Monday, February 11, 2013

Daubert, Stories and Child Pornography

On September 1, 2005, James Thomas Flocker was indicted on charges of transporting, distributing and possessing “visual depictions of minors engaged in sexually explicit conduct” in violation of federal law.  Brief of Appellee United States of America, U.S. v. Flocker, 2012 WL 1132072.   

His first trial began on September 21, 2009, but, after hearing all the evidence, that jury “was unable to reach a verdict,” so the district court judge who had the case “declared a mistrial on October 1, 2009.” Brief of Appellee, supra. His second trial began on February 22, 2010 and that jury “returned guilty verdicts on all counts on February 26, 2010.”  Brief of Appellee, supra.  

 Flocker then appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit.  U.S. v. Flocker, 2013 WL 223177 (9th Cir. 2013). 

This, according to the prosecution’s brief on appeal, is how the charges came about:

[Flocker] created the Yahoo! identity `guy2guy6920012002’ on July 10, 2004, using the IP address assigned to his company, Digital Software Services, in Chico, California. . . . Yahoo! records identified `Mr jim flocker’ of `Chico, CA 95973’ as the subscriber of the `guy2guy6920012002’ account. . . . The alternate email address for the account was jflocker, defendant's work email address. . . .

[Flocker], using the identity `guy2guy6920012002, uploaded eighteen files to the Yahoo! group `kidcracker09’ on July 16, 2004. S.E.R. . . . Four of those eighteen images were admitted into evidence as Exhibits 23.1 through 23.4. . . . 

One of those images, `laid back summer nite.jpg,’ was from the `Jesse’ series and depicted a known minor engaged in sexually explicit conduct. . . . The `Jesse’ series was created in Kentucky. . . . [Flocker] uploaded the files using the IP address assigned to Digital Software Services. . . . .

On October 27, 2004, FBI agents and state officers executed a federal search warrant at Digital Software Services and seized various computer equipment, including [Flocker’s] laptop computer. . . . A couple of weeks later, Eric Partika, who was a detective and forensic examiner with the Chico State police working with the Safe Streets Task Force, examined [Flocker’s] laptop. . . .  Partika and FBI Special Agent Richard Davidson reviewed [his] laptop and identified several hundred images in the `pics’ folder.

[Flocker] had grouped several subfolders within the `pics’ folder, including a subfolder titled `Me,’ which contained photographs of [him] engaged in sexually explicit conduct and masturbation as well as photographs of an unknown male. . . . A selection of images from the `pics folder’ was admitted into evidence [at trial]. . . .

Brief of Appellee, supra. 

The government’s brief also notes that during his analysis,

Partika found an email sent by [Flocker] using the email address on August 12, 2003. . . .. The email was to `ryan c,’ and it appeared as part of an email exchange in which [Flocker] misidentified himself as a nineteen-year-old youth living in southern California. . . . [Flocker] had attached three files to the email marked Exhibit 41: boypee10.jpg, boypee11.jpg, and boypee12.jpg, which depicted minor boys urinating.

Brief of Appellee, supra. 

Flocker made several arguments on appeal, only two of which I am going to address in this post.  He argued (i) that the district court judge erred when he let Partika testify as an expert witness and/or (ii) that the judge erred “by admitting evidence of four prurient stories as other act evidence of Flocker's intent under Federal Rule of Evidence 404(b).”  U.S. v. Flocker, supra.

Flocker’s first argument involved the standard the U.S. Supreme Court articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).  Rule 702 of the Federal Rules of Evidence, which  incorporates the Daubert standard, allows a “witness who is qualified as an expert by knowledge, skill, experience, training, or education” to testify as an expert “in the form of an opinion” if

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.

Unfortunately, I do not have Flocker’s initial brief on appeal . . . all I have is the brief he filed in reply to the government’s appellate brief.  Reply Brief of Appellant James Thomas Flocker, U.S. v. Flocker, 2012 WL 1667873.  That brief, however, gives some idea of the position his counsel took in the original brief.  It begins by asserting that when

Partika . . . conducted the forensic examination of the computers in this case he had very little experience. While the forensic examination occurred in November of 2004, Partika did not become certified as a forensic computer investigator until 2007. . . . . [C]onducting a forensic analysis of the computer a full three years before acquiring the necessary certification stretches the bounds of reasonableness.

It is irrelevant that Partika obtained the certification prior to testifying at the trial, the relevant time frame in this case was October and November of 2004, when he seized the computers and conducted the actual forensic analysis of the computers. It was in 2004 when he committed the errors at issue, the fact he subsequently became certified does not help the government.

Reply Brief of Appellant, supra.

Flocker’s Reply Brief also says the government responded to his original argument by

[a]sk[ing] this Court to overlook the errors by the expert because `the inadvertent start up was a potential consequence of a new, but accepted, method of acquiring data from the defendant's computer.’ . . . This misstates the evidence. The inadvertent start up did not result from a new, but accepted method of acquiring data. Partika explained the error this way:

`In reviewing my notes, and I vaguely remember what happened, net acquisition back then was kind of a new tool, and it's not too popular for one reason, because if you don't set up the startup properties just right, you can inadvertently start the computer in the suspect's C Drive.’

(emphasis added).

The government's own expert testified that the methodology he used was `not too popular,’ this seems to suggest it was not a new and accepted methodology as argued by the government. It appears from the evidence the methodology was not too popular because of just the type of errors that occurred in this case. It also appears that while this method was used in 2004 and created the error in 2004, Partika's testimony was current in 2008, the methodology remained unpopular as of 2008.

Reply Brief of Appellant, supra (emphases in the original).

In its brief, the government noted that the judge held a hearing to determine whether Partika should be allowed to testify as an expert and pointed out that at the hearing

Partika testified about his training and experience since 2003, including basic computer courses in college; a two-week course in basic and intermediate computer forensics taught by the computer forensic software maker Encase; a two-week course in advanced computer forensics taught by the California Police Officer Standards and Training; one week courses in Internet Investigations, and Specialized Tools (focused on the computer forensic software program Encase); a two-week course in Computer Evidence Recovery and Analysis; and a course in PC Forensics and Specialized Tools, taken in 2004 and again in 2007 as a refresher.  

Partika also testified about more generalized instruction related to the investigation of online sex crimes, such as the Basic Crimes Against Children class, and the Online Undercover Investigations class, both taught by the FBI. Partika testified about a conference relating to computer forensic examinations that he had attended, as well . . . things he had done outside of a professional context related to that interest. All this training led to Partika becoming a certified forensic examiner in 2007.

Brief of Appellee, supra.  The brief notes that this was one of Partika’s “first `four or five’ computer forensic investigations” and that the judge ultimately found his qualified to testify as an expert.  Brief of Appellee, supra.  In so doing, the judge noted that an expert

need not `have been an expert witness in another case or have been previously qualified,’ only that he be sufficiently qualified by reason of his knowledge, skill, experience, training, or expertise.’ The court found Partika's `training and experience’ sufficient. . . .

The court also addressed issues of reliability with [his] analysis. In finding his analysis to have been reliable, and therefore his expert testimony admissible, the court found that the United States had established the reliability of Partika's analysis by a preponderance of evidence.

Brief of Appellee, supra. 

The Court of Appeals rather quickly dismissed Flocker’s arguments:

The district court did not abuse its discretion in admitting the testimony of the government computer expert. The court held an evidentiary hearing on the expert's qualifications and methodology, and reasonably concluded the requirements of Daubert and Federal Rule of Evidence 702 were satisfied.

Although Partika was not officially California certified at the time he conducted his examination of Flocker's computer, he had taken and successfully completed several advanced courses in forensic examination of data and conducted the computer examination applying generally accepted methods and software. . . . Flocker's counsel did highlight some minor deviations from protocol, but those go to the weight of the testimony and not its threshold admissibility. 

U.S. v. Flocker, supra. (In other words, the court found that the testimony was admissible under Rule 702, which then meant that, like all other testimony, it was up to the jury to decide how much “weight,” i.e., how much significance, they accorded to it.  For more on that general issue, check out this jury instruction.)

Flocker’s other argument was that the judge erred in admitting the “four prurient stories” noted above under Rule 404(b) of the Federal Rules of Evidence.  U.S. v. Flocker, supra.  As Wikipedia notes, Rule 404(a)(1) of the Federal Rules of Evidence states that evidence “of a person’s character . . . is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.”  (Wikipedia explains why such evidence is excluded.)  Rule 404(b)(2), however, says that character evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” 

Flocker claimed the district court judge erred in admitting the stories because “the jury could have improperly used the stories to inform its decision of whether the photos of young boys urinating -- naked or partially clothed -- were lascivious exhibitions of genitalia, instead of looking only at the four corners of the photographs.”  U.S. v. Flocker, supra.  He argued that because they were not about the boys shown in the photos and “did not make reference to” whether those photos “were lascivious”, the stories “were offered for the sole purpose of demonstrating that [he] had these types of stories on his computer, therefore, he must have personally viewed the images as lascivious.”  Reply Brief of Appellant, supra.

The Court of Appeals did not agree.  It noted, first, that the district court judge “did not admit the stories for that purpose”, i.e., for the purpose Flocker claimed.  U.S. v. Flocker, supra.  The appellate court explained that the government was required to prove that

Flocker knew (at the time he emailed them) that the photos were lascivious and sexually exploitative of children. These stories -- involving urination between adults and children in a sexual context -- were admitted as relevant to Flocker's knowledge and intent. . . . 

The court partially redacted the stories and gave a specific limiting instruction (both at the time of introduction and again at close of evidence) that they were to be used only for this limited purpose, and a presumption arises that the jury followed those instructions.

U.S. v. Flocker, supra. 

It therefore rejected Flocker’s argument that the admission of the stories was error.  U.S. v. Flocker, supra.  For this and other reasons, the Court of Appeals affirmed his conviction and sentence. U.S. v. Flocker, supra. 

As to his sentence, neither the opinion nor the briefs I can access specify what it was, but the press release you can find here says that in 2010 he was sentenced to seven years in prison “to be followed by 10 years of supervised release for trading child pornography.”   

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