“Spoliation”

As Wikipedia explains, spoliation is the “intentional or negligent withholding, hiding, altering, or destroying of evidence relevant to a legal proceeding.” As Wikipedia notes, spoliation can give rise to a “spoliation inference,” i.e., a “negative evidentiary inference that a finder of fact can draw from a party's destruction of a document or thing that is relevant to an ongoing or reasonably foreseeable civil or criminal proceeding”.

And as Wikipedia also notes, the theory behind the spoliation inference is that

when a party destroys evidence, it may be reasonable to infer that the party had `consciousness of guilt’ or other motivation to avoid the evidence. Therefore, the factfinder [the jury or a judge in a bench trial] may conclude that the evidence would have been unfavorable to the spoliator.

This post is about a federal criminal case in which the defendant argued that the trial judge erred in denying his request that the jury be instructed on spoliation of evidence.

The case is U.S. v. Lanzon, 639 F.3d 1293 (U.S. Court of Appeals for the 11^th Circuit 2011), and this is how it arose:

On September 8, 2005, Detective Clifton of the Miami–Dade Police Department's Sexual Crimes Bureau signed online using the undercover persona `Tom.’ Clifton created an AOL profile for `Tom’ that described him as a male living with his girlfriend and his girlfriend's 14–year–old daughter. `Tom’ entered an internet chat room entitled “Florida Couples.” Lanzon . . . was a participant in this chat room. . . .

At the beginning of their text conversation, Lanzon asked, `she play too?’ Clifton replied, `yes.’ . . . Lanzon asked Clifton to describe the 14–year–old daughter's appearance, and indicated his interest in meeting her. Clifton asked what Lanzon wanted to do with the 14–year–old, and Lanzon responded, `[I] love oral,` `hot passionate sex,’ and `totally satisfying a female.’ . . .

Later that day, Lanzon contacted Clifton. . .. Lanzon typed that he had `been thinking’ [`Tom’s] girlfriend's daughter, and reaffirmed his interest in meeting her.

U.S. v. Lanzon, supra.

The two had “an hour and 20 minute text conversation” about the fictitious girlfriend’s fictitious daughter and what “Lanzon wanted the girl to wear and what sexual techniques would `make her happy.’” U.S. v. Lanzon, supra. In a third text conversation, they agreed that Lanzon, Clifton and the girl would meet at a bookstore in Aventura, Florida, have coffee and proceed to a nearby hotel. U.S. v. Lanzon, supra.

Clifton saved these online conversations by copying the instant message communications and pasting them into a Microsoft Word document. He then saved the Word document to a floppy disc, where the conversations could be printed in hard copy form as transcripts. Clifton did not save any of the instant message conversations in their original format to his computer's hard drive, but he compared the actual instant message `chat screen’” to the word processing document he had created to ensure that they exactly matched and that he had accurately recorded the conversations in their entirety.

U.S. v. Lanzon, supra.

“On September 9, 2005, Lanzon drove to the designated bookstore and parked” near it. U.S. v. Lanzon, supra. “When he entered the bookstore, he approached the two undercover officers posing as `Tom’ and the 14–year–old girl” and was “promptly arrested.” U.S. v. Lanzon, supra. Lanzon was later charged with violating 18 U.S. Code § 2422(b), which makes it a crime to knowingly persuade, induce, entice or coerce any person under 18 years of age “to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or” attempt to do so. U.S. v. Lanzon, supra.

Prior to trial, Lanzon moved to exclude the instant message transcripts, claiming

Clifton deliberately destroyed the original instant message conversations. In the alternative, Lanzon requested a jury instruction on spoliation of evidence.

At the evidentiary hearing [on the motion], Lanzon called a forensic expert who examined Clifton's computer. The expert testified that he recovered only a remnant of the Word document containing the pasted versions of the original conversations.

The expert explained that, because Clifton did not save the document directly to his computer’s hard drive, there was no metadata for the document. Without metadata, it could not be determined whether Clifton altered the original instant message conversations.

Clifton testified that he preserved the conversation in the standard method he learned at the police department. He chose to save the transcripts on floppy disc, rather than the hard drive, to conserve computer memory.

U.S. v. Lanzon, supra.

The district court judge denied Lanzon’s motion to exclude and “reserved a ruling on the spoliation instruction” until the trial. U.S. v. Lanzon, supra. At trial, after the parties had rested but

[p]rior to closing arguments, Lanzon filed a request for jury instructions on spoliation. First, he asked the court to instruct the jury that, under 18 U.S. Code §§ 1512 and 15219, it was a crime for Clifton to destroy or alter evidence.

Second, he requested an instruction on spoliation, which would have permitted the jury to draw an adverse inference from Clifton's actions. The district court refused these instructions because Lanzon failed to present evidence of bad faith on the part of Clifton.

U.S. v. Lanzon, supra.

Lanzon was convicted and appealed, arguing, among other things, that the district court judge “erroneously denied his request for a jury instruction on spoliation and destruction of evidence.” U.S. v. Lanzon, supra. He argued that “the totality of the circumstances in this case establishes the minimal amount of `bad faith’ evidence necessary to obtain a jury instruction on spoliation.” Appellant’s Brief, U.S. v. Lanzon, 2010 WL 5146078.

In making this argument, Lanzon relied on a district court decision in which the judge found that under the cases decided by the 11^th Circuit Court of Appeals,

`bad faith may be found on circumstantial evidence where all of the following hallmarks are present: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense or a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.’

Appellant’s Brief, U.S. v. Lanzon, supra (quoting Calizto v. Watson Bowman Acme Corp., 2009 U.S. Dist. LEXIS 11658 (U.S. District Court for the Southern District of Florida 2009).

Lanzon then argued that all of the “hallmarks” the district court judge identified

were present in this case. The IMs and background chats were obviously `material.’ Indeed, the substance and meaning of the IMs were the most critical evidence in the case. Clifton obviously, and concededly, knew the IMs would be used in any prosecution. Yet, he purportedly `copied’ them in a circuitous manner that destroyed all their metadata, both the original electronic data and the secondary data that would have been created if Clifton had `saved’ the initial Word document to his hard drive. . . . Finally, Clifton did not credibly explain his conduct. Indeed, the only explanations he gave for his conduct-- that he merely `used a method that was taught’ to him and that the IMs and chats would consume too much space on his hard drive -- were patently pretextual.

Appellant’s Brief, U.S. v. Lanzon, supra.

The Court of Appeals began its analysis of Lanzon’s argument by noting that a “criminal defendant has the right to a jury instruction on a proposed theory of defense, provided it is a valid defense and there is some evidence at trial to support the instruction.” U.S. v. Lanzon, supra. It also noted that a trial courts refusal to give a defense instruction is reversible error if “`(1) the requested instruction was a correct statement of the law, (2) its subject matter was not substantially covered by other instructions, and (3) its subject matter dealt with an issue in the trial court that was so important that failure to give it seriously impaired the defendant's ability to defend himself.’” U.S. v. Lanzon, supra (quoting U.S. v. Martinelli, 454 F.3d 1300 (11^th Cir. 2006)).

The Court of Appeals concluded, though, that the trial court did not abuse its discretion

in denying Lanzon's proposed jury instructions. As an initial matter, we have not recognized the spoliation doctrine in the criminal context, but we have recognized the potential availability of spoliation sanctions in a civil case where a party fails to preserve evidence. . . . . Spoliation sanctions are `intended to prevent unfair prejudice to litigants and to insure the integrity of the discovery process.’ [Flury v. Daimler Chrysler Corp.,427 F.3d 939 (11<sup>th</sup> Cir. 2005).] An `adverse inference instruction’ is proper in civil cases where a party has failed to preserve evidence and there is a showing of bad faith in doing so. . . .

Assuming arguendo that the doctrine applies in this context, the court did not err in finding no bad faith in Clifton's method of evidence preservation. There is no evidence that portions of the conversations were destroyed or altered, and Lanzon offered no evidence to refute Detective Clifton's testimony that he saved the conversations in their entirety.

U.S. v. Lanzon, supra. For this and other reasons, the 11^th Circuit affirmed Lanzon’s conviction. U.S. v. Lanzon, supra.

Alibi, Exculpatory Evidence and the Motion in Limine

This post examines a recent opinion from the U.S. Court of Appeals for the 8^th Circuit that addresses an issue I, for one, hadn’t run across before. The case is U.S. v. Reed, __ F.3d __, 2011 WL 2341078 (2011) and this, very briefly, is how it arose:

Based on information that [William] Reed, a student at South Dakota State University, was using a chat and file-sharing program to download and share child pornography, federal agents conducted a warrant search of Reed's residence on September 19, 2007.

The agents seized Reed's laptop computer, a USB storage device, and three hard drives. A forensic examination of the hard drives uncovered `thousands’ of chat transcripts, many of which involved sexually explicit topics and the transfer of images depicting child pornography.

U.S. v. Reed, supra.

On January 8, 2008, a federal grand jury indicted Reed on “nine counts of receipt and distribution of child pornography.” Appellee’s Brief, U.S. v. Reed, 2010 Westlaw 4621944. On July 20, 2009, the prosecution filed a

demand for alibi. . . . After Reed filed a notice of alibi nearly three months later on October 15, 2009, the Government sought and obtained a superseding indictment on November 3, 2009, that kept three of the charges from the original indictment and added a count of possession of child pornography. . .

.

Appellee’s Brief, U.S. v. Reed, supra. (Rule 12.1 of the Federal Rules of Criminal Procedure, which you can find here, allows the government to file a written request for notice of “any intended alibi defense” and requires the defendant to respond in writing by identifying the nature of the alibi defense and identifying the alibi witness(es) on whom he or she intends to rely. According to the Advisory Committee that drafted the rule, it is intended “to prevent unfair surprise to the prosecution.”)

Why did the government obtain a superseding indictment that contained fewer, and slightly different, charges? According to the 8^th Circuit’s opinion, Reed responded to the demand for alibi “with evidence tending to show that various roommates had access to his computer and that he was out of town when some of the nine chats took place”. U.S. v. Reed, supra. And according to a brief filed on his behalf, the “defense strategy was to show that another person was using his computer at times when child pornography was downloaded to it”. Reply Brief of Appellant, U.S. v. Reed, 2010 WL 4852494. At trial, Reed testified that

during the time he owned his computer, he had ten different roommates, implying that all could have accessed his computer. . . . Reed testified that `anyone that came into his residence could have’ used his computer. He even testified that he recalled a friend calling him on the telephone and stating that he was on Reed's computer when Reed was not present. Other than a password to log on to the computer, Reed used no other access precautions.

U.S. v. Reed, supra.

Reed filed a notice of second alibi on January 26, 2010, a week before trial. Without offering the identity of any witnesses, this second notice merely stated that Reed was not in South Dakota at the time of the charged offenses. In response, the Government filed a motion in limine to exclude `any reference to the fact that 9 counts of receipt and distribution of child pornography were charged in an Indictment issued January 8, 2008, and that 6 of those counts are not present in a Superseding Indictment issued November 3, 2009.’

Appellee’s Brief, U.S. v. Reed, supra.

As Wikipedia notes, a motion in limine “asks the court to decide that certain evidence may or may not be presented to the jury at the trial.” Wikipedia explains that such motions usually address “issues which would be prejudicial for the jury to hear in open court, even if the other side makes a timely objection which is sustained, and the judge instructs the jury to disregard the evidence.”

According to the opinion, the government filed the motion in limine “[o]n the eve of trial”, which prompted Reed’s defense attorney to object that

cross-examining the government's witnesses about the six dropped counts would support Reed's defense that other persons with access to his computer had downloaded and shared all the child pornography. The prosecutor responded that it was `probably fair’ to allow Reed to offer other chats to show `it [was] not him,’ but that evidence as to the government's charging decisions was not `fair game.’ The district court granted the motion in limine but stated that Reed was not prevented `from attempting to show that others at various times used his computer.’

U.S. v. Reed, supra.

Reed was convicted and appealed, arguing that “the district court abused its discretion by allowing the government to suppress exculpatory evidence in violation of his due process rights under Brady v. Maryland, 373 U.S. 83 (1963).” U.S. v. Reed, supra. As Wikipedia explains, the Brady Court held that the prosecution’s “withholding exculpatory evidence violates due process `where the evidence is material either to guilt or to punishment.’” Exculpatory evidence is evidence that tends to negate the defendant’s guilt of the charges against him or her. And as Wikipedia notes, exculpatory evidence is “material” if “there is a reasonable probability that” the defendant’s “conviction or sentence would have been different if” the evidence had been disclosed.

On appeal, Reed argued that the district court judge’s abuse of discretion allowed the

Government to circumvent Brady's intent. If the Government is correct in its arguments, it would be possible for any future prosecutor to withhold potentially exculpatory evidence, not through the discovery process, but through its power to issue Superseding Indictments. Without denying the Government's ability to drop charges for which it does not believe it can obtain a conviction, the Court must still allow potentially exculpatory evidence to be admissible at trial.

Reply Brief of Appellant, U.S. v. Reed, supra.

The prosecution argued, in response, that the district court was

well within its discretion to preclude the Government's charging decisions from coming before the jury. Preventing the introduction of charging decisions as evidence avoided a mini-trial on issues not relevant to the charges in the superseding indictment. Additionally, the district court . . . avoided the possibility of misleading the jury into thinking [Reed] was innocent of the charges not included in the superseding indictment.

Appellee’s Brief, U.S. v. Reed, supra.

Not surprisingly, the Court of Appeals agreed with the prosecution. It began by rejecting Reed’s argument that the district court judge’s ruling “essentially withdrew evidence, . . . `which resulted in a situation identical to one where the Government suppressed the evidence in the first instance.’” U.S. v. Reed, supra. The Court of Appeals found that

[t]his contention is without merit. Reed concedes that the government permitted his attorney to view all seized `images and their associated dates through the discovery process.’ Brady addressed only the government's duty to provide access to evidence favorable to an accused upon request. It does not require a prosecutor to retain or pursue criminal charges to which the defendant has an alibi so that the defendant can refute those charges at trial.

U.S. v. Reed, supra.

The court also noted that several of the U.S. circuits “have unanimously upheld the exclusion of evidence of prior charging decisions on the ground that many factors unrelated to guilt may influence those decisions and their admission therefore risks misleading the jury and confusing the issues.” U.S. v. Reed, supra. The Court of Appeals seems to have agreed with the prosecution, which pointed out that because “[p]rosecutors maintain a great deal of discretion in making charging decisions”, those decisions “are not issues for a jury to decide.” Appellee’s Brief, U.S. v. Reed, supra.

It seems to me that the real basis of the district court judge’s ruling on the motion in limine and the Court of Appeals’ decision to uphold that ruling is that the decision is inherently ambiguous. The prosecutors presumably dropped those six charges either because (i) they thought it would be too difficult to prove Reed was responsible for the child pornography that was received/distributed on the dates at issue in those counts or (ii) they thought he probably wasn’t responsible for the child pornography that was received and/or distributed on those dates.

As I understand it, Reed wanted to use the withdrawal of those six counts to support the inference that (i) he wasn’t guilty of the conduct at issue in those counts and (ii) or of the conduct at issue in the counts in the superseding indictment. As I see it, neither of the alternatives set out above in the paragraph above can support either inference.

The fact that it would be difficult to prove someone’s guilt beyond a reasonable doubt cannot, IMHO, reasonably support the inference that the person is not guilty. Like the prosecutors, I don’t see this circumstance as having evidentiary relevance either to guilt or innocence. And the (assumed for the purposes of analysis) fact that the prosecutors thought Reed probably wasn’t responsible for the child pornography that provided the basis of the withdrawn counts cannot support the inference that he was, in fact, not guilty of that conduct or that he was not guilty of the entirely different conduct that provided the factual basis for the counts in the superseding indictment.

A prosecutor’s opinion about a case is not evidence that can be admitted at trial; if it were, then I assume prosecutors could submit sworn affidavits attesting to their strong opinions as to a defendant’s guilt and ask to have the affidavits submitted to the jury as evidence for their consideration.

“Motion . . . to Copy Servers and Hard Drives”

This post examines a very short opinion a Michigan federal district court judge issued earlier this month in U.S. v. Demiro, 2011 WL 2313005 (U.S. District Court for the Eastern District of Michigan 2011). The prosecution arises from the government’s allegations that Dante Demiro

operated a Ponzi scheme through his company, MuniVest. MuniVest acted as the corporate identity for [Demiro’s] alleged criminal activities. Under MuniVest, [he] claimed to be an `investment advisor.’

While investigating [Demiro] for suspected bank and wire fraud violations in connection with MuniVest, on September 16, 2010, the FBI executed a search warrant at Munivest's location in Southfield, Michigan. Among the items seized were two computer servers, two external hard drives, and a computer tower (the `Computer Equipment’).

During debriefings with the FBI and defense counsel, [Demiro] informed the FBI that he purchased the Computer Equipment in order to build MuniVest, and that these items were purchased with fraud proceeds (i.e., money intended by his clients to be used to purchase certificates of deposit).

U.S. v. Demiro, supra.

If you’re interested, you can read more about the case and find a photo of Demiro here. And you can find the criminal complaint – which outlines Demiro’s alleged misconduct in more detail -- here.

As a press release from the office of the U.S. Attorney for the Eastern District of Michigan reported, on April 19, 2011 Demiro “pled guilty . . to five counts of bank and wire fraud”, stipulating that “he abused a position of trust in his fiduciary capacity as an investment advisor.” The charges were contained in an information – a formal charging document that issued after the criminal complaint. In addition to charging Demiro with bank and wire fraud, the information also “sought forfeiture of 27 different pieces of computer equipment, including the Computer Equipment” noted above. U.S. v. Demiro, supra.

As Wikipedia notes, “[a]sset forfeiture is confiscation, by the State, of assets which are either (a) the alleged proceeds of crime or (b) the alleged instrumentalities of crime”. As Wikipedia also notes, asset forfeiture can take either of two forms: civil or criminal. The Demiro case involves criminal forfeiture, which means the asset forfeiture “occurs as part of a sentence following a conviction.” You can read more about both types of forfeiture here.

At some point after Demiro pled guilty (at least, that’s when I’m assuming it happened), he sought permission to

make a copy of certain electronic data stored on the Computer Equipment. Specifically, [Demiro] requested three types of electronic data: (1) corporate and personal data, including records requested by the bankruptcy court and needed by [him] for tax filing; (2) personal photographs and music; and (3) corporate and personal intellectual property. The Government declined to provide [him with] unfettered access to the Computer Equipment.

The Government also declined to provide copies of any files that were `corporate and personal intellectual property.’ The Government, however, did propose that if [Demiro] identified the files requested, as well as the locations of these files on the Computer Equipment, then the FBI forensic examiners would make copies of those files for [him].

U.S. v. Demiro, supra.

Demiro “declined the Government’s offer” and filed a motion under Rule 41(g) of the Federal Rules of Criminal Procedure. Rule 41(g) states, in pertinent part, that a “person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” As I’ve explained in earlier posts, the Rule 41(g) procedure is used to obtain the return of property (i) that was seized unlawfully and therefore presumably can’t be used against a defendant in court), (ii) that belongs to someone who has not been, and won’t be, charged with a crime or (iii) that belongs to someone who was charged with and convicted of a crime and is either serving his/her sentence or has finished serving the sentence. In the last two alternatives, the property is no longer needed as evidence, so the original owner can argue that he/she is entitled to get it back.

The usual dynamic is that the person who is (or claims to be) the rightful owner of the property files a motion for its return and the court decides whether or not the motion should be granted. Obviously, such a motion won’t be granted if the property at issue is contraband, e.g., child pornography or illegal drugs. It can, however, be granted if the property is not contraband and, as I noted in an earlier post, there seems to be no good reason for the government to hold onto it any longer. Traditionally, then, the Rule 41(g) dynamic has been a zero-sum process: the property is either returned to the original owner or remains in the government’s custody. There is no middle ground.

That wasn’t the case under the scenario that at least potentially arose from Demiro’s Rule 41(g) motion. He wanted to copy the three types of data he specified in his motion, which meant that if the court granted his motion both Demiro and the government would have the data at issue. I’m not sure that qualifies as “returning” the data. If someone who had pled guilty to a crime and served their sentence filed a motion for the “return” of data stored in computers the government had seized from their home, say, I don’t think the government’s copying the data and giving the person the copies would constitute “returning” it. I could see the person in this scenario arguing that “returning” property implicitly assumes the zero-sum dynamic I noted above.

The Demiro case, of course, doesn’t involve that scenario. He’s the one who’s asking to have the data copied and the copies given to him. So the copying-as-“returning” issue didn’t arise here. I suspect it will, at some point.

The government opposed Demiro’s Rule 41(g) motion and, for some reason, he didn’t file a reply to the government’s response before the time allowed for doing so elapsed. U.S. v. Demiro, supra. So in ruling on the issue, the court seems to have relied on Demiro’s initial motion and on the government’s response in opposition.

The prosecution argued that Demiro should not be allowed to copy the data because he had not “shown whether he is “aggrieved” under Rule 41, or whether the files were used to defraud the victims in this matter.” U.S. v. Demiro, supra. The judge found, first of all, that Demiro had not shown that he was “aggrieved” as required by Rule 41 because the government had offered to provide him “with copies of the files needed for tax and court purposes, and personal photos (i.e., files falling into the first and second categories enumerated, supra ), if [he] specifically identifies the files and their location.” U.S. v. Demiro, supra.

The judge also found that to the extent Demiro claimed he was aggrieved because he

is deprived of files that satisfy the third category (corporate and personal intellectual property), he has failed to show he is entitled to lawful possession of any of the electronic data stored on the Computer Equipment that falls into anyone of the three categories. . . . [Demiro] pled guilty to the Information that contained provisions seeking asset forfeiture of the Computer Equipment. The Information specifically delineates the Computer Equipment at issue in . . . the forfeiture count. [Demiro] also entered his guilty plea subject to a Rule 11 plea agreement, which also states that the Computer Equipment is subject to forfeiture. Further, with respect to [his] personal photographs and music, it is unclear whether such music files were obtained legitimately such that [Demiro] may lawfully possess them.

U.S. v. Demiro, supra.

Finally, the district court judge noted that Demiro

admitted during interviews with the FBI that the Computer Equipment was used to assist in defrauding the victims in this matter. While [he] fails to clearly enumerate what is `intellectual property’ or its value, [Demiro’s] contention that it has value suggests that it should be made part of the asset forfeiture case, not returned to him. Thus, [Demiro] fails to demonstrate that the electronic data stored on the Computer Equipment is no longer needed by the Government.

U.S. v. Demiro, supra.

The judge therefore denied Demiro’s Rule 41(g) motion. U.S. v. Demiro, supra.

I’m a little confused by some of the judge’s comments. For example, in the last sentence in the paragraph quoted immediately above, the judge says Demiro loses because he’s failed to show that the government no longer needs the data stored on the equipment. Doesn’t that implicitly assume that by giving Demiro a copy of the data the government is somehow deprived of it? . . . which would be true if he were given the equipment containing the only copy of the data but shouldn’t be true if he’s given a copy and the government retains the original version of the data.

It seems to me Demiro’s motion also raises another issue, one that is addressed implicitly, if at all, in this opinion. How does/should a court reconcile Rule 41(g) with the government’s pursuit of criminal forfeiture when the property at issue is intangible, and can therefore be copied? In other words, would letting Demiro have a copy of the data at issue in this case somehow defeat the government’s seeking forfeiture of various property, including this data? If the purpose of forfeiture is to deprive the defendant of specific property (e.g., a computer, a house, a car), then isn’t allowing a defendant to copy data necessarily inconsistent with forfeiture?