Constructive Possession, the 5th Amendment and Grand Jury Subpoenas

This post is about a case that brings together three principles – constructive possession, the 5^th Amendment privilege against self-incrimination, and a grand jury’s subpoenaing computer evidence – I’ve mentioned in earlier posts.

Before we get into the principles and how they apply/don’t apply here, I need to outline the facts and issue in the case.

The case is In re Grand Jury Subpoena (ABC, Inc.), 668 F.Supp.2d 307 (U.S. District Court for the District of Massachusetts 2009), and this is the context from which it arose:

Since approximately 2001, [John] Doe and James Roe [aliases] have operated a group of companies, including ABC. The present grand jury investigation involves whether Roe paid income taxes on all of his business income, including income he may have received indirectly from Doe.

Jane Jones [was] an ABC employee . . . from April 2003 through February 2009. . . . [S]he worked as Doe's executive assistant, where her duties included paying his personal bills and managing other private financial matters for him. Doe was the co-owner of ABC and Executive Vice President. . . . [A]t Doe's request, Jones created and maintained personal non-ABC documents cataloging non-ABC income and expenses Doe had paid Roe. Although Doe asked her to keep this list on a sheet of paper, Jones maintained it on a spreadsheet, which she labeled `Jane running total.’ She stored this document on her company computer at ABC and in her private, password-protected folder on the computer server used by ABC . . . Jones informed Doe that she kept the tally on her desk top computer. As a result, no one at ABC but Jones and an IT administrator had access to the document. . . .

Jones left . . . and now works for Acme Marketing. . . . Doe also has left ABC. . . . [and] now works at QRS, LLC. . . .

The `running total’ documents remain in Jones' web folder on the network server formerly used by ABC, which has been in the possession of QRS since approximately March 2009, when ABC vacated its offices and ceased operations. When ABC vacated its business in March 2009, the file server was transferred directly to QRS. . . .

In re Grand Jury Subpoena, supra. On May 12, 2009, federal agents served a grand jury subpoena on ABC which, in part, called for ABC to produce the following:

For the period from January 1, 2003, through the present, all documents concerning payments or transfers by Doe to, or on behalf of, Roe. The documents requested include . . . all electronic versions of the spreadsheet entitled `Jane Running Totals', and all e-mail and other communications concerning such payments or transfers.

In re Grand Jury Subpoena, supra. On May 20, ABC’s attorney told the prosecutors handling the grand jury investigation that ABC “had located several documents possibly responsive to” the subpoena but “ABC later claimed it could not produce the requested documents because they were located on a computer server that had been moved to QRS's office.” In re Grand Jury Subpoena, supra. Prosecutors moved to compel ABC to turn over the documents and Doe asked leave to intervene in the case, “asserting a Fifth Amendment privilege over the” documents at issue. In re Grand Jury Subpoena, supra. The Magistrate Judge handling the matter allowed Doe to intervene and granted the prosecutors’ motion to compel production of the documents. In re Grand Jury Subpoena, supra. ABC and Doe appealed the Magistrate’s order to the district court judge, who wrote the opinion we’re dealing with. In re Grand Jury Subpoena, supra.

Doe and ABC argued that the documents were “the property not of ABC, the target of the subpoena, but of Doe”, who argued that “as his property,” they were “protected from disclosure” by the 5^th Amendment privilege. In re Grand Jury Subpoena, supra. I’ve done several posts about people who were served with a grand jury subpoena that required them to produce evidence and responded by trying to invoke the privilege against self-incrimination. As I explained in those posts, a principle known as the “act of production” doctrine can let someone take the 5^th Amendment privilege and refuse to produce documents or other evidence if the act of producing them is “testimonial,” i.e., if it tells the government something it doesn’t know. (For more on that, see this post.)

In the cases I’ve written about and in the vast majority of cases in which someone tries to invoke the 5^th Amendment privilege as the basis for refusing to produce evidence to a grand jury, the person claiming the privilege has the evidence. Here, though, Doe didn’t have the documents at issue; they were on the server ABC Transferred to QRS. So unlike the people I’ve written about before, Doe isn’t trying to avoid his having to produce the evidence, he’s trying to prevent the court from making ABC produce it (or whatever of it ABC still has).

As I’ve explained before, to be able to claim the 5^th Amendment privilege, you must be “compelled” to give “testimony” that “incriminates” you. The act of production doctrine is used to establish that the act of handing over physical evidence constitutes testimony, and those who invoke the doctrine are usually able to show that their production of the evidence would incriminate them. And since they’ve been served with a subpoena that orders them to produce the evidence or be locked up for contempt until they comply, they clearly are being “compelled” to produce the evidence (unless they can prevail on their 5^th Amendment argument).

The federal judge who ruled on the appeal from the Magistrate’s orders began her analysis of the case by noting that the

starting point for the analysis is Couch v. U.S., 409 U.S. 322 (1973), which addressed the question whether a taxpayer may invoke the Fifth Amendment privilege against self-incrimination to prevent the compulsory production of her business and tax records in the possession of her accountant. Rejecting the claim of privilege, the Supreme Court held the `ingredient of personal compulsion’ against the accused was lacking because the order was directed at the accountant, who was the `only one compelled to do anything.’

In re Grand Jury Subpoena, supra. In a later passage from the opinion, the Court said

[a]ctual possession of documents bears the most significant relationship to Fifth Amendment protections against government compulsions upon the individuals accused of crime. Yet situations may arise where constructive possession is so clear . . . as to leave the personal compulsions upon the accused substantially intact.

Couch v. U.S., supra. Since Doe didn’t have actual possession of the documents stored on the server, the judge had to decide if he had constructive possession; if so, she would have to decide if his 5^th Amendment argument was valid. In a recent post, I noted the difference between actual possession and constructive possession. Basically, actual possession means you have “direct physical control” of an item, while constructive possession means that you have “the power and the intention” to exercise control over an item.

The judge who ruled on Doe’s argument noted, first, that since the Couch decision was handed down courts have “taken a narrow view of constructive possession” (at least in 5^th Amendment privilege cases). In re Grand Jury Subpoena, supra. She then found that Doe did not, in fact, have constructive possession of the documents at issue:

The government argues that Doe has not retained constructive possession of the running tally sheet because the personal assistant who created and maintained the running tally sheet for him stored it in her own, personal electronic folder on the company's computer network. Doe had no role in the day-to-day management or use of this document, and he himself could not access it while it was stored in Jones' personal folder, to which only she had the password. At the time the subpoena was served in May 2009, there is no evidence Doe had retained any access to the document, which apparently was in the possession and control of QRS and/or ABC. While Doe may have been working at QRS, the tally remained in Jones' web folder on the computer server, secured by a password that Doe did not have, months after Jones had ceased working as Doe's assistant and for ABC altogether. Because Doe has relinquished substantial control over the tally sheet and is in no sense compelled to produce the documents, he did not have constructive possession of it at the time the subpoena was served.

In re Grand Jury Subpoena, supra. The judge then addressed Doe’s back up argument, which was, as she said, a content-based 5^th Amendment argument: Doe claimed that because the content of the documents at issue would (at least potentially) implicate him in criminal activity, he should be allowed to take the 5^th Amendment and refuse to provide the “testimony” contained in those documents. In re Grand Jury Subpoena, supra. The content of documents is, as the Supreme Court has noted, testimony, and since Doe was focusing on the content as testimony, rather than on the act of producing the documents as testimony, he was a little closer to making a viable 5^th Amendment argument. The problem he – like all the others who have tried to invoke the 5^th Amendment privilege based on the contents of documents that were created at some point in the past – faced was the need for the testimony to be “compelled.”

As the judge noted, the Supreme Court has held that since you voluntarily created documents that already exist (like the records at issue here), the testimony those documents contain was not “compelled,” which means you can’t use the 5^th Amendment privilege as the basis for keeping them from the government. In U.S. v. Doe, 465 U.S. 605 (1984), for example, the Supreme Court noted that the 5^th Amendment “protects the person asserting the privilege only from compelled self-incrimination. . . . Where the preparation of business records is voluntary, no compulsion is present.” (emphasis in the original). The Supreme Court has therefore held that unless a subpoena requires the subpoena recipient to “restate, repeat, or affirm the truth of the contents of the documents sought”, no compulsion is involved and the 5^th Amendment is consequently not available to the person attempting to invoke it.

In other words, Doe lost.

More Juror Misconduct

This is yet another post about technologically based juror misconduct in a criminal trial. As I explained in one of my early posts on the topic, juror misconduct is the term that is used to refer to actions by jurors that are at least arguably inconsistent with their role in a criminal trial.

As I explained in that post, Article III of the U.S. Constitution and the Sixth Amendment to the U.S. Constitution create a right to trial by jury in criminal cases. As I noted, the jurors’ role is to be a finder of facts; if they find the facts needed to convict are proved beyond a reasonable doubt, they’re to convict. If not, they’re to acquit. They’re also, as I explained in the earlier post, supposed to base their fact-finding (and applying the law to the facts) ONLY on what they heard in court, i.e., on the evidence presented in court and the law the judge instructed them on. If jurors go outside those facts and that law, they introduce impermissible variables into their decision-making process, which can result in a verdict being set aside.

That’s what at least arguably happened in State v. Dellinger, 2010 WL 2243511 (West Virginia Supreme Court 2010). Christopher Dellinger, formerly a Braxton County Deputy Sheriff, went to trial on charges of falsifying accounts and obtaining money or goods by fraud. State v. Dellinger, supra. As a Deputy Sheriff, Dellinger was responsible for applying for and

administering various grants for the benefit of the . . . Sheriff's Department. At issue below was whether [he] violated the terms of three grants awarded to the Braxton County Commission by the West Virginia Commission on Drunk Driving Prevention for the purpose of funding equipment or hiring personnel to aid in the enforcement of drunk driving laws. According to the State, the evidence demonstrated [Dellinger] claimed credit for hours he had not worked and time he spent on administrative duties. . . . [T]he State argued that the grant requirements . . . did not provide for payment for administrative work.

State v. Dellinger, supra. Dellinger was convicted and appealed, which brings us to the juror misconduct issue. State v. Dellinger, supra. He learned of the misconduct while the jury was deliberating and once he was convicted, filed a motion for a new trial based on misconduct. State v. Dellinger, supra. The trial judge held a hearing on the issue:

[O]ne week before [the] trial began, Juror Hyre [who had been summoned but had not yet appeared for jury duty] sent a message to [Dellinger’] on `www.MySpace.com’. . . . Juror Hyre, known as `Amber,’ wrote. . . . `Hey, I dont know you very well But I think you could use some advice! I havent been in your shoes for a long time but I can tell ya that God has a plan for you and your life. . . . Talk soon!’ . . .

[A]fter she sent this message to [Dellinger], the two became MySpace `friends’. . . .

[O]n February 13, 2008, during . . . the trial, Hyre posted the following message on her MySpace page: `Amber Just got home from Court. . . . back to court in the morning!’ She also described her `mood’ as `blah.’ This message was . . . available for viewing . . . by all of her approximately 130 MySpace `friends’. . . .

At the . . .hearing . . . Hyre testified that although she and [Dellinger] were MySpace `friends’ the two had never had a face-to-face conversation and did not have a close, personal relationship. She testified that he was `[j]ust somebody I knew,’ and explained that `I knew him. I mean he's a cop in the county; everybody knows all the cops.’ . . .

State v. Dellinger, supra. During voir dire, when the judge asked the prospective jurors if “they had a business or social relationship” with Dellinger, Hyre “remained silent.” State v. Dellinger, supra. When asked why she didn’t tell the court she knew Dellinger, Hyre said “[b]ad judgment, I guess” but also said she didn’t “know him personally” because she’d “never, never talked to him.” State v. Dellinger, supra. (Hyre also failed to mention that she was “related by marriage” to two of the witnesses who testified at trial. State v. Dellinger, supra.)

After the hearing, the trial judge denied Dellinger’s motion for a new trial, finding that

Hyre's `contact with [Dellinger] was minimal, and she was a fair and impartial juror.’ The court found that Hyre `acknowledged that she knew of [him]' from his time . . . as a deputy. . . She also stated that for a time they lived in the same apartment building, but that she has never had a face-to-face conversation with [him].

State v. Dellinger, supra. The judge also found that her MySpace posting “`did not state which trial she was hearing or any facts or opinions about the trial’” and that she didn’t “`disclose this internet contact with’” Dellinger “because she does not feel she really knows [him] as these e-mails represent the entirety of their relationship.’” State v. Dellinger, supra. He appealed, as noted above, to the West Virginia Supreme Court.

That court found that Hyre’s “repeated lack of candor clearly undermined the purpose of voir dire and . . .deprived [Dellinger] of the ability to determine whether she harbored any prejudices or biases against him or in favor of the” prosecution. State v. Dellinger, supra. The Supreme Court also found that Hyre’s responses during the hearing on misconduct “coupled with her repeated silence during voir dire, leads this Court to conclude that she had such connection” with Dellinger “that bias must be presumed.” State v. Dellinger, supra. The Supreme Court noted that during voir dire “several of the jurors” disclosed their ties to Dellinger, which led the trial judge to “further question” them to determine if they “could fairly and impartially consider the evidence and render a verdict without bias or prejudice.” State v. Dellinger, supra. It also noted that Hyre was present when this occurred but “elected not to reveal any information about her connections” to Dellinger.” State v. Dellinger, supra.

And the Supreme Court rejected the trial judge’s finding that Hyre remained silent

because she did not personally `know ‘[Dellinger]' belies the fact that, at the very least, she believed she knew him well enough to give him advice about his divorce. In her February 7, 2008, MySpace message . . . she wrote, `I dont know you very well But I think you could use some advice!’ In stating “I dont know you very well,” it is obvious Hyre felt she knew [him] to some degree; . . . she at least believed herself to be familiar enough with [him] she proceeded to offer him spiritual counsel. Hyre's familiarity with [him] is further suggested by her message's closing remark of `[t]alk soon.’

Furthermore, Hyre formerly lived in the same apartment complex as [Dellinger] but did not reveal that information either. . . .

State v. Dellinger, supra. The Supreme Court therefore reversed Dellinger’s conviction:

[W]e hold that the trial court was clearly wrong in finding Hyre to be a `fair and impartial juror.’ To the contrary, . . . Hyre intentionally and repeatedly failed to be forthcoming about her connections to [Dellinger and the two witnesses], arguably, to improve her chances of serving on [his] jury. Whatever her reasons for doing so, she cannot be considered to have been indifferent or unbiased. . . . . We, therefore, reverse the court's August 11, 2008, order and remand this case for a new trial.

State v. Dellinger, supra.

Maybe you’re wondering why Dellinger didn’t raise the fact that Hyre at least knew him during voir dire and/or at some other time before the jury returned its verdict? According to this opinion, Dellinger said

he did not then recognize Hyre to be the . . . `Amber’ who wrote to him on MySpace. Apparently, `Amber’ from MySpace did not include her last name and, according to [Dellinger], Hyre looked very different from her photograph posted on the website. As indicated above, [he] alerted the trial court to Hyre's MySpace message just following the verdict, having first learned that Hyre and `Amber’ were the same person only a short time earlier.

State v. Dellinger, supra. In a footnote, the Supreme Court pointed out that

unlike Hyre, [Dellinger’s] first and last names appeared on MySpace; identified him as a law enforcement officer; and . . . included a photograph of him in his law enforcement uniform. Thus, we agree with [his] contention that Hyre could not have reasonably failed to recognize [Dellinger] as the defendant in the trial below.

State v. Dellinger, supra.

And while I’m pointing things out, the prosecution’s brief on appeal includes some comments the trial judge made in denying Dellinger’s motion for a new trial which put that ruling into a little more context, maybe:

`It would have troubled the Court if Amber Hyre would have been a social acquaintance of the defendant or something of that sort. While I respect [defense counsel's] argument involving mere acquaintance, I don't know that Ms. Hyre's relationship with any of these parties or with the defendant even comes up to the definition of an acquaintance, in the matter, quite frankly, I would never get a jury in this county on any case because this county is so small that people come in contact everyday. . . . But . . . mere acquaintance, I do not believe it's sufficient and enough to show bias by a juror in the matter.’

Brief of Appellee, State v. Dellinger, 2010 WL 942481 (2010). So far, this is the only reported case I’ve found in which a juror and a defendant were friends on a social networking site.

Miranda, the 5th Amendment and Cell Phones

This post is the product of a discussion I had recently with a law professor who’s writing a law review article on police officers’ ability to search a cell phone under the search incident to arrest (“search incident”) exception to the 4^th Amendment. His article focuses on two issues: One is the extent to which searching a cell phone is within the scope of the search incident exception; the other is what officers do if the cell phone they want to search is password protected, which is the issue this post deals with.

I’ve done at least one post that dealt with using the search incident exception to search the contents of a cell phone; as I noted in that post, courts have that the exception can justify searching through the contents of a cell phone lawfully seized in the course of effecting an arrest. In those and the other cell phone search cases I’ve seen, though, the cell phones weren’t password protected . . . so the officer’s searching them was operationally analogous to an officer’s opening a briefcase (or a purse) and searching it.

What happens if the cell phone’s contents are password protected? To analyze the issues that circumstance raises, we need a scenario to provide the factual basis of our analysis: Assume Officer Doe arrests John Roe for operating a stolen vehicle. Doe clearly has probable cause to make the arrest, and since he’s arrested Roe, the search incident exception clearly applies to authorize a search of Roe’s person, which includes whatever he has in his pockets. As Doe searches Roe, he finds a cell phone in one of Roe’s pockets, seizes it and starts to look through the contents of the phone for, say, text messages or contacts. The phone, though, is locked – password protected.

The issues we’re going to analyze are what happens if Doe turns to Roe and says something like, “Your phone’s password protected . . . I need to search it, give me the password.” We’re going to analyze these issues because (i) they’re likely to come up at some point and (ii) the outcome of the analysis (and even some parts of the analysis) aren’t all that clear. Before we start, though, I want to note what we aren’t concerned with here: This post is about analyzing the Miranda and/or 5^th Amendment issues that arise if Doe asks for the password (or demands it). It isn’t about cracking the password or how officers could use a search warrant/other process to get access to information stored on the phone and/or in Roe’s user account. All we’re concerned about is the Miranda and/or 5^th Amendment implications of Doe’s asking Roe for the password.

We’ll start with the 5^th Amendment (because Miranda somehow derives from the 5^th Amendment). As I’ve explained in several posts, to claim the 5^th Amendment privilege against self-incrimination three conditions must exist: You must be (i) compelled to give (ii) testimony that (iii) incriminates you. “Compulsion” under the 5^th Amendment means a court is ordering you to testify. As the U.S. Supreme Court explained in Doe v. U.S., 487 U.S. 201 (1988), historically the privilege against self-incrimination was

intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts, which would incriminate [someone]. Such was the process of the ecclesiastical courts and the Star Chamber -- the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source.

Doe v. U.S., supra. As the Supreme Court has explained in a number of decisions, the privilege was designed to protect witnesses subpoenaed to testify in a court proceeding from the “cruel trilemma of self-accusation, perjury or contempt.” Murphy v. Waterfront Commission, 378 U.S. 52 (1964). In other words, those summoned by the Court of Star Chamber had three bad choices: (i) refuse to testify and be locked up until they did; (ii) testify but lie, which constituted perjury (a capital crime at the time); or (iii) tell the truth and, in so doing, implicate themselves in a crime. The 5^th Amendment privilege gives us a fourth option -- refuse to answer and not be locked up – as long as the three elements needed to invoke the privilege exist.

In our Doe-Roe scenario, we don’t have judicial compulsion. Doe can’t order Roe to tell him the password and if Roe refuses, lock him up until he does or, if Roe lies, have him prosecuted for perjury and sent to jail. Even without Miranda, Roe could simply refuse to answer. Do we have the other two elements needed to invoke the privilege? I’m going to defer “testimony” because it comes up in the Miranda analysis and we’ll assume, for the purposes of analysis, that giving up the password would incriminate Roe. That’s all moot, however, because we don’t have “compulsion.”

That brings us to Miranda. As Wikipedia notes, there is another, older standard that governs police interrogations – the due process voluntariness test. It derives from a 1936 U.S. Supreme Court decision and still applies to interrogations. Starting in the 1950s, several Supreme Court Justices wanted the Court to adopt a new interrogation law standard, one that, among other things, gave the suspect the right to an attorney. By 1966, things had come together and the Court handed down the Miranda decision, which established the Miranda rules officers must implement in interrogations. In order to justify the new rules, Justice Warren, who wrote the majority opinion in Miranda, said, over and over, that the rules were “based on” the 5^th Amendment privilege against self-incrimination. He never said – because he couldn’t – that they were required by the 5^th Amendment; as I noted above, the requirement of “compelled” self-incrimination simply doesn’t exist in the interrogation room (or in on the scene interrogations). If you read the Miranda dissents, you’ll see dissenting Justices pointed out, quite accurately, that the 5^th Amendment privilege had never been considered to apply to police interrogations. But they were in the minority. A majority of the Court voted for the Miranda rules, so they came into existence and we still use them.

Getting back to Doe and Roe: Roe has been arrested so he’s in “custody” and once you’re in custody (your freedom of movement has been restrained by an officer) you’re entitled to be Mirandized. We’ll assume Doe gave Roe the Miranda warnings before asking for the password and we’ll further assume Roe invoked both his rights to silence and to an attorney. . . which meant Doe could not then “interrogate” Roe. Interrogation is any words or acts by a police officer that he/she should know are reasonably likely to elicit an incriminating statement.

Doe asks Roe for the password. We’re going to assume Roe gives it to him. Roe could do this by telling Doe the password. I don’t want to use that most likely option because I don’t want Roe to speak the password; speaking sounds too much like “testimony” and I want to make the analysis here as difficult as possible. So we’re going to assume Roe’s cell phone’s password protection is based on biometrics, i.e., fingerprint recognition. I’m using that option because while it may not yet exist, it will, probably soon (and because it makes sense to me . . . it’s a lot easier than remembering complex passwords).

So Doe asks Roe for the password and, instead of saying anything, Roe puts his finger on the cell phone’s sensor, it reads his print and unlocks the phone . . . thereby creating two issues. The first is whether Doe has “interrogated” Roe in violation of his invoked Miranda rights . . . and the answer to that, I think, depends on whether Roe’s putting his finger on the sensor is “testimony” under the 5^th Amendment.

In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court incorporated the 5^th Amendment’s requirement of “testimony” into Miranda. Under the 5^th Amendment, I can invoke the privilege against self-incrimination and refuse to testify (which the Court has defined as “communication” that “explicitly or implicitly” relates a “factual assertion” or “discloses information”) but I can’t invoke it and refuse to walk a straight line, say. The Court has consistently held that the 5^th Amendment doesn’t apply to physical actions, like walking or, in the Muniz case, slurring speech because you’re drunk. It held that Miranda did not require the suppression of “slurring of speech and other evidence of lack of muscular coordination” an officer obtained without giving Muniz the Miranda warnings because they were physical movements, not testimony. Pennsylvania v. Muniz, supra.

So, is Roe’s putting his finger on the sensor “testimony?” A defense attorney might argue that it is – that it’s using a physical movement to answer a question. A defense attorney might point out that if Doe had asked Roe, “do you know the password?” and Roe had nodded, the nod would clearly constitute “testimony.” The defense attorney would then argue that Roe’s putting his finger on the sensor was the same thing, i.e. a way of answering the question by providing the password. A prosecutor might argue that it isn’t testimony because Roe’s putting his finger on the sensor neither constituted a factual assertion nor disclosed information; a prosecutor would probably argue that it’s analogous to Muniz’s slurred speed and unsteady walk or to the early twentieth century case in which the Supreme Court held that a suspect’s 5^th Amendment rights weren’t violated when he was required to put on a particular shirt (one worn by a bank robber) and walk in front of the jury. The Court said that was physical evidence, not testimony.

There’s no clear answer there but for the purposes of analysis we’ll assume a court finds that Roe’s putting his finger on the sensor was testimonial (simply because I want to go on to a related issue). All that means is that the court will suppress evidence that Roe put his finger on the sensor: In U.S. v. Patane, 542 U.S. 630 (2004), the Supreme Court held that since the 5^th Amendment privilege only applies to testimony, and since Miranda is based on the 5^th Amendment privilege, a Miranda violation (i) requires the suppression of statements obtained in violation of its requirements but (ii) doesn’t require suppressing “physical fruits” of the violation. In other words, the court would suppress evidence that Roe put his finger on the sensor (which I assume would be the only “testimony” he gave) but wouldn’t suppress the “fruits” of that testimony, i.e., whatever Doe finds in the phone.

Let’s address one more issue and then I’ll end this already overlong post: As I’ve noted in several posts, the Supreme Court has also held that while you can’t invoke the 5^th Amendment privilege as the basis for refusing to provide physical evidence, you can invoke the privilege for the act of producing physical evidence if that act constitutes “testimony.” As I explained in those posts, for the act of producing evidence to constitute “testimony” it must (i) concede that the thing exists (which it must if you’re going to produce it), (ii) concede that it’s in your possession or control and (iii) authenticate the evidence (e.g., you’re handing over what they asked for). As I’ve also noted, producing evidence won’t be testimonial if its existence, your possession of it and its authenticity are all a “foregone conclusion.”

How does this scenario come out if Roe’s act of placing his finger on the sensor is a testimonial act of producing evidence (i.e., the contents of the phone)? A defense attorney could argue that putting his finger on the sensor was the “act” by which Roe “produced” the evidence (which we’ll assume is incriminating) Doe eventually found in the phone . . . an act which conceded that the information existed, demonstrated that it was in Roe’s control and authenticated it, i.e., prosecutors could use the fact that Roe controlled access to the phone to link him to whatever’s found in it. If putting his finger on the sensor is a testimonial act of production, it was testimony obtained in violation of Miranda . . . . which means? . . . what? . . . that not only the act of putting his finger on the sensor but the information police obtained as a result of that act would have to be suppressed?

More on Blockburger, Possession and Distribution

About a year ago, I did a post in which defendants who had separately been convicted of child pornography crimes claimed their convictions violated the U.S. Supreme Court’s decision in Blockburger v. U.S., 284 U.S. 299 (1932). As I noted, in Blockburger the Court addressed Harry Blockburger’s claim that his conviction for selling morphine to the same person – albeit on different days – violated the Constitutional prohibition on double jeopardy.

This post is about a defendant who made a similar argument. I’m doing a post on this case because this court made what I think are some interesting comments about the difference between “possessing” and “distributing” intangible items, versus the tangible drugs that were at issue in the Blockburger case.

The case is U.S. v. Faulds, 2010 WL 2680307 (U.S. Court of Appeals for the 7^th Circuit 2001). This is how the case arose:

On July 16, 2006, . . . James Mooney, a special agent with U.S. Immigration and Customs Enforcement, logged into an Internet chat room called `aLLgirls.’ Mooney knew . . . people used that chat room to trade images of preteen females engaged in sexually explicit conduct. When Mooney entered the room, [James] Faulds' computer was already logged onto the same chat room under the screen name `Wscrypt.’

Mooney made a direct, `client-to-client’ connection with Faulds' file server, which had 2,751 files available, consisting of 1.22 gigabytes of images and 34 folders. One of the folders labeled `Mar’ contained a six-page listing of images. Mooney knew, from his previous experience, that `Mar’ contained images of child pornography. He downloaded 12 images from the `Mar’ folder and a movie from a folder labeled `Girlvids.’ The `Mar’ images depicted a 6- or 7-year-old girl being sexually abused. The movie showed sexual abuse of an 11- or 12-year-old girl.

The software Mooney was using allowed him to determine the IP address for Wscrypt and the service provider for the account. In response to a subpoena to the service provider, Mooney learned Faulds' name and that he lived in Rankin, Illinois. Mooney, who was stationed in Portland, Oregon, forwarded the results of his investigation to ICE Special Agent Michael Mitchell in Springfield, Illinois.

On August 18, 2006, Mitchell and other law enforcement agents . . . executed a search warrant on the home where Faulds was living with his parents. From his bedroom, they seized computers, CDs, and a DVD that contained Faulds' extensive pornography collection, much of which included child pornography. . . .

U.S. v. Faulds, supra.

In January 2007, a grand jury indicted Faulds with distributing a visual depiction of a minor engaged in sexually explicit conduct on July 16, 2006, in violation of 18 U.S. Code § 2252(a)(2), and possessing material containing a visual depiction of such a minor on August 18, 2006, in violation of 18 U.S. Code § 2252(a)(4). U.S. v. Faulds, supra. Although the district court appointed an attorney to represent Faulds, he insisted on representing himself (bad idea); the district court judge allowed him to do so (but ensured stand-by counsel was available). U.S. v. Faulds, supra.

For his defense, Faulds denied . . . knowledge of the child pornography found on his computer. Faulds theorized that someone had accessed his computer remotely, uploaded child pornography to the computer's hard drive, and burned pornographic images to a CD in the computer's CD tray. The jury apparently did not believe Faulds, and after a brief deliberation, returned a verdict of guilty as to each count.

U.S. v. Faulds, supra. As this news story explains, the judge sentenced Faulds to “20 years in federal prison for the distribution offense and 10 years for the possession,” to be served consecutively Faulds appealed, claiming “his conviction on both counts violated the Double Jeopardy Clause” of the 5^th Amendment. U.S. v. Faulds, supra. Since Faulds the lawyer didn’t raise this issue in the trial court, the Court of Appeals reviewed “his claim for plain error”. U.S. v. Faulds, supra. As an online article explains, plain error is

an error which is . . . `obvious,’ and affects the defendant's substantial rights. . . . An error affecting a defendant's substantial rights is one that affects the outcome of the proceedings. The effect of the plain error rule is that even if a defendant raises a valid legal issue on appeal, the court will rarely grant relief if the issue was not first raised in the district court in compliance with the applicable rules.

U.S. v. Faulds, supra. I’m somewhat tempted to say that this illustrates the perils of going to trial (especially in a federal criminal case) without a lawyer, but I really don’t think the outcome would have been different had the issue been raised earlier.

Since Faulds hadn’t raised the issue earlier, the Court of Appeals wasn’t required to review what the district court had done. It began by noting that under the plain error rule, the party asserting error “`must establish (1) that there was in fact an error; (2) that the error was plain; and (3) that the error’” affected the defendant’s substantial rights. U.S. v. Faulds, supra (quoting U.S. v. Van Allen, 524 F.3d 814 (U.S. Court of Appeals for the 7^th Circuit 2008)). The Court of Appeals “conclude[d] that Faulds’ appeal fails at the first step: there was no error, plain or otherwise”. U.S. v. Faulds, supra.

The Court of Appeals explained that while the Double Jeopardy protects a defendant (like O.J.Simpson, say) from being tried twice for the same crime(s), it also bars

multiple punishments for the same offense in a single trial absent legislative intent to the contrary. . . .The test used to determine whether the same act or conduct constitutes one offense or two is the Blockburger test: `where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’ [Blockburger, supra.]

U.S. v. Faulds, supra. Faulds argued that because his convictions were based on possessing and distributing the same material and were, therefore, really only one offense. U.S. v. Faulds, supra. The Court of Appeals did not agree. It first found that Faulds’ argument was not factually accurate:

Because the government did not specify which images Faulds was charged with simply possessing and which he was charged with distributing, Faulds argues that the jury likely convicted him of possessing the same images he was also found to have distributed. And since under the Blockburger test, possession of child pornography is a lesser-included offense of distribution of child pornography, Faulds claims his conviction for both cannot stand.

The obvious defect in Faulds' argument is that the two convictions do not rest on the same set of operative facts.

Count 1 of the indictment charged Faulds with distributing material involving the sexual exploitation of children to Mooney on July 16, 2006, whereas Count 2 was based on [his] possession of such material more than a month later on August 18, 2006. . . . Even assuming the jury convicted Faulds of distribution and possession based solely on the same images (which seems doubtful given the evidence presented), the fact the distribution count was based on events that transpired more than a month before the events giving rise to the possession count is fatal to Faulds' claim that he is being punished twice for the same offense. The crime of distributing the contraband material was complete when Mooney downloaded the twelve images and movie containing child pornography from Faulds' server on July 16. The fact that he continued to possess those and other images thereafter constitutes a separate crime.

U.S. v. Faulds, supra. This part of the ruling is pretty routine, since the Court of Appeals is simply pointing out that, contrary to Faulds’ argument, the two counts were based on factually distinct transactions. It’s the next part of the ruling I found interesting:

Faulds fails to distinguish between contraband in the form of a tangible object, such as a gun or illegal drugs, from child pornography which today almost always consists of intangible images created and transmitted using digital technology. When the contraband is a tangible object, . . . distributing the contraband necessarily means giving up possession, i.e., transferring it to another. Once it is distributed, the contraband is no longer possessed, and its possession prior to distribution is implicit in the distribution itself. The same is not true, however, with respect to distribution of digital depictions of minors being sexually exploited. The transmission of such material . . . is in effect the transmission of a copy, allowing the owner to retain the original on his own computer. Thus, Faulds could continue to possess the digital images on his own computer even after he had distributed identical images to Mooney, leaving him free to view it himself or distribute it to others. Faulds' continued possession of the material after his distribution of a series of images to Mooney therefore constitutes a separate and distinct crime.

U.S. v. Faulds, supra. The Court of Appeals seems to have taken this part of the ruling from comments the prosecution made in its appellate brief:

[E]ven if possession of child pornography is a lesser-included offense of receipt of the same child pornography, it does not follow that the continued possession of child pornography after copies of that pornography have been distributed amounts to a lesser-included offense. . . . [T]he act of distribution does not involve acquiring an item but rather transferring the item to someone else. If the item was a tangible object, such as a gun, the distribution of the gun to another person would amount to relinquishing possession. However, in the context of digital images and movies, it is possible to distribute images . . . and still retain possession of the image. It makes no sense that a person can distribute an image of child pornography and subsequently retain the same image with impunity. Congress surely did not intend such a result. . . .

Brief of Plaintiff-Appellee, U.S. v. Faulds, 2010 WL 2680307. (The brief addresses the lesser-included offense of receiving child pornography issue because Faulds relied on two cases in which federal courts of appeal had held that possession is a lesser-included offense of receipt. U.S. v. Schales, 546 F.3d 965 (U.S. Court of Appeals for the 9^th Circuit 2008); U.S. v. Miller, 527 F.3d 54 (U.S. Court of Appeals for the 3d Circuit 2008)).

(And if you’re wondering who the fellow in the photo is, it’s Justice George Sutherland, who wrote the Blockburger opinion.)

Framing

I was thinking about the false imprisonment post I did last week. I was thinking about the comments that went to using false imprisonment and/or falsifying evidence statutes to prosecute people who use text messages to falsely implicate someone in a crime.

As I thought about the post and the comments, a pretty obvious point occurred to me: Why don’t we simply make it a crime to “frame” someone? As I’m sure we all know, framing someone involves precisely what Ms. Manunga was doing in the case I wrote about, i.e., trying to have an innocent person prosecuted and convicted of a crime they didn’t convict.

(As Black’s Law Dictionary notes, “frame” means “[t]o incriminate (an innocent person_ with false evidence”. Black’s Law Dictionary (8^th ed. 2004). I read once that the term comes from a practice police in some city began using, I think in the nineteenth century: They had a frame in their office and when they needed to solve a crime and didn’t have a clear suspect, they’d decide who should be held liable, take a photo of that person and put it in the frame, the frame somehow being used to identify suspects. That gave rise to the phrase “being put in the frame,” which became frame-up and then frame. I can’t find the book I read that in, so I can’t provide any details . . . but that’s how I recall it.)

Anyway, getting back to the point, it seems to me it might be a good idea to create a new crime, a “framing” crime that could be used, in and of itself, to prosecute those who, like Ms. Manunga, create false evidence and otherwise try to get innocent people convicted of a crime they didn’t commit. I then wondered if such a crime already exists.

As far as I can tell, it doesn’t, at least not in U.S. law. I searched U.S. state and federal cases to try to find one in which someone was prosecuted for the crime of framing another person, but couldn’t find any. I found quite a few cases in which someone raised the premise that they had been framed as a defense to the charges against them, but none in which someone was specifically charged with the crime of framing – or trying to frame – another person.

I then wondered why framing has never been criminalized. After thinking about it, I came up with a theory. See what you think of this idea.

My theory is that framing has never been criminalized because in the past defendants tended to claim they were framed by the police, rather than by private citizens. I found a number of cases, recent and not-so-recent, in which that’s what the defendant claimed happened to him/her. See, e.g., Good v. Curtis, 601 F.3d 393 (U.S. Court of Appeals for the 5^th Circuit 2010) (defendant brought civil rights suit alleging that he was framed by a police officer); People v. Anderson, 2007 WL 4248940 (California Court of Appeals 2007) (defendant claimed “he was framed by a rogue police officer”); People v. McChesney, 39 Cal. App.2d 36, 102 P.2d 455 (California Court of Appeals 1940) (defense attorney claimed police “deliberately `framed’” his client). Not surprisingly, courts (and juries) pretty consistently rejected these claims, which often seem to have been based mostly on what the defendant said had happened to him/her, so the issue of framing doesn’t seem to have been a big issue for the criminal justice system.

In other words, if claims that someone was framed seemed to pretty consistently be specious, there weren’t any innocent victims whose plight might motivate a state legislature to make it a crime to frame someone, or try to. If that premise is correct, it also explains why the cases in which a defendant claimed one of his/her partners in crime was responsible for framing him/her. Those claims never seem to have gone anywhere, either, so, again, if the claims of having been framed are pretty clearly specious, there wouldn’t be any pressing need to adopt laws that would directly outlaw the act of framing (or trying to frame) someone.

So maybe framing itself has not been criminalized because, basically, there were few, if any, credible claims that someone had actually been framed, which meant there wasn’t a problem that needed to be addressed by creating a new crime. Legislatures create new crimes when conduct that inflicts a new and as yet unaddressed “harm” crops up. Think of sexting or cyberbullying. Both of those activities involve the infliction of what some, at least, regard as new “harms” the infliction of which calls for the creation of new crimes. I, personally, don’t agree with that viewpoint, but many people do.

Maybe the lack of credible claims that someone had been framed was also in part due to the difficulty of really framing someone effectively. Police probably were (and are?) the focus of framing claims because they’re in a good position to fabricate evidence, if they are so inclined. Prior to our extensive reliance on online communications, it would be very difficult (albeit not impossible) for a private citizen to create correspondence that could credibly be used to frame a hapless person. You’d have to create letters they supposedly wrote and/or received, be sure you got the signatures (and, if necessary) letterhead right, be sure the appropriate fingerprints (especially the suspect’s) were on them and to really make it credible have them travel through the mail as evidenced by an envelope with a postmark on it. All of that would be quite difficult, probably beyond the resources and talents of people who were likely to frame someone else.

Now, however, as we saw in the Manunga case and in the New Hampshire case that Anonymous posted in a comment, it isn’t all that hard to fabricate credible evidence that a suspect threatened someone or sent messages that could be used to falsely incriminate him/her in the commission of a crime. That change in circumstances might warrant adopting statues that making framing (and trying to frame) someone a crime in and of itself. I emphasize “might” because I’m generally opposed to creating new crimes unless we’re dealing with activity that (i) inflicts serious “harm” and (ii) cannot effectively be prosecuted under other, existing criminal statutes. If and when we decide those two conditions are met for framing (or online framing), we may want to create the new framing crime.

As to the first issue, I think what happened to the victims in the Manunga and New Hampshire cases illustrates that serious “harm” is inflicted by framing, even when the frame is discovered before the victims are convicted and locked up for a while. The second issue, I think, is likely to be the dispositive one in deciding whether or to create a new, “framing” crime.

The two obvious possibilities for prosecuting framing under existing criminal statutes (unless I’m missing some other good candidates?) are false imprisonment and falsifying evidence. As I noted in my last post, I don’t think false imprisonment is a particularly satisfying option because my sense is that at least some U.S. states don’t incorporate the “fraud or deceit” version of false imprisonment into their law. If fraud or deceit isn’t included as a potential element of false imprisonment, you could wind up with results like the one in the Minnesota case I described in the false imprisonment post, the case in which the court threw out the false imprisonment charge because the child wasn’t physically restrained. She was, at most, deceived into staying with her grandparents.

We could address that factor, I suppose, by having state legislatures incorporate the fraud or deceit option into their statutes. Even if we did that, and even if that option proves satisfactory, it strikes me as a pretty cumbersome way to go about prosecuting the crime if I’m right about the prosecution’s having to rely on Model Penal Code § 2.06’s “use of an innocent party” option. That is, since perpetrators like Ms. Manunga don’t themselves confine or restrain the victim but trick the police into doing it for them, it’s kind of an attenuated way (at least IMHO) to go about prosecuting the crime.

What about the other option – the falsifying evidence option? As I noted in one of my comments to the false imprisonment post, most (probably all) U.S. states make it a crime to falsify and/or fabricate evidence “with intent to produce it, or allow it to be produced for any . . . deceitful purpose, as genuine or true, upon any trial” or similar proceeding. California Penal Code § 134. Some of these statutes specify that the person alleged to have falsified and/or fabricated evidence must have done so with the belief that the evidence will be used in a case that’s either pending or that is about to begin.

Here, for example, is Montana’s tampering with or fabricating evidence statute:

A person commits the offense of tampering with or fabricating . . . evidence if, believing that an official proceeding or investigation is pending or about to be instituted, the person:

(a) alters . . . any record, document, or thing with purpose to impair its verity or availability in the proceeding or investigation; or

(b) makes . . . any record, document, or thing knowing it to be false and with purpose to mislead any person who is or may be engaged in the proceeding or investigation.

Montana Code § 45-7-207(a). I don’t see the need to prove that the person falsified or created false evidence believing a criminal case was pending or would be instituted as a particularly significant obstacle in cases like the Manunga or New Hampshire ones. The whole point of manufacturing false evidence is to have a criminal investigation begun, one that leads to a criminal prosecution, so it’s at least inferentially clear that those who perpetrate these schemes are aware that the evidence they create will be used in court.

On the one hand, fabricating/altering evidence statutes clearly could, I think, be used to prosecute the Manungas of the world. The only reason I think we might want to consider creating a framing offense concerns the nature of the “harm” at issue: The “victim” in fabricating/falsifying evidence cases isn’t the person (if any) whom the false evidence is used against; it’s the justice system. The “harm” these statutes address is attempts to corrupt the justice process by debasing the evidence it relies on to adjudicate cases. And often there isn’t any “harm” to a person; defendants or potential defendants often fabricate/falsify evidence in an attempt to avoid being held responsible for crimes or civil wrongs they’ve committed. Regardless, though, of whether individual “harm” results from fabricating or falsifying evidence, the “victim” is the justice system.

When evidence is falsified or fabricated for the express purpose of framing a person, we have the “harm” noted above – the justice system “harm” – but we also have “harm” to an individual victim. If we prosecute the Manungas of the world for falsifying evidence, we really only address the “harm” to the justice system “harm,” or so it seems to me. One of the functions of criminal law is to denounce conduct that society regards as reprehensible and therefore intolerable. When we convict someone of falsifying evidence, we’re denouncing the act of “harming” the integrity of the justice system (only).

I’m not lobbying for a framing offense, at least not yet. My disinclination to create new crimes unless and until that truly seems necessary makes me hesitant to say we need a new, framing crime. So this probably winds up being one of my most – perhaps my most – waffling and inconclusive posts.

File it in the “for whatever it’s worth” folder.