Wednesday, June 29, 2016

The Bank Director, the Vice-President and the Disbursement of Bank Funds

This post examines an opinion from the U.S. Court of Appeals for the 3rd Circuit:  U.S. v. Bernick, 2016 WL 3141389 (2016).  The court begins the opinion by explaining that
Michael Bernick was convicted of nine counts of bank embezzlement and sentenced to 144 months' imprisonment. He now claims the District Court erred by refusing to hold a hearing on his selective prosecution claim and by applying five sentencing enhancements
U.S. v. Bernick, supra.  This post will not deal with Bernick’s argument concerning his sentencing process; instead, it focuses on his first argument, i.e., selective prosecution. You can read about the federal sentencing process – including enhancements – in Wikipedia’s entry on the U.S. Federal Sentencing Guidelines. You can find the Guidelines here
The Court of Appeals, as courts usually do, begins its opinion by explaining how, and why, the prosecution arose and by outlining the proceedings below.  As it noted,
Metropolitan Savings Bank (the Bank) was a small bank located in Pittsburgh. It consisted of one branch with space for two tellers, had approximately $1 million in capital, and was insured by the Federal Deposit Insurance Corporation (FDIC) for up to $100,000 per depositor. To manage the Bank's loan operations, its Board of Directors met each month to determine which loan applications to approve. On January 14, 2004, the Bank welcomed a new board member to its ranks, Michael Bernick. Throughout his tenure on the Board, Bernick served in multiple positions, including Treasurer.

At some point around his election to the Board, Bernick began a romantic relationship with Donna Shebetich—the Bank's manager, loan officer, and eventual Board Vice-President. Shebetich oversaw the Bank's day-to-day operations and helped disburse loans and complete the appropriate paperwork. About this time, Bernick also formed Keystone Residential Properties, LLC to facilitate his real estate business.

Starting in January 2005, Shebetich began disbursing Bank funds to Bernick, Keystone, and Bernick's creditors. Over the course of the next 14 months, Bernick was the beneficiary of ten disbursements totaling $402,162.95. None of these disbursements had an accompanying promissory note or was approved by the Board, and only two were entered into the Bank's computer system. With few exceptions, Bernick made no repayments. Bernick also was linked to certain undocumented disbursements given to other individuals totaling more than a million dollars.

Despite knowing of these undocumented disbursements, Bernick never disclosed them to the Bank's Board.

In early 2007, soon after the FDIC learned the Bank was insolvent, the Bank shut its doors, resulting in a loss of approximately $9.9 million, which was absorbed by the FDIC and twenty-four underinsured depositors. During its investigation of the Bank's closing, the FDIC discovered 56 undocumented disbursements accounting for nearly $2.5 million—over 200% of the Bank's capital. In an attempt to repair the damage caused by the Bank's failure, the FDIC held meetings with those who received the disbursements and asked them to sign proper loan documents.

In the course of these meetings, the FDIC interviewed Bernick. When asked if he had ever taken a loan from the Bank, Bernick failed to mention his undocumented disbursements. Only after Bernick was confronted with evidence of his disbursements did he admit to obtaining them. Finally, Bernick refused to sign agreements to repay the money he had received.
U.S. v. Bernick, supra.  If you are interested, you can read more about the facts, and court proceedings, in the case in the news stories you can find here, here and here.
The opinion goes on to explain that
[i]n 2014, Bernick was indicted on ten counts of bank embezzlement under 18 U.S. Code § 656. Soon thereafter, he filed a motion to dismiss claiming selective prosecution. Bernick neither requested a hearing nor objected to the lack of a hearing after the District Court denied his motion to dismiss. The case proceeded to trial and Bernick was found guilty on nine of the ten counts, resulting in a finding that he had embezzled $348,062.95 from the Bank.
U.S. v. Bernick, supra.   You can read more about the § 656 offense in §§ 803 and 804 of the U.S. Department of Justice’s Criminal Resource Manual, which you can find here. If you find that explanation murky, you can read about the federal sentencing process in this Wikipedia entry.
The opinion also explains that, at Bernick’s sentencing hearing,
the District Court calculated Bernick's offense level as 37, which included five sentencing enhancements: (1) 20 levels for causing a loss between $7 and $20 million; (2) two levels for committing a crime involving ten or more victims; (3) four levels for jeopardizing the safety of a financial institution; (4) two levels for abusing a position of trust; and (5) two levels for obstruction of justice. Under the United States Sentencing Guidelines (USSG), Bernick's offense level put his advisory sentencing range at 210–262 months' imprisonment. The Court granted Bernick a downward variance and imposed a sentence of 144 months' imprisonment for each count to run concurrently, five years' supervised release for each count to run concurrently, and restitution in the amount of $9,934,159.41.
U.S. v. Bernick, supra.  As is, perhaps, obvious, when sentence increments run concurrently, that reduces the total period of time the defendant has to spend in prison.
The Court of Appeals went on to note that Bernick
makes two arguments on appeal: (1) it was reversible error for the District Court to deny his motion to dismiss for selective prosecution without a hearing; and (2) the Court erred in applying the five sentencing enhancements noted above.
U.S. v. Bernick, supra.  
The court began its analysis of Bernick’s arguments on appeal with his selective prosecution argument. U.S. v. Bernick, supra.  It began by explaining that
[b]ecause Bernick neither requested a hearing nor objected when the Court denied his claim without one, we review his argument that a hearing was necessary on his selective prosecution claim for plain error. Federal Rules of Criminal Procedure Rule 51; United States v. Tai, 750 F.3d 309, 313–14 (3d Cir. 2014).
U.S. v. Bernick, supra.  
The Court of Appeals went on to explain that
[t]o warrant a hearing, Bernick needed to show some credible evidence indicating he was selectively prosecuted. United States v. Torquato, 602 F.2d 564, 569–70 (3d Cir. 1979); see also United States v. Hedaithy, 392 F.3d 580, 607 (3d Cir. 2004) (discussing the related standard for granting discovery requests under United States v. Armstrong, 517 U.S. 456, 465 (1996)).
 Bernick failed to meet this standard in two ways: (1) he did not show that someone similarly situated—a Director who received multiple undocumented disbursements and refused to sign promissory notes when confronted by the FDIC—was not prosecuted; and (2) he did not offer evidence that he was prosecuted on the basis of some unjustifiable ground, admitting that the reason he was prosecuted was `unknown to him.’ App. 34–35; see United States v. Schoolcraft, 879 F.2d 64, 68 (3d Cir. 1989). 
Accordingly, we conclude the District Court committed no error, much less plain error, in denying Bernick's motion to dismiss without a hearing.
U.S. v. Bernick, supra.  
Next, the court took up Bernick’s second argument, i.e., that the trial court judge “erred in applying the five sentencing enhancements noted above.”  U.S. v. Bernick, supra.   It began by explaining that
[a]s for Bernick's sentence, his first and most important argument is that the District Court erred when it calculated a loss of approximately $9.9 million under [U.S. Sentencing Guidelines (“USSG”)] § 2B1.1(b)(1), which resulted in an increase of 20 levels to his base offense level. According to Bernick, he caused a loss of only $348,062.95—the value of the nine disbursements he was found guilty of embezzling.

Bernick's argument is unpersuasive because it ignores the fact that he can be held responsible for the over $9 million in losses sustained by the Bank as long as he knew or `should have known[ ] [such a loss] was a potential result of the offense.’ See USSG § 2B1.1 cmt. 3(A)(iv). As the District Court found, Bernick was a Director and at one time the Treasurer of the Bank; he took nine off-books disbursements totaling $348,062.95—over 30% of the Bank's capital; he made almost no payments on these disbursements; he was aware of similar disbursements made to others; and he did not inform the Board of any of the disbursements. See App. 630–31, 698. On these facts, it was foreseeable that taking such a large proportion of the Bank's capital without telling the Board would lead the Bank to fail, causing a loss of over $9 million. The District Court did not commit clear error by finding as much. See United States v. Fountain, 792 F.3d 310, 318 (3d Cir. 2015).
U.S. v. Bernick, supra.  
The court then took up Bernick’s arguments with regard to the next two sentencing enhancements applied by the District Court Judge who sentenced him:
As Bernick acknowledges, his challenges to the next two sentencing enhancements are closely tied to the finding that he caused a loss of approximately $9.9 million.

Specifically, he objects to his two-level enhancement for committing a crime involving ten or more victims, and his four-level enhancement for jeopardizing the safety of a financial institution. With regard to the first argument, we find no error because the loss of $9.9 million was suffered by the FDIC and twenty-four individual depositors. See USSG § 2B1.1 cmt. 1 (defining `victim’ as `any person who sustained any part of the actual loss determined under [the Guidelines]’).

And by taking the undocumented disbursements and causing the Bank to fail, Bernick jeopardized the safety of the Bank by leading it to `insolven[cy]’ and rendering it unable `to refund . . . deposit[s],’ see USSG § 2B1.1(b)(16)(B)(i) & cmt. 13. There was no clear error in this regard either.
U.S. v. Bernick, supra.  
Next, the court analyzed Bernick’s fourth challenge to the enhancements, which
relates to his two-level enhancement for abusing a position of trust in a manner that “significantly facilitated the commission or concealment” of his offense. See USSG § 3B1.3. He argues that since many others who were not Directors of the Bank received undocumented disbursements, it could not be the case that his directorship played a significant role in his receipt or concealment of his disbursements. 

The District Court disagreed with this analysis, finding that Bernick had `unfettered access’ to disbursements and the ability to evade `control mechanisms’ that were meant to prevent inappropriate loans from being granted. App. 634. We see no clear error here—by virtue of Bernick's position he easily gained access to Bank funds and, perhaps more importantly, concealed the existence of his disbursements (and those of others) by not reporting them to the Board.
U.S. v. Bernick, supra.  
And, finally, Bernick objected to his
two-level enhancement for obstruction of justice for testifying that he intended to repay the disbursements. Bernick claims this testimony was truthful and akin to statements frequently made by bankrupt debtors who are unable to repay their loans. We disagree.

Bernick was hardly a typical borrower. He received disbursements outside the normal loan process, he did not sign a single promissory note, and he made almost no repayments. Despite these actions, Bernick testified that he meant to repay the Bank all along.

The jury found otherwise, determining that Bernick intended `to injure or defraud the bank,’ Valansi v. Ashcroft, 278 F.3d 203, 210 (3d Cir. 2002). Bernick's testimony as to this element of the crime cannot be reconciled with the jury's verdict. Accordingly, the District Court did not err in enhancing his sentence based on obstruction of justice. See USSG § 3C1.1 & cmt. 4(B).
U.S. v. Bernick, supra.  
The Court of Appeals ended the opinion by stating that “[f]or the forgoing reasons, we will affirm Bernick's judgement of conviction and sentence.” U.S. v. Bernick, supra.  
(If you are wondering about the photo that accompanies this post, it is, as Wikipedia explains, a photograph of Frank Andrews, who
was the police commissioner for the city of Detroit, and also a financier working as vice-president at the Detroit City Savings Bank. He embezzled over a million dollars in deposits, which he invested in copper; when the copper market slumped in 1902, the bank failed and all its depositors were ruined.) 

Monday, June 27, 2016

Cyberbullying, Sexual Information Pertaining to a Minor and the First Amendment

This post examines an opinion from the Supreme Court of North Carolina:  State of North Carolina v. Bishop, 2016 WL 3221098 (2016).  As the opinion explains, on
9 February 2012, defendant Robert Bishop was arrested and charged with one count of cyberbullying under North Carolina's cyberbullying statute, North Carolina General Statutes §14-458. Under that statute, it is `unlawful for any person to use a computer or computer network to . . . [p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor’ `[w]ith the intent to intimidate or torment a minor.’ North Carolina General Statutes §14-458.1(a)(1)(d) (2015).

On 5 February 2014, defendant was convicted on that sole charge by a jury in the Superior Court in Alamance County. On appeal, the Court of Appeals concluded that the cyberbullying statute `prohibits conduct, not speech’; that any burden on speech is `merely incidental’; and that this `incidental’ burden `is no greater than necessary’ to further the State's `substantial’ interest in protecting children from the harmful effects of bullying and harassment. State v. Bishop, __N.C. App. ___, 774 S.E.2d 337, 344-45, 349 (2015).
State of North Carolina v. Bishop, supra. 
Bishop asked the Supreme Court to review the Court of Appeals’ decision, and the court agreed. State of North Carolina v. Bishop, supra. In its opinion, the Supreme Court does not summarize the facts that led to the prosecution and the two appeals, but the Court of Appeals’ opinion does:
Dillion Price (`Dillion’) was a sophomore at Southern Alamance High School in Alamance County, North Carolina during the 2011–2012 school year. In September 2011, Dillion's classmates began posting negative comments and pictures of him on his Facebook page. Dillion received notification on his cell phone after any Facebook comment was posted about him.

Defendant, one of Dillion's classmates, posted several comments about Dillion, which included posts calling him `homophobic’ and `homosexual,’ and that he was `slamming someone on the open forum that is the internet.’ Defendant also stated `he never got the chance to slap [Dillion] down before Christmas break.’ Defendant made additional comments rife with vulgarity, discussed further in the State's evidence, below.

Late one night in December 2011, Dillion's mother found him crying, punching his pillow, beating himself in the head, and throwing things in his room. Dillion's mother confiscated his cell phone as punishment for being awake so late on a school night. After looking at his phone, Dillion's mother discovered the `derogatory comments,’ which had upset Dillion, and contacted local law enforcement. Dillion's mother brought several print-outs of the Facebook conversations to Alamance County Sheriff's Detective David Sykes. . . .

Detective Sykes began an investigation and used undercover Facebook profiles to search for posts and comments in which Dillion was mentioned. Detective Sykes testified `[w]henever [he] found anything that appeared to have been . . . cyber-bullying [he] took a screen shot of it.’

Detective Sykes compiled a list of names during his investigation. He went to Southern Alamance High School to interview the students on his list on 7 February 2012. Defendant was one of the students he interviewed. Defendant admitted he recognized some of the Facebook comments as his posts.

On 9 February 2012, Defendant was arrested and charged with one count of cyber-bullying under North Carolina General Statutes § 14–458.1(a)(1)(d). The warrant alleged Defendant `unlawfully and willfully did use a computer network to, with the intent to intimidate and torment Dillion Price, a minor, post on the Internet private, personal and sexual information pertaining to the above named minor, to wit, commenting on Facebook about his sexual orientation and his intelligence.’

Following a trial in Alamance County District Court, Defendant appealed to the superior court for a trial de novo. A jury trial was held in Alamance County Superior Court on 3 February 2014. Defendant exercised his constitutional right not to testify on his own behalf.
State of North Carolina v. Bishop, 774 S.E.2d 337 (Court of Appeals of North Carolina 2015).
The Court of Appeals’ opinion goes on to describe the evidence the prosecution introduced at Bishop’s trial:
The State introduced and published to the jury `screen shots’ of three Facebook posts in which Defendant had commented. Detective Sykes also read those posts into evidence at trial. Each screen shot is discussed in turn.

The State's Exhibit 2 consisted of a screen shot Facebook post of a text message Dillion had accidentally sent to another classmate. Over thirty comments were added by various individuals in reference to the original post. Defendant added the following comments: (1) `This is excessively homoerotic in nature. Exquisite specimen;’ (2) `Anyone who would be so defensive over Dillion can't be too intelligent;’ (3) `And you are equally pathetic for taking the internet so seriously;’ and, (4) `There isn't a fight. We're slamming someone on the open forum that is the internet.’

The State's Exhibit 3 contained another screen shot Facebook post of a text message exchanged between Dillion and a classmate. Several students commented they hated Dillion, and one asked, `Can we just kick his ass already?’ Defendant commented, `I never got to slap him down before Christmas Break,’ followed by a `sad face’ emotion icon. Another student requested for someone to `tag’ Dillion, in order for him to be notified of these posts. Defendant replied, `I'll add him.’

The State's Exhibit 4 was a third screen shot Facebook post of text messages exchanged between Dillion and a classmate. The original text message from the classmate included an altered picture of Dillion and his dog. Several students posted vulgar and derogatory comments in response, which insulted Dillion. Defendant posted comments, including: `I heard that his anus was permanently stressed from having awkwardly shaped penises in it’ and stated that Dillion's genitals were `probably a triangle.’

The jury's verdict found Defendant guilty of one count of cyber-bullying. The trial court imposed a suspended sentence of 30 days in the custody of the Alamance County Sheriff and placed Defendant on supervised probation for a period of 48 months. Defendant gave notice of appeal in open court.
State of North Carolina v. Bishop, supra (Court of Appeals).
On appeal to the state Supreme Court, Bishop argued, as he had before the Court of Appeals, that the state’s cyberbullying statute,
specifically North Carolina General Statutes § 14-458.1(a)(1)(d), is unconstitutional under the First Amendment . . . because it criminalizes protected speech based on its content, and because, in doing so, the law extends well beyond the government's asserted interest in protecting children from the harms caused by online bullying. The challenged provision makes it `unlawful for any person to use a computer or computer network’ to `[p]ost or encourage others to post on the Internet private, personal, or sexual information pertaining to a minor’ `[w]ith the intent to intimidate or torment a minor.’ North Carolina General Statutes § 14-458.1(a)(1)(d).
State of North Carolina v. Bishop, supra. 
The Supreme Court began its analysis of Bishop’s argument by explaining that
[w]e must first determine whether North Carolina General Statutes § 14-458.1(a)(1)(d) restricts protected speech or expressive conduct, or whether the statute affects only nonexpressive conduct. Answering this question determines whether the First Amendment is implicated. See, e.g.Texas v. Johnson, 491 U.S. 397 (1989) (stating that conduct acquires First Amendment protection only when it `possesses sufficient communicative elements’). Yet this inquiry is not always easy or straightforward.

On one hand, the Supreme Court of the United States has recognized that expressive conduct falls within the ambit of the First Amendment's protections—at least when that conduct is `inherently’ expressive. Rumsfeld v. Forum for Academic & Institutional Rights,Inc., 547 U.S. 47 (2006) (`Instead, we have extended First Amendment protection only to conduct that is inherently expressive[, such as flag burning]' (citing Texas v. Johnson, supra). On the other, that Court has also long held that otherwise proscribable criminal conduct does not become protected by the First Amendment simply because the conduct happens to involve the written or spoken word. See, e.g., United States v. Alvarez, 132 S. Ct. 2537 (2012) (plurality opinion) (noting that “speech integral to criminal conduct” remains a category of historically unprotected speech); accord Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (`[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed’). . . ; see also R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (`[W]ords can in some circumstances violate laws directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the Nation's defense secrets)’). . . .  Against this blurred doctrinal landscape, the line is not always bright between what is protected by the First Amendment and what is not.
State of North Carolina v. Bishop, supra. 
The court went on to explain that,
[h]ere, however, we are satisfied that North Carolina General Statutes § 14-458.1(a)(1)(d) applies to speech and not solely, or even predominantly, to nonexpressive conduct. As noted, the statute prohibits anyone, on threat of criminal punishment, from `[p]ost[ing] or encourag[ing] others to post on the Internet [any] private, personal, or sexual information pertaining to a minor’ `[w]ith the intent to intimidate or torment a minor.’ North Carolina General Statutes § 14-458.1(a)(1)(d). In contrast with the statute we upheld in Hest Techs., Inc. v. State ex rel. Perdue, 366 N.C. 289, 749 S.E.2d 429 (2012), which proscribed operating or placing into operation `an electronic machine or device' to conduct a sweepstakes, Hest Techs., Inc. v. State ex rel. Perdue, this statute outlawed posting particular subject matter, on the internet, with certain intent. The statute at issue in Hest regulated conduct, Hest Techs., Inc. v. State ex rel. Perdue; the statute here regulates protected speech.

Posting information on the Internet—whatever the subject matter—can constitute speech as surely as stapling flyers to bulletin boards or distributing pamphlets to passersby—activities long protected by the First Amendment. See, e.g.Lovell v. City of Griffin, 303 U.S. 444 (1938) (`The [First Amendment] is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest’). . . . Such communication does not lose protection merely because it involves the “act” of posting information online, for much speech requires an `act’ of some variety—whether putting ink to paper or paint to canvas, or hoisting a picket sign, or donning a message-bearing jacket. See, e.g.Cohen v. California, 403 U.S. 15 (1971) (holding that wearing a jacket with an antiwar vulgarity constituted protected speech, not merely conduct).

Nor is such communication subject to any lesser protection simply because it occurs online. As the United States Supreme Court has made clear, the protections of the First Amendment extend in full not just to the Internet, see Reno v. ACLU, 521 U.S. 844 (1997) (`[O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to [the Internet]’), but to all new media and forms of communication that progress might make available. . . .  Accordingly, we conclude that North Carolina General Statutes § 14-458.1(a)(1)(d) of North Carolina's cyberbullying statute implicates the First Amendment because that provision restricts speech and not merely conduct.
State of North Carolina v. Bishop, supra. 
The Supreme Court then took up the related issue of
whether this portion of the cyberbullying statute is content based or content neutral. This central inquiry determines the level of scrutiny we apply here. Content based speech regulations must satisfy strict scrutiny. Such restrictions `are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state  interests.' Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). . . . In contrast, content neutral measures—such as those governing only the time, manner, or place of First Amendment-protected expression—are subjected to a less demanding but still rigorous form of intermediate scrutiny. The government must prove that they are `narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ McCullen v. Coakley, 134 S. Ct. 2518 (2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781 (1989)).

Until recently, it was unclear how a court should determine whether a speech restriction is content based or content neutral. In some cases, the Supreme Court of the United States has suggested that a reviewing court should focus on the intent behind the measure; in others, it has emphasized the plain text of the statute and how it would operate in practice. . . . At times, the Court suggested both emphases within the course of a single opinion. . . .
State of North Carolina v. Bishop, supra. 
The Supeme Court’s opinion goes on to explain that,
[r]ecently, however, in Reed v. Town of Gilbert that Court clarified that several paths can lead to the conclusion that a speech restriction is content based and therefore subject to strict scrutiny. This determination can find support in the plain text of a statute, or the animating impulse behind it, or the lack of any plausible explanation besides distaste for the subject matter or message. In short, `[b]ecause strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny.’ Reed v. Town of Gilbert, supra.

Here, it is clear that the cyberbullying statute is content based, on its face and by its plain text, because the statute `defin[es] regulated speech by [its] particular subject matter.’ Reed v. Town of Gilbert, supra. The provision under which defendant was arrested and prosecuted prohibits `post[ing] or encourag[ing] others to post . . . private, personal, or sexual information pertaining to a minor.’ North Carolina General Statutes § 14-458.1(a)(1)(d).

The statute criminalizes some messages but not others, and makes it impossible to determine whether the accused has committed a crime without examining the content of his communication. The State's justification for the cyberbullying statute `cannot transform [this] facially content based law into one that is content neutral.’ Reed v. Town of Gilbert, supra, and we therefore reverse the Court of Appeals holding to the contrary.
State of North Carolina v. Bishop, supra. 
As Wikipedia explains, “the U.S. courts have established certain standards that they apply when a constitutional principle, such as the First Amendment, are implicated by government action.”           
In this case, since the Supreme Court found that the statute
creates a content based restriction on protected speech, we can uphold this portion of the cyberbullying statute only if the State can demonstrate that it satisfies strict scrutiny. To do so, the State must show that the statute serves a compelling governmental interest, and that the law is narrowly tailored to effectuate that interest. See, e.g.Reed v. Town of Gilbert, supra. 

That protecting children from online bullying is a compelling governmental interest is undisputed. While the State would normally be required specifically to “identify an ‘actual problem’ in need of solving,” Brown v. Entertainment Merchants Association, 564 U.S. 786, 799 (2011) (quoting U.S. v. Playboy Entertainment Group 529 U.S. 803 (2000)), and to `demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial”’ Fisher v. Univ. of Texas at Austin, 133S. Ct. 2411 (2013) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (plurality opinion)), here the State asserts, and defendant agrees, that the General Assembly has a compelling interest in protecting children from physical and psychological harm. We also note that the special status of minors is a subject for which the Supreme Court of the United States has shown a particular solicitude. That Court's long-standing recognition that `youth is more than a chronological fact,’ Eddings v. Oklahoma, 455 U.S. 104 (1982), has led it, on one hand, to recognize a compelling interest in the protection of minors. . . . Accordingly, in line with these consistent and converging strands of precedent, we reaffirm that the State has “a compelling interest in protecting the physical and psychological well-being of minors.’

But just as the Court has shown a particular cognizance of the vulnerabilities of minors, so too has it shown a particular wariness of allowing strict scrutiny to become `strict in theory but feeble in fact.’ Fisher v. Univ. of Texas at Austin, supra. The State must show not only that a challenged content based measure addresses the identified harm, but that the enactment provides `the least restrictive means’ of doing so. McCutcheon v. FEC, 134 S. Ct. 1434 (2014) (plurality opinion). . . .  
State of North Carolina v. Bishop, supra. 
The North Carolina Supreme Court then took up the issue in this case, explaining that
[w]ith these principles in mind, we now turn to sub-subdivision 14-458.1(a)(1)(d) of the cyberbullying statute. . . . The central question then becomes whether this language embodies the least restrictive means of advancing the State's compelling interest in protecting minors from this potential harm.

We hold that it does not. At the outset, it is apparent that the statute contains no requirement that the subject of an online posting suffer injury as a result, or even that he or she become aware of such a posting. In addition, as to both the motive of the poster and the content of the posting, the statute sweeps far beyond the State's legitimate interest in protecting the psychological health of minors. Regarding motive, the statute prohibits anyone from posting forbidden content with the intent to `intimidate or torment’ a minor. However, neither `intimidate’ nor `torment’ is defined in the statute, and the State itself contends that we should define `torment’ broadly to reference conduct intended `to annoy, pester, or harass.’ The protection of minors' mental well-being may be a compelling governmental interest, but it is hardly clear that teenagers require protection via the criminal law from online annoyance.

The description of the proscribed subject matter is similarly expansive. The statute criminalizes posting online `private, personal, or sexual information pertaining to a minor.’ . . . Again, these terms are not defined by the statute. The State has suggested that we interpret this language by defining `private’ to mean `[s]ecluded from the sight, presence, or intrusion of others,” or “[o]f or confined to the individual.’ The State would then define `personal’ as `[o]f or relating to a particular person,’ or `[c]oncerning a particular person and his or her private business, interests, or activities.’ And it would define `sexual’ as `[o]f, relating to, involving, or characteristic of sex, sexuality, the sexes, or the sex organs and their functions,’ or `[i]mplying or symbolizing erotic desires or activity.’ While all of these definitions are broad, the State's proposed definition of `personal’ as `[o]f or relating to a particular person’ is especially sweeping. Were we to adopt the State's position, it could be unlawful to post on the Internet any information `relating to a particular [minor].’ Such an interpretation would essentially criminalize posting any information about any specific minor if done with the requisite intent.
State of North Carolina v. Bishop, supra (emphasis in the original).
The court therefore held that,
while adding a mens rea requirement can sometimes limit the scope of a criminal statute, reading the motive and subject matter requirements in tandem here does not sufficiently narrow the extensive reach of the cyberbullying statute. Even under the State's proposed construction of the statutory terms, North Carolina General Statutes § 14-458.1(a)(1)(d) could criminalize behavior that a robust contemporary society must tolerate because of the First Amendment, even if we do not approve of the behavior. Civility, whose definition is constantly changing, is a laudable goal but one not readily attained or enforced through criminal laws.

In sum, however laudable the State's interest in protecting minors from the dangers of online bullying may be, North Carolina's cyberbullying statute `create[s] a criminal prohibition of alarming breadth.’ U.S. v. Stevens, 559 U.S. 460 (2010). . . . Even under the State's interpretation of North Carolina General Statutes § 14-458.1, the statute prohibits a wide range of online speech—whether on subjects of merely puerile interest or on matters of public importance—and all with no requirement that anyone suffer any actual injury. In general, `[i]t is rare that a regulation restricting speech because of its content will ever be permissible.’ Brown v. Entertainment Merchants Association, supra (quoting United States v. Playboy Entm't Grp., 529 U.S. at 818, 120 S. Ct. at 1889). Certainly, North Carolina General Statutes §14-458.1(a)(1)(d) of the cyberbullying statute is not.
State of North Carolina v. Bishop, supra. 
The Supreme Court therefore held that
North Carolina General Statutes §14-458.1(a)(1)(d) restricts speech, not merely nonexpressive conduct; that this restriction is content based; and that it is not narrowly tailored to the State's asserted interest in protecting children from the harms of online bullying. As such, the statute violates the First Amendment's guarantee of the freedom of speech. We therefore reverse the decision of the Court of Appeals finding no error in defendant's conviction for cyberbullying.

State of North Carolina v. Bishop, supra. 

Friday, June 24, 2016

The Boston University Library, Trespass and the MacBook

This post examines an opinion from the Appeals Court of Massachusetts:  Commonwealth v. Bermudez, 2016 WL 1618213 (2016). The court begins the opinion by explaining that
The defendant, Jonathan Bermudez, appeals  from his convictions of trespass, in violation of [Massachusetts General Laws] c. 266, § 120, and larceny over $250, in violation of [Massachusetts General Laws] c. 266, § 30(1). The defendant contends his convictions should be overturned for three main reasons. First, the defendant argues that the judge erred in denying his motion for a required finding of not guilty on the criminal trespass charge. Second, the defendant maintains that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge. Third, the defendant contends that the judge incorrectly instructed the jury on notice for the trespass charge. The convictions stem from the defendant taking a MacBook laptop that was unattended at Boston University's Mugar Library.
Commonwealth v. Bermudez, supra.  The court analyzed Bermudez’s arguments in the order set out above, beginning with the criminal trespass conviction.
It began that analysis by explaining that
[o]ur review of a motion for a required finding of not guilty requires us to ask `whether, viewing the evidence in a light most favorable to the Commonwealth, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."' Commonwealth v. Cohen (No. 1), 456 Mass. 94, 120 (Supreme Judicial Court of Massachusetts 2010), quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (Supreme Judicial Court of Massachusetts 1979). We only consider the `evidence introduced up to the time the Commonwealth rested its case.’ Commonwealth v. Rivera, 460 Mass. 139, 141 (Supreme Judicial Court of Massachusetts 2011). . . .
The defendant argues that the judge erred in denying his motion for a required finding of not guilty for trespass because the Commonwealth failed to prove beyond a reasonable doubt that he was given notice that he was not allowed on `any’ Boston University property. To convict the defendant of trespass, the Commonwealth must prove beyond a reasonable doubt that he `without right enter[ed] or remain[ed] in or upon [Boston University property] . . . after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon.' Massachusetts General Laws c. 266, § 120. At trial, Officer Robert McCarthy (Officer McCarthy), who had previously interacted with the defendant, answered affirmatively when asked, `[D]id you notify [the defendant] that he was not permitted to be on campus on the Boston University Campus or Boston University property?’ In the light most favorable to the Commonwealth, this testimony, if credited by the jury, was sufficient for the jury to find that direct notice was given to the defendant by a person with lawful control over the premises. See ibid. See also Commonwealth v. Molina, 454 Mass. 232, 240 (Supreme Judicial Court of Massachusetts 2009) (`Questions of credibility and weight of testimony are for the jury to decide’).
Commonwealth v. Bermudez, supra (emphasis in the original).
The Appeals Court then took up Bermudez’s larceny conviction, explaining that to
support a conviction of larceny under [Massachusetts General Laws] c. 266, § 30, the Commonwealth is required to prove the ‘unlawful taking and carrying away of the personal property of another with the specific intent to deprive the person of the property permanently.’ Commonwealth v. DiJohnson, 63 Mass. App. Ct. 855, 858 (Appeals Court of Massachusetts 2005), quoting from Commonwealth v. Donovan, 395 Mass. 20, 25–26 (Supreme Judicial Court of Massachusetts 1985). The Commonwealth must also prove, when the defendant is charged with larceny over $250, `that the value of the property in question exceed[s] $250.’ Commonwealth v. DiJohnson, supra. . . 
Commonwealth v. Bermudez, supra. For more on Massachusetts larceny law, see this site
The Appeals Court analyzed each issue, in the order outlined above.  As to intent, it noted that Bermudez
argues that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge because the Commonwealth failed to establish the requisite intent. `A person's knowledge or intent is a matter of fact, which is often not susceptible of proof by direct evidence, so resort is frequently made to proof by inference from all the facts and circumstances developed at the trial.’ Commonwealth v. Casale, 381 Mass. 167 (Supreme Judicial Court of Massachusetts 1980).
 Here, in the light most favorable to the Commonwealth, the Commonwealth introduced sufficient evidence of the defendant's intent to permanently deprive the owner of his MacBook. This included the defendant `scanning’ the library basement while he sat on the couch for over an hour before he walked over to a recently vacated desk, grabbed the unattended MacBook that was left on the desk, and put it in his backpack. See Commonwealth v. Balboni, 26 Mass. App. Ct. 750, 752 (Appeals Court of Massachusetts 1989) (`As to the element of intent, the circumstances testified to by the officer, particularly the defendant's actions and demeanor in surveying the store, . . . permitted the jury properly to infer that the defendant harbored an intent to steal the merchandise’). Further, when the defendant realized he was being followed by a group of students, he `shoved the laptop at the owner’ and took off running as soon as he exited the library. 
Commonwealth v. Bermudez, supra. 
Having found that the evidence presented at trial established the necessary intent, the court next took up the issue of intent.  It began that analysis by explaining that the
defendant argues that the judge erred in denying his motion for a required finding of not guilty on the larceny over $250 charge because the Commonwealth failed to establish the MacBook's value was over $250. In the crime of malicious destruction of property over $250, we have held that the `jury may apply its own “common sense” to [the] valuation issue.’ Commonwealth v. Muckle, 59 Mass.App.Ct. 631, 642–643 (Appeals Court of Massachusetts 2003). The jury, relying on its own common sense, in the light most favorable to the Commonwealth, could have found that the MacBook was worth more than $250 in its working condition. The judge also clearly instructed that the Commonwealth must prove beyond a reasonable doubt that the value of the MacBook was worth more than $250. See Commonwealth v. Helfant, 398 Mass. 214, 228 (Supreme Judicial Court of Massachusetts 1986) (`The judge's instructions were clear, and we must presume the jury followed them’).
Commonwealth v. Bermudez, supra. 
And in a footnote it appended after the quoted phrase “valuation issue” in the paragraph above, the court explained that the
judge's instruction to the jury provided, in relevant part: `If you determine the Commonwealth has proved beyond a reasonable doubt that the defendant is guilty of larceny, you must also go on to determine whether the laptop that was stolen was worth more than $250 or less than $250. You need to consider that question only if you find the defendant guilty so that I will know which range of sentence as the law permits in this case. So, if your verdict is guilty, you must also indicate on your verdict slip whether or not the Commonwealth has proved beyond a reasonable doubt that the property was worth more than $250. You may use your general knowledge in evaluating the value of (indiscernible) property. It is not required that you have any expert evidence of its value.’
Commonwealth v. Bermudez, supra. 
Regarding jury instructions and the role they play in a jury trial, as Wikipedia explains,
[u]nder the American judicial system, juries are often the trier of fact when they serve in a trial. In other words, it is their job to sort through disputed accounts presented in evidence. The judge decides questions of law, meaning he or she decides how the law applies to a given set of facts. The jury instructions provide something of a flow chart on what verdict jurors should deliver based on what they determine to be true. Put another way, `If you believe A (set of facts), you must find X (verdict). If you believe B (set of facts), you must find Y (verdict).’ Jury instructions can also serve an important role in guiding the jury how to consider certain evidence. Forty-eight states (Texas and West Virginia are the exceptions) have a model set of instructions, usually called `pattern jury instructions’, which provide the framework for the charge to the jury; sometimes, only names and circumstances have to be filled in for a particular case. Often they are much more complex, although certain elements frequently recur. For instance, if a criminal defendant chooses not to testify, the jury will often be instructed not to draw any negative conclusions from that decision. Many jurisdictions are now instructing jurors not to communicate about the case through social networking services like Facebook and Twitter. . . .
And that brings us to the third issue Bermudez raised on appeal, i.e., that “the judge incorrectly instructed the jury on notice for the trespass charge.” Commonwealth v. Bermudez, supra.  The opinion explains that Bermudez argued, on appeal, that
his conviction on trespass should be vacated because the jury were incorrectly instructed on notice. The portion of the jury instruction relied on by the defendant provides:

`[T]he testimony you've heard and are about to hear about the interaction which allegedly occurred on March 27, 2012 is for your consideration only to determine whether or not the Commonwealth can prove the element of notice in the trespass charge the defendant is facing here today.’

`You may not consider it for any other purpose. You may not consider it in any way in deciding whether the defendant is guilty of the crime charged in this complaint today’ (emphasis added).’
Commonwealth v. Bermudez, supra. 
The court then explains that, on appeal, Bermudez argued that
if the jury considered the evidence of the March 27, 2012, incident to determine notice, then they were actually disregarding the explicit language at the end of that instruction. We disagree. `Error in a charge is determined by reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context.’ Commonwealth v. Ortiz, 463 Mass. 402, 419 (Supreme Judicial Court of Massachusetts 2012), quoting from Commonwealth v. Petetabella, 459 Mass. 177, 184 (Supreme Judicial Court of Massachusetts 2011). See Commonwealth v. Oliveira, 445 Mass. 837, 844 (Supreme Judicial Court of Massachusetts 2006) (`Jury instructions must be construed as a whole to prevent isolated misstatements or omissions from constituting reversible error where there is little chance that the jury would have misunderstood the correct import of the charge’). The judge intrinsically corrected his earlier misstatement when he later instructed the jury: `Ladies and gentlemen, testimony about any interaction with the Boston University Police in March, if credited by you, may be considered solely on the limited issues [sic] of notice as to the defendant's right to be on the Boston University property.’ `You may not consider this evidence for any other purpose. Specifically, you may not use it to conclude that, if the defendant was on the Boston University property in March of 2013, that the other acts—that he must also have committed these charges.’
Commonwealth v. Bermudez, supra. 
The Appeals Court rather quickly disposed of this argument, explaining that
[t]he jury instruction, when viewed in context, adequately instructed the jury. See Commonwealth v. Torres, 420 Mass. 479, 484 (Supreme Judicial Court of Massachusetts 1995) (`Judges need not deliver their instructions in any particular form of words, so long as all necessary instructions are given in adequate words’). Moreover, any error in the earlier instruction was unobjected to and did not rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Comtois, 399 Mass. 668, 675–676 (Supreme Judicial Court of Massachusetts 1987).
Commonwealth v. Bermudez, supra. 
The court therefore affirmed Bermudez’s convictions. Commonwealth v. Bermudez, supra.