is an automated process. An agent can copy a hard drive without having to “flip the pages,” as it were. That is, an agent or officer can copy a hard drive without ever looking at the data it contains. That, I think, differentiates the process of copying data from the process of photographing documents; if the process doesn’t necessarily involve direct observation of the information by a human being, I don’t see how it can be a search. (The search, of course, comes later . . . when a human being analyzes what’s on the hard drive.)

The Jefferson opinion was issued by a federal district court judge, a trial court judge. If his opinion had been appealed to a U.S. Court of Appeals and the appellate court had affirmed what he did, we’d have an even stronger precedent because appellate court decisions carry more precedential weight than do trial court decisions. And if it had then gone to the Supreme Court and it had affirmed the trial court judge, we’d have a rock-solid precedent on the issue.

Unfortunately, perhaps (it could have gone the other way), none of that happened. Jefferson did appeal one issue to the U.S. Court of Appeals for the Fourth Circuit, but not the photographing-as-search-and-seizure-issue. He obviously didn’t appeal that issue because he won on it at the trial court level. So since the U.S. Department of Justice didn’t appeal the issue, all we have is the district court judge’s opinion. It will be interesting to see what other courts do with this issue.

Thursday, October 22, 2009

Disturbing the Peace . . . Virtually

According to Wikipedia, disturbing the peace is a crime that is “generally defined as the unsettling of proper order in a public space through one's actions.” Here, for example, is how Idaho defines disturbing the peace:

Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting, or fires any gun or pistol, or uses any vulgar, profane or indecent language within the presence or hearing of children, in a loud and boisterous manner, is guilty of a misdemeanor.

Idaho Code § § 18-6409(1).

This post is about a “computer disturbing the peace” case: State v. Drahota, 17 Neb. App. 678, 2009 WL 1659696 (Nebraska Court of Appeals 2009). It arose “from an exchange of 18 e-mails beginning in late January 2006 and ending February 10, followed by two more e-mails in mid-June 2006-the latter two being the subject of the charge at issue.” State v. Drahota, supra. The case began in January, 2006 when Drahota, “a student at the University of Nebraska-Lincoln, began writing to William Avery, then a professor of political science at the university.” State v. Drahota, supra.

The intitial set of 18 emails – 11 from Drahota and 7 from Avery – were sent between January 27 and February 10, 2006. Essentially, these 18 e-mails are an exchange of differing opinions on a variety of topics, such as the Bush presidency and its policies, . . . the Iraq conflict, . . . the `war on terror’” and related issues. State v. Drahota, supra. The court noted that “Drahota's e-mails are much longer, to the point that such might be called `rants,” and often laced with profanity and invective.” Avery’s responses, “while suggesting disagreement, were quite brief.” State v. Drahota, supra. This series of emails came to an end with

Avery's e-mail of 3:35 p.m. on February 9, 2006, which responded to Drahota's sent at approximately noon that day, in which Drahota asserted that the university's football team would be good in a couple of years `if Al Queda doesn't destroy us first because of Liberals aiding them (just kidding).... You were my favorite instructor from any class .... Even though you're a liberal bum, I'll take you under my wing when the bad times come.’

State v. Drahota, supra. Avery’s reply email said “I will not respond to this. It is far too extreme, vile, and angry. Plus, it is full of untruths about very decent people (including me), whom you insist on accusing falsely of treason. So, let's end this.’” According to the court, this “generated an immediate response from Drahota in which he . . .asserted that his intention was to debate with an instructor and that Avery had mistaken the `tone’ of his e-mails, ending with, “Let's go drink and discuss your campaign.” State v. Drahota, supra. Approximately 20 minutes later, Avery responded with another email in which he said, in part, “I find this offensive and I will not engage in anymore of this with you.” State v. Drahota, supra.

That sparked more emails from Drahota, the content of which varied from threatening to kick Avery’s ass to retracting the threat and trying to be conciliatory. Avery eventually sent this email to Drahota:

Please consider this email a request that you not contact me again for the purpose of spilling more vile. Also, I think you should know that I have saved ALL of your ranting and threatening emails and will not hesitate to turn them over to the police if I hear anything more of this nature from you. Have a nice day.

Drahota sent a conciliatory reply, which Avery ignored. Avery did not hear from Drahota for 4 months, which is when he got “an e-mail . . . dated June 14, 2006, at 11:58 p.m. from `’ with the subject line `Al-Zarqawi's dead’ This was followed on June 16 at 8:50 a.m. with another e-mail to Avery from the same Internet address, with the subject line `traitor.’

State v. Drahota, supra. At that point Avery went to the police. An investigator traced the last 2 emails to Drahota and he was charged with disturbing the peace in violation of Nebraska Statutes § 28-1322. He went to trial, was convicted and was fined $250. Drahota appealed, claiming the evidence was not sufficient to support the conviction. He seems to have argued that the First Amendment barred his conviction. The Court of Appeals disagreed.

It focused primarily on the two June, 2006 emails. The first one asked Avery if he was “sad that the al-queda leader in Iraq will not be around to behead people and undermine our efforts in Iraq.” State v. Drahota, supra. Here’s what the second one said:

I have a friend in Iraq I told all about you and he referred to you as a Benedict Arnold. . . . I'd like to puke all over you. People like you should be forced out of this country. Hey, I have a great idea!!!! . . . . Libs like yourself are the lowest form of life on this planet[.]

State v. Drahota, supra. The Court of Appeals found that these emails were not protected by the First Amendment:

[A]fter a hiatus of 4 months, Drahota, using a libelous e-mail address, accused Avery of being aligned with a terrorist group responsible for unspeakable violence in this country as well as in Iraq against U.S. troops and Iraqi citizens. He called Avery a traitor, said that he wanted to `puke all over’ him, and stated that Avery is the `lowest form of life on this planet.’ This hardly represents civil discourse or debate, and such accusations impugn Avery's loyalty to the United States. And by labeling him a traitor, Drahota has accused Avery of the crime of treason.

State v. Drahota, supra. The court therefore affirmed Drahota’s conviction:

[W]hile we have recounted much of the earlier e-mail . . ., we have done so for background, and to show how what Drahota wrote in June had changed in tone and content. . . . [I]n June, he attempted to hide his authorship, in contrast to the February exchange when he plainly identified himself. And . . . he knew after February 10 that Avery . . . wanted no more e-mail from him. Therefore, our affirmance of the conviction is based on the June e-mails, not the exchange 4 months previously. The evidence is plainly sufficient to sustain the conviction.

State v. Drahota, supra.

I’m not sure that's right. Earlier in the opinion, this court quotes an opinion in which the Nebraska Supreme Court explained what the disturbing the peace crime encompasses:

`A breach of the peace is a violation of public order. It is the same as disturbing the peace. The definition of breach of the peace is broad enough to include the offense of disturbing the peace; it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community. . . .

`The term "breach of the peace" is generic and includes all violations of public peace, order, decorum, or acts tending to the disturbance thereof.'

State v. Drahota, supra (quoting State v. Coomes, 170 Neb. 298, 301-02, 102 N.W.2d 454, 457 (Nebraska Supreme Court 1960)).

Based on that, I’m not sure that what Drahota did to Avery qualifies as “disturbing the peace.” In talking about disturbing the peace, this court and Wikipedia both focus on the premise that what the defendant did violated public order or disturbed the peace and tranquility of the community. The Wikipedia quote includes the option of disturbing the peace of a person, but my understanding of the disturbing the peace crime is that the victim is essentially the community, not a specific individual.

If I’m right, then I don’t think this charge is valid. It looks to me like it would have been more appropriate to charge Drahota with harassment, unless maybe that’s a felony and they wanted to keep the liability at the misdemeanor level.

The case raises some interesting issues. I’ve already addressed one -- whether this crime requires collective victims or can be committed against an individual. What I actually think is the more interesting issue is the one that’s not at issue here: CAN you predicate a disturbing the peace (in the sense of disturbing peace and order in a community) on what someone does online? In other words, as I sit at my laptop in my study in a suburb, is there some way, if I were so inclined, that I could disturb the peace of my community?

I’m not encouraging anyone to try. I’m just wondering if disturbing the peace is a crime that can only be committed in the real, physical world.

Wednesday, October 21, 2009

Terrorism or Terroristic Threat?

This post is about the Supreme Court of Michigan’s decision in People v. Osantowski, 481, Mich. 103, 748 N.W.2d 799 (2008) and the lower court decisions that brought the case to the state Supreme Court.

As this news story explains, in 2005 18-year-old Andrew Osantowski was convicted of “making a terrorist threat” in violation of Michigan Compiled Laws § 750.543m(1)(a). The statute says a “person is guilty of making a terrorist threat” if he or she “[t]hreatens to commit an act of terrorism and communicates the threat to any other person.”

Here, according to one of the briefs filed in the case, is how the charges arose:

Celia McGint, a 16-year old Idaho teenager gave her father, George McGinty, a police sergeant with Washington State University, a `packet of information’ including . . . Internet . . . conversations that she had had with `a person she was chatting with on line.’ After reviewing the document, Mr. McGinty turned it over to his WSU superiors, who forwarded the information to the Clinton [Michigan] Township Police Department [CTPD]. . . .

CTPD Captain Douglas Mills received a call from CTPD Lieutenant Bruce Wade. Wade informed Mills the CTPD had received a facsimile from WSU. The facsimile indicated that McGinty `had received . . . information regarding chat room conversations between his daughter’ and a Clinton Township teenager named Andrew Osantowski . . . Osantowski had made certain `threats’. The facsimile included a copy of the Internet `chat.’ Mills dispatched CTPD detectives to Chippewa Valley High School in Clinton Township, where Osantowski was a student. He also assigned Detective Jeffrey Barbera to serve as the officer-in-charge of the investigation.

David Cannan was the principal of Chippewa Valley. At about 8:30 a.m. [he] . . . learned of the Internet `chat’ involving Osantowski and that the conversations contained `several references to killing.’ Osantowski was a 12th grade student at Chippewa Valley. . . .

At about 10:00 a.m., CTPD detectives placed Osantowski under arrest. A few hours later, . . . Lieutenant Wade interviewed Osantowski at the police station. . . . Lieutenant Wade showed him the document and Osantowski `acknowledged making the remarks.’ He told Lieutenant Wade that he made these threats `[b]ecause [he] was mad.’ . . .

Detective Barbera obtained a search warrant for Osantowski's . . . house. . . . [T]he officers . . . . found a computer in Osantowski's bedroom. . . . In the attic crawl space accessible from the bedroom, [they] found an AK-47[,] . . . . a Mossberg 12-gauge shotgun and an Escort Legacy sports shotgun. . . . [and] substantial amounts of useable ammunition for all three weapons.

[The officers also] found a toolbox containing `about a dozen metal pipes. . . with caps on the ends of some of them, some with no caps with threaded ends, some have screws or nails taped to the outside of them.’ . . . In the same vicinity, [they] discovered a purple bag containing “two one-pound propane containers.’ . . .

At 3:00 p.m., Chippewa Valley cancelled all after-school activities and the CTPD secured the building. The CTPD officers, assisted by canines and deputies from the Macomb County Sheriff's Department searched the building. The following day. . . Chippewa Valley opened its doors. Only about 85% of [its] students attended school that day.

People v. Osantowski, Plaintiff-Appellee’s Answer to Application for Leave to Appeal, 2007 WL 4969062 (Michigan Supreme Court).

Osantowski was convicted of making a terrorist threat, using a computer to commit a crime and possession of a firearm during the commission of a felony. People v. Osantowski, supra. This is the issue that went to the Michigan Supreme Court:

[T]he trial court calculated the recommended minimum sentence range under the sentencing guidelines as 24 to 40 months. It sentenced defendant within this range to 30 months' to 20 years' imprisonment for both the conviction for making a terrorist threat and the conviction for the use of a computer during a crime. . . . [T]he prosecutor had argued that 100 points should have been scored for OV 20 because defendant had threatened to use an incendiary or explosive device; as a result, defendant's recommended minimum sentence range would have increased to 57 to 95 months. The trial court disagreed, concluding that a score of 100 points was appropriate only if the threats themselves also met the criteria to qualify as acts of terrorism. The court found that defendant's threats did not amount to acts of terrorism and that a score of zero points was appropriate for OV 20.

People v. Osantowski, supra. The prosecution relied on a Michigan statute which says the trial court must score 100 points in sentencing an offender if the he “committed an act of terrorism by using or threatening to use, . . . [an] incendiary device, or explosive device.” Michigan Compiled Laws § 777.49a(1)(a). After losing, the prosecution appealed the issue to the Court of Appeals, which reversed the trial court. People v. Osantowski, 274 Mich. App. 593, 736 N.W.2d 298 (Michigan Court of Appeals 2007), reversed by People v. Osantowski, supra. The Court of Appeals found that Osantowski’s “threats to use an incendiary or explosive device” required a score of 100 points. People v. Osantowski (Court of Appeals)..

The Michigan Supreme Court did not agree. It found that the “plain language” of the statute quoted above established that for a score of 100 points to be appropriate, the defendant must have

`committed an act of terrorism by using or threatening to use’ one of the enumerated substances or devices. . . . Thus, the use or threatened use must constitute the means by which the offender committed an act of terrorism. The statute does not state . . . that it applies if the offender `committed an act of terrorism by using or threatening to use, or threatened to use,’ the enumerated items. The statute also provides that . . . `act of terrorism’ means that term as defined by [Michigan Compiled Laws § 750.543b]. Under [§ 750.543b], a threat may constitute an act of terrorism; acts of terrorism must be violent felonies as defined by [§ 750.543b(h)], which specifies that a violent felony is one that includes as an element the `threatened use of physical force ... or the ... threatened use of . . . an explosive device, or an incendiary device.’ But not all threats are acts of terrorism, even if they qualify as violent felonies. To constitute an act of terrorism, a threat must be a violent felony and also must itself be `a willful and deliberate act’ that the offender `knows or has reason to know is dangerous to human life’ and `is intended to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion.” [Michigan Compiled Laws § 750.543b(a).]

People v. Osantowski, supra.

The Michigan Supreme Court found that a score of 100 points is only justified when the defendant’s threats also constituted acts of terrorism. People v. Osantowski, supra. It then turned to the issue of whether Osantowski’s threats constituted acts of terrorism.

The Michigan Supreme Court began by noting that the trial court concluded that his threats “did not themselves constitute acts of terrorism”. People v. Osantowski, supra. After reviewing the evidence the trial court relied on, the Supreme Court held that the trial judge’s decision on the issue was not “clearly erroneous”:

The record shows defendant succeeded only in sending electronic messages to a teenager living in another state. The recipient's father, who happened to be a law enforcement officer in Washington, notified Michigan authorities. The prosecution correctly observes that, as a result of this notification, activities at defendant's high school were disrupted. But we cannot agree with the prosecution that these facts require the conclusion that defendant's threats constituted acts of terrorism for purposes of scoring OV 20. We accept the trial court's ruling that defendant did not commit an act of terrorism. Defendant would not `know[ ] or ha[ve] reason to know’ that his e-mail messages to another teenager were themselves `dangerous to human life,’ [Michigan Complied Laws § 750.543b(a)(ii)]. Nor did defendant actually intend his e-mailed threats to another teenager `to intimidate or coerce a civilian population or influence or affect the conduct of government or a unit of government through intimidation or coercion’. . . .

People v. Osantowski, supra. The Michigan Supreme Court therefore reversed the Court of Appeals’ decision and reinstated the trial judge’s sentencing decision. People v. Osantowski, supra.

As this news story explains, last April, a Michigan county court judge stopped Osantowski from being released from prison after serving the minimum term he was sentenced to (four and a half years). I don’t know if he’s out by now or not.

I think the Michigan Supreme Court got it right. I can see how a terrorist threat can constitute an act of terrorism when the threat itself is used to intimidate or coerce a civilian population or even harm people. Here, though. Osantowski wasn’t sending his threats to the people who were their target; he was sending them to someone in another state, someone he presumably never expected to have them sent to the police and the school in his area. That may qualify as a threat, but I don’t see it as a terrorist threat under the Michigan statute.