QuickBooks, Falsifying Business Records and Unanimity

After a jury convicted Karen S. White of one count of theft in the second degree in violation of Alaska Statutes § 11.46.130(a)(1) and one count of falsifying business records in violation of Alaska Statutes §11.46.630(a)(1) and the judge sentenced her “to four years with two years suspended on each count, to be served concurrently (two years to serve)”, she appealed.  Opening Brief of Appellant, State v. White, 2012 WL 4512793 (Alaska Court of Appeals).

This, according to the Court of Appeals’ opinion in the case, is how it arose: 

Yak-tat Kwaan is a village corporation located in Yakutat, and established under the Alaska Native Claims Settlement Act. One of [its] business activities is rental housing.

In May or June of 2007, White began working as the corporation's bookkeeper. . . . [She] processed the rental payments received by the corporation. Some renters would pay by check or money order, but others would pay in cash. 

When the rent was received in cash, White was supposed to photocopy the money, then (because there was no local bank in Yakutat) she would take the accumulated cash to the post office every week or two. At the post office, White would convert the cash to a money order, and then the money order would be mailed to the corporation's bank in Juneau.

These cash transactions were recorded in two different forms. White's computer at work had a copy of the bookkeeping software QuickBooks, and White would make entries in QuickBooks to document the incoming money, to post the corresponding credits to the renters' accounts, and to show the matching bank deposits. In addition, each time White sent a money order to the corporation's bank, she was supposed to fill out an internal deposit slip for the corporation's records, itemizing the money she had mailed to the bank.

In December 2007 or January 2008 . . ., the corporation's president and CEO, Shari Jensen, hired the Carter Financial Group to review [its] account books. . . for an annual audit. [A]n accountant for the Carter Group, Kathleen Maidlow, began . . . reviewing the corporation's books. 

White was aware of what Maidlow was doing, because Maidlow sat by White while she was working, and Maidlow would ask White questions when she needed information about the corporation's business practices or records. . . .

Maidlow discovered twelve or thirteen instances during the preceding year . . . where renters paid cash to the corporation, but the cash was never deposited in the bank. The unaccounted-for cash totaled more than $3300. 

In February or early March of 2008, Maidlow reported her findings to Jensen -- that $3356 in cash receipts could not be accounted for, and was not represented in the deposits to the corporation's bank account. . . .

Jensen attempted to conduct her own reconciliation of the books. . . . [She] realized the amounts of money deposited to the corporation's bank account did not match the company's internal deposit slips and QuickBooks records, which were supposed to itemize these deposits. On March 4, 2008, Jensen confronted White about the problems with the books. White told Jensen that she did not know anything about these problems.

The next day . . . White tendered her resignation as the corporation's bookkeeper, effective one month later (April 15, 2008). She told Jensen that the audit process was too stressful for her, and that she wanted to spend more time with her family.

State v. White, 2013 WL 2295429 (Alaska Court of Appeals 2013).

On March 12, 2008, Maidlow reported to Jensen that “there were several instances where cash receipts had been entered into the QuickBooks software as having been received and deposited, but later the records of these deposits had been deleted from the QuickBooks account.”  State v. White, supra. The opinion explains that QuickBooks

maintains an audit trail, and this feature . . . allowed Maidlow to see the exact date and time when the deposit entries for these cash receipts were deleted. For instance, Maidlow found a deposit entry for an $800 cash payment was entered into QuickBooks on September 4, 2007, but . . . was deleted one month later, on . . . October 9, 2007. 

Similarly, a deposit entry for a $400 cash payment was entered into QuickBooks on February 6, 2008, but . . . was deleted two weeks later, on . . . February 23, 2008. These two cash receipts . . . were part of the $3300 in cash that never reached the corporation's bank account.

State v. White, supra.

Jensen called the police and put White on administrative leave, after which White “quit her job.”  State v. White, supra. Jensen also told White she was meeting with the corporation’s board of directors to inform them of what had happened, but said she would “ask the board to treat White leniently” if she would “write a letter admitting to her embezzlement and detailing her specific acts of misconduct.”  State v. White, supra.

White faxed a letter to Jensen, confessing to embezzling an $800 cash payment in September 2007 and a later $400 cash payment. In her letter, White [said] `[she] had every intention of putting the money back, but [the situation] got out of hand before [she] had the chance to [do that].’ 

She begged Jensen to handle the matter internally, and allow her to repay the money. White's letter did not mention altering or deleting any business records.

At the Yak-tat Kwaan board meeting on March 17, 2008, Jensen did what she promised: she asked the board to handle the matter internally, and to let White pay the money back. The board, however, decided to pursue the police investigation.

State v. White, supra.

On appeal, White argued (among other things), that “she was deprived of a unanimous jury verdict on the count charging her with falsifying business records”.  State v. White, supra. Alaska Rule of Criminal Procedure 31(a) requires that a jury’s verdict “shall be unanimous.” (As Wikipedia notes, the issue of jury unanimity in state prosecutions is a matter of state law; the 6th Amendment requires unanimity in federal cases.)

White’s argument arose from the evidence the prosecution introduced to prove she falsified business records:

[T]he State relied on evidence pertaining to two different deletions from the corporation's QuickBooks computer records.

Specifically, the State presented evidence that someone made a deposit entry in QuickBooks for an $800 cash rent payment on September 4, 2007, but this deposit entry was deleted one month later, on the afternoon of October 9, 2007. 

The State also presented evidence that someone made a deposit entry in QuickBooks for a $400 cash rent payment on February 6, 2008, but this deposit entry was deleted two weeks later, on Saturday afternoon, February 23, 2008.

State v. White, supra.

As noted above,

[b]ased on these two occurrences, the State charged White with a single count of falsifying business records as defined in § 11.46.630(a) -- i.e., altering, erasing, removing, or destroying a true entry in the business records of an enterprise with the intent to defraud. This single count covered the fourteen months between January 2007 and February 2008 (inclusive). 

Thus, it encompassed both the October 2007 deletion of the QuickBooks entry pertaining to the $800 cash payment and the February 2008 deletion of the QuickBooks entry pertaining to the $400 cash payment.

State v. White, supra.

At White’s trial,

the prosecutor argued that both of these deletions were performed by White, and that she acted with intent to defraud on both occasions. The prosecutor then asked the jury to convict White of falsifying business records, based on these two deletions. The jury returned a general verdict finding White guilty of this offense, without specifying which occurrence (or occurrences) the jurors found to be proved.

State v. White, supra.  White’s attorney did not “object to the jury's receiving a general verdict form, or to the manner in which the prosecutor argued this count to the jury (lumping together the two QuickBooks deletions).”  State v. White, supra. 

On appeal, White argued that it “was plain error for the judge not to instruct the jurors that they had to reach unanimous agreement with respect to each of the two deletions.”  State v. White, supra.  And the prosecution conceded that

when a defendant is charged with falsifying business records, the jury must not convict the defendant unless they can reach unanimous agreement that the defendant committed a particular act of falsification. 

And the State further concedes that, because White's jury was not asked to reach unanimous agreement on either the October 2007 record deletion or the February 2008 record deletion, a legitimate question arises as to whether White was denied her right to a unanimous jury decision.

State v. White, supra. 

Notwithstanding that concession, the prosecution argued, on appeal, that

this problem does not rise to the level of plain error for two reasons. First, the State argues that White's attorney had a tactical reason for not raising this issue during the superior court proceedings (either before or during White's trial). And second, the State argues that any potential error was harmless beyond a reasonable doubt, given White's unified defense to the records falsification charge.

State v. White, supra. 

As to the first issue, the court noted that White

testified at trial that she had never deleted any QuickBooks entries relating to cash payments received by the corporation. In his summation to the jury, White's attorney did not dispute that QuickBooks entries pertaining to the $800 and $400 cash payments had been deleted; but he argued that the State had failed to prove beyond a reasonable doubt that White was the one who deleted these entries.

State v. White, supra. 

The Court of Appeals found that it did not need to

reach the question of whether White's attorney had a tactical reason for failing to bring this problem to the trial judge's attention, because we agree with the State that, given the way White's case was litigated, the error was harmless beyond a reasonable doubt.

State v. White, supra. 

It explained that the prosecution’s case was

essentially based on the assertion that White repeatedly stole money from the corporation by using the same tactic: taking a cash rental payment and embezzling it for her own use, rather than converting the cash to a money order and mailing it to the bank. To avoid detection of these thefts, White later deleted the QuickBooks entries that were supposed to reflect the deposits of this cash into the corporation's bank account.

State v. White, supra.  And the court pointed out that, at trial,

White's attorney did not dispute that the relevant QuickBooks entries had been deleted. Rather, he argued that, given the corporation's lax business and accounting procedures, it was impossible to tell who had deleted those entries.

State v. White, supra. 

The Court of Appeals therefore found that

[g]iven the evidence presented at White's trial, and given the way White's case was litigated, we are convinced beyond a reasonable doubt that even if White's jury had been asked to reach unanimity with respect to each of the two QuickBooks deletions, the jury's verdict would have been the same.  

We therefore conclude that the lack of a unanimity instruction was harmless error.

State v. White, supra. 

For this and other reasons, the court affirmed White’s conviction and sentence. State v. White, supra.  You can find a short news story about the case here.

Frost Wire, Child Pornography and Abandonment

After Airman Christopher B. Reed was “convicted at a general court-martial comprised of officer members” of “knowingly and wrongfully attempting to receive visual depictions of minors engaging in sexually explicit conduct” and “knowingly and wrongfully possessing visual depictions of minors engaging in sexually explicit conduct” in violations of Articles 80 and 134 of the Uniform Code of Military Justice, which are codified as 10 U.S. Code §§ 880 & 934, he appealed.  U.S. v. Reed, 2013 WL 2443152 (U.S. Air Force Court of Criminal Appeals 2013).  He was sentenced to “a bad-conduct discharge, 12 months of confinement, and reduction to E–1.”  U.S. v. Reed, supra.

Reed raised six issues on appeal, only one of which concerns us: whether the “military judge [who presided over the court-martial] erred by providing incomplete instructions on the . . .  defense of voluntary abandonment”.  U.S. v. Reed, supra.

According to the opinion, when the case began Reed was sharing an

on-base residence with Senior Airman (SrA) WTH, one of his co-workers. During the summer of 2008, [Reed] purchased a new computer which SrA WTH was free to use. [Reed] used a peer-to-peer file sharing program called Frost Wire to download music and videos onto this computer. This software allows a user to connect to other users' computers and share their files by typing a search term into the program, receiving a list of responsive files and then selecting files for downloading to his own computer.

On 2 December 2008, SrA WTH logged on to [Reed’s] computer to download a music file. When he was unable to find that file using his typical program, he opened [Reed’s]  Frost Wire program to see if [it] had the music. While the program was executing his search for the music, SrA WTH clicked through [Reed’s] Frost Wire library and folders and saw about seven files in the `incomplete file’ folder whose titles led him to believe they contained child pornography (most had the word `pedo’ or `pedophile’ in the file name, as well as sexual terms and ages of children).

He opened one of the files entitled `7 yo b’” and it briefly showed a young girl in bed with covers pulled up to her chin while an adult male walked towards her. Because he was suspicious it was child pornography, SrA WTH exited the video file and went to his work station to confront [Reed] about his discovery. When he could not find [Reed], SrA WTH told his supervisor who referred him to the Air Force Office of Special Investigations (OSI). Later that evening, he was interviewed by agents from the OSI.

U.S. v. Reed, supra.

After they interviewed SrA WTH, the OSA agents called Reed in for an interview.  U.S. v. Reed, supra. He “denied ever viewing child pornography on his computer and consented to a search of his residence.” U.S. v. Reed, supra.  After the OSI agents seized his computer and a computer disc, they interviewed Reed again,

sternly telling him he needed to be honest and provide them with any information he had failed to tell them earlier. Looking `defeated’ and with his eyes watering, [Reed] admitted he had viewed child pornography on his computer and had been looking at both adult and child pornography since he was 13 years old (he was 22 at the time). . . . He told the agents he looked at child pornography about `a dozen or so’ times. He [also said] that, at various times, he searched for and viewed adult pornography on a near daily basis.

[Reed] said he would periodically have urges to look at child pornography and would use Frost Wire to download it. To do this, [he] said he would type specific search words into the program on his computer. After he downloaded the files onto his computer, he would view them over an unspecified period, admitting to the agents that he saw images of 3- to 17-year-old girls engaging in sexual acts with older males, including sodomy and sexual intercourse.

After he was done viewing them, he would delete the files from his computer. He claimed the last time he viewed child pornography on his computer was in July or August 2008. In his second written statement, he admitted knowing it was wrong, that he could not help himself at times, and that he needed some help with this problem.

U.S. v. Reed, supra.

Reed’s computer was examined at the Defense Computer Forensics Laboratory (DEFL) and, after

[r]unning a search using digital fingerprints (hash values) of `known victims’ found in NCMEC's database, a forensic analyst found two `hits.’ One was a thumbnail (small) picture file in three different locations within the unallocated space of the computer, meaning it was probably removed, by either the operating system or the computer's user, through a deletion and subsequent emptying of the recycle bin.

The DCFL analyst was unable to determine how or when the picture file ended up on the computer or where it originated. The image was blurry but showed a young girl wearing underwear and reclining on a bed near the bottom half of another young child wearing underwear.

The other `hit’ was a brief (a fraction of a second) part of a video file that could not be viewed using any program found on [Reed’s] computer. The analyst used another program to create a screen shot of that video excerpt and it showed a young, naked girl holding the erect penis of an adult male. For the partial video file, its location in the `incomplete file’ for the Frost Wire program indicated it was an incomplete download from Frost Wire that was placed on the computer on 21 November 2008.

The DCFL analyst also conducted key word searches of [Reed’s] computer's hard drive, using terms commonly associated with child pornography. This search found seven files whose names were indicative of child pornography. All the files were found in the Frost Wire `incomplete’ folder.

The words in the file names were consistent with the types of terms [Reed] admitted using during his Frost Wire searches. One of the suggestive file names was `Education–Daphne (9 yo) Demon[s]trating Child Pedo Outercourse.’ This file contained the partial video file of the naked girl. Through questioning by the defense [at the court martial], the expert also testified about a General Accounting Office study that found that 56% of images having file names consistent with child pornography in fact contained only adult pornography.

U.S. v. Reed, supra.

At the court martial, Reed also called a defense forensic expert to testify about his analysis of

[Reed’s] computer. This expert looked at all the photographic images found within the `allocated space’ of the computer (meaning an area a computer user could see). . . . [H]e found 386 photographs and 35 video recordings that contained some form of nudity but, in his opinion, the people in each image were obviously adult.

Like the Government expert, the defense expert was unable to open the partial video file using any programs loaded on [Reed’s] computer and thus it was not one of the 35 videos he initially categorized, nor was the video seen by SrA WTH as neither the child nor adult male was nude. The expert also searched for information on which search terms [Reed] used to find pornography on Frost Wire, but he was unable to find any record of those searches.

The defense expert demonstrated for the [court martial] panel how a Frost Wire user could type innocuous terms into the program and receive a list of file names that are indicative of child pornography. Noting that Frost Wire does not automatically cancel the downloading of a file, the defense expert demonstrated how the computer user could cancel the downloading of a file through several methods and how the partial download would remain in the `incomplete’ folder until the user deleted it.

He also testified that the forensic evidence on [Reed’s] computer indicated the downloading of the files in the `incomplete’ folder had been cancelled.

U.S. v. Reed, supra.

When he was cross-examined, the defense expert agreed that a file would not show

up in the `incomplete’ folder unless the user affirmatively took an action to select and download it (or a group of files) by clicking on the file name(s) or right clicking on the file name(s) and selecting `download.’ If the file does not completely download but remains in the `incomplete’ folder, the user can view the part of the file that did actually download. He also agreed that the presence of certain terms in the file names (i.e.pedo, underage) may indicate that the file is child pornography.

U.S. v. Reed, supra.  As to the charge against Reed, the prosecution argued that he “attempted to receive child pornography by searching Frost Wire using terms indicative of child pornography and then selecting for download 6–7 files whose titles contained terms that were suggestive of child pornography.” U.S. v. Reed, supra. 

As noted above, at the court martial Reed’s lawyer argued that Reed “voluntarily abandoned any effort he had undertaken to receive the child pornography by cancelling the downloads of the image.” U.S. v. Reed, supra.  On appeal, Reed argued that the military judge “erred by providing incomplete instructions on this affirmative defense and by refusing to provide curative instructions when the trial counsel misstated the law on that defense.” U.S. v. Reed, supra.  If you check out Rules 913 and 920 in the Manual for Courts-Martial United States (2012), you will see that the judge gives preliminary instructions to the panel before the court martial actually begins, and then provides “instructions on findings” before the members deliberate on a verdict.

As Wikipedia explains, in U.S. criminal law, including U.S. military law, abandonment is a defense to charges that the defendant attempted to commit a crime.  There are basically two rationales for recognizing it as a defense:  One is that, unlike a completed crime, like murder, attempt is an incomplete crime; here, the first charge against Reed was that he attempted to receive images of child pornography, which, of course, means that he did not actually receive such images.  If he did not receive them because he changed his mind and abandoned the effort that can be a defense.  Obviously, no such defense is available when the crime has been completed, e.g., when John Doe kills Robert Roe.  The other rational for recognizing attempt as a defense is that we want to encourage people who have started down the path of committing a crime to stop, to abandon that effort. For more on defenses to attempts, check out this site.

In this opinion, the court explained that, in military law, voluntary abandonment is an

affirmative defense to a completed attempt offense. U.S. v. Schoof, 37 M.J. 96 (U.S. Court of Appeals for the Armed Forces 1993). . . .  `It is a defense to an attempt offense that the person voluntarily and completely abandoned the intended crime, solely because of the person's own sense that it was wrong, prior to the completion of the crime.’ Manual for Courts–Martial, United States, Part IV, ¶ 4.c.(4) (2008 ed.).

The defense is raised when the accused abandons his effort to commit a crime `under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.’ U.S. v. Schoof, supra. The existence of abandonment as a defense `necessarily implies that a punishable attempt precedes it. United States v. Collier, 36 M.J. 501, 510 (U.S. Air Force Court of Military Review 1992).

`A person who has performed an act which is beyond the stage of preparation and within the zone of attempt may nevertheless avoid liability for the attempt by voluntarily abandoning the criminal effort.’ U.S. v. Byrd, 24 M.J.286 (U.S. Court of Military Appeals 1987).   Given that it is an affirmative defense, the burden rests on the prosecution, once it is put into controversy, to rebut the defense beyond a reasonable doubt. . . .

U.S. v. Reed, supra. (The Air Force Court of Military Review was the predecessor to the Air force Court of Criminal Appeals).

The appellate court then noted that the judge who presides over a court martial is responsible “for ensuring the jury is properly instructed on the elements of the offense as well as potential defenses," so his duty is "to provide an accurate, complete, and intelligible statement of the law.” U.S. v. Reed, supra.  Here, the judge instructed members of the court martial that “even if” they found each of the

elements for attempted receipt of child pornography beyond a reasonable doubt, they could not find [Reed] guilty of that offense if `prior to the completion of receipt of’ these images, [he] `abandoned his effort to commit that offense under circumstances manifesting a complete and voluntary renunciation of [his] criminal purpose.’

U.S. v. Reed, supra. 

The judge did not include an instruction he was supposed to give, explaining to the members of the court martial that the prosecution had the burden of proving Reed guilty beyond a reasonable doubt, which meant that unless they were “`satisfied beyond a reasonable doubt that [Reed] did not completely and voluntarily abandon [his] criminal purpose, you may not find [him] guilty of attempted [receipt of visual depictions of minors engaging in sexually explicit conduct].” U.S. v. Reed, supra.  This was a problem because Reed’s lawyer argued that his “intentional cancellation" of the downloads meant he abandoned his attempt and should not be convicted.  U.S. v. Reed, supra. 

At that point, the prosecutor “argued that any voluntary abandonment by [Reed] had to occur before he clicked on the suggestive file names, as that act completed the crime of `attempting to receive’ the material”, which was an incorrect statement of the law.  U.S. v. Reed, supra.  As part of his appeal, Reed submitted statements from five of the seven members of the court martial, all of whom said they believed this statement correctly described the applicable law.  U.S. v. Reed, supra. 

The Court of Appeals concluded that it could not find that this error did not “contribute” to Reed’s conviction because the prosecutor’s argument “could easily have led the panel to incorrectly believe that voluntary abandonment was not applicable once the crime of attempted receipt had been completed.”  U.S. v. Reed, supra.  It explained that the military judge’s original instructions on the law provided the members of the court martial

with the correct state of the law -- that they could find all elements of attempt were met beyond a reasonable doubt and yet still acquit [Reed] of that offense if they found he voluntarily abandoned his criminal purpose before he received the visual depictions -- but the military judge's overruling of the defense objection and refusal to belatedly provide a curative or clarifying instruction further confused the situation, as revealed by the members' [statements].

U.S. v. Reed, supra.  The court found this problem “was confounded by the failure to inform” the members of the court martial that the prosecution had the burden to rebut the defense of abandonment once Reed introduced evidence to support it. U.S. v. Reed, supra. 

There is a reasonable possibility that this led the members to incorrectly believe they did not need to apply the same high level of proof to voluntary abandonment as . . . the elements of the offense. Neither findings argument referenced the burden of proof for the defense of voluntary abandonment and, in fact, the defense counsel's argument implied that the defense carried the burden (`We have shown you that these were cancelled downloads’).

U.S. v. Reed, supra. 

It therefore “set aside” the attempted receipt charge.  U.S. v. Reed, supra.  That left Reed convicted only of the other charge, the possession charge. U.S. v. Reed, supra.  It explained that setting aside the attempt charge reduced Reed’s maximum possible sentence “from 20 years to 10 years confinement”, but in “reassessing” the sentence imposed on him, the court found that the court martial panel “would have imposed the same sentence even if [Reed] was not convicted of the attempt offense.” U.S. v. Reed, supra.  It found the sentence was “appropriate” given Reed’s “character, the nature and seriousness of the offenses, and the entire record”.  U.S. v. Reed, supra. 

So Reed won . . . but did not gain much.

The Subpoenas, the Motion to Quash and the Source Code

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Angel Ocasio is apparently a defendant in a federal criminal prosecution pending in the U.S. District Court for the Western District of Texas: U.S. v. Ocasio, 2013 WL 2458617 (2013). This opinion concerns two subpoenas he had issued in an effort to obtain certain information Ocasio apparently believes will support an argument he is making in a motion to suppress he filed in that case.  U.S. v. Ocasio, supra.

The issue in this case is whether the district court judge should enforce or quash the subpoenas. As this site notes, when a court quashes a subpoena, it basically cancels it, so the person served with the subpoena does not have to comply.  If you would like to read more about that process, check out this prior post.

This opinion begins by explaining that

[o]n May 3, 2013, Angel Ocasio served two subpoenas duces tecum on agents of TLO, LLC. . . . These subpoenas, issued pursuant to Federal Rule of Criminal Procedure 17,  demand that agents of TLO, LLC -- a third-party software company -- produce the computer source code and documentation relating to a piece of software created by TLO and identified as the Child Protection System or CPS. . . .

Ocasio seeks the source code and documentation to support his argument, made in a motion to suppress, that the government's use of the CPS software violated the 4th Amendment of the United States Constitution. . . .

U.S. v. Ocasio, supra.

A couple of weeks later,

[o]n May 21, 2013, the government learned that these two subpoenas had been served. . . . [O]n May 23, 2013, the government filed a motion to quash these subpoenas on both procedural and substantive grounds. . . . In its May 28, 2013, Order, the Court denied the government's motion to quash on both grounds. . . .

Then, on May 30, 2013, Ocasio filed his Motion to Compel. . . . [which] seeks an order from the Court requiring TLO to produce the source code and documentation identified in the two subpoenas. . . . That same day, . . . TLO filed its Motion to Quash the two subpoenas. . . . On June 3, 2013, Ocasio filed his Response to TLO's Motion to Quash. . . .

On June 4, 2013, TLO filed its Response to Ocasio's Motion to Compel. . . . Finally, that same day, June 4, 2013, TLO filed a supplement to its Motion to Quash. . . . The Supplement primarily contains additional affidavits that support the Motion to Quash. . . .

U.S. v. Ocasio, supra.

In its motion to quash, TLO

argues that the subpoenas must be quashed for a number of reasons. First, TLO argues that the subpoenas are defective because of procedural issues. . . . Second, TLO argues that Ocasio's request for the CPS source code and documentation is beyond the scope of Rule 17. . . .   Third, TLO argues that the information sought is protected by the law enforcement privilege. . . .

U.S. v. Ocasio, supra.

The judge’s opinion then explains that in his motion to compel, Ocasio

argues that TLO must produce the requested source code and documentation because service of the subpoenas was proper. . . . Additionally, in his Response to the Motion to Quash, Ocasio argues that his request for the CPS source code and documentation is not beyond the scope of Rule 17 and that the CPS source code and documentation are not protected by any claim of privilege. . . .

U.S. v. Ocasio, supra.

The judge began her analysis of these arguments by noting that she would address both the Motion to Quash and the Motion to Compel together because they “relate to the same subpoenas and raise the same three issues outlined above”. U.S. v. Ocasio, supra. She also explained that Federal Rule of Criminal Procedure 17(c)(1) governs motions for subpoenas duces tecum and states that a subpoena can order the

witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

U.S. v. Ocasio, supra.  She also pointed out that Federal Rule of Criminal Procedure 17(c)(2) states that “`[o]n motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive.’” U.S. v. Ocasio, supra. 

As to the first issue – procedural defects – TLO argued that the subpoenas were

flawed because they were served by mail without consent, served on improper agents, lack appropriate date and time indications for delivery, and incorrectly order the CPS source code and documentation to be delivered to defense counsel. . . .

Ocasio argues that the subpoenas are not technically defective, and, even if they are defective, the subpoenas provided TLO with notice of the requested materials for over a month, yet TLO was unwilling `to answer the subpoenas in any fashion.’ . . .

U.S. v. Ocasio, supra. 

The judge found that she did not need to address TLO’s procedural defect arguments because Ocasio had addressed these concerns by serving,

on June 3, 2013, a new subpoena on TLO's custodian of records. . . . This Second Subpoena seeks the same information sought in the previous two subpoenas. . . . Indeed, in its Response to Ocasio's Motion to Compel, TLO states that it was `properly served yesterday, on June 3, 2013 with a subpoena dated May 29, 2013.’ . . .

Moreover, the Second Subpoena appears to correct the alleged defects in the previous subpoenas. Specifically, the Second Subpoena is addressed to TLO's custodian of records and directs that the CPS source code and documentation be delivered to this Court without delay. . . . Therefore, because the Second Subpoena has been properly served and seeks the same materials but adequately addresses TLO's procedural concerns, the Court does not decide whether the initial subpoenas were defective.

U.S. v. Ocasio, supra. 

The judge then took up TLO’s argument that “the CPS source code and documentation are beyond the scope of Rule 17 because, according to TLO, Ocasio is `merely fishing for any possible support that might be beneficial to him.’” U.S. v. Ocasio, supra. She explained that to support this argument, TLO had submitted an affidavit

of William Wiltse, an employee of TLO. . . . In his First Affidavit, Wiltse explains . . .that CPS is a complex software system that is useful to law enforcement agencies. . . . Seemingly to provide additional support to this claim, TLO has provided a second affidavit from Wiltse with its Supplement. . . .

In his Second Affidavit, Wiltse states that `[a]t more than 4.7 million lines of code, it would be difficult for TLO to compile and virtually impossible for receiving parties to review prior to trial. This line count does not include source code for the proprietary database storage systems designed by TLO.’ . . .  Wiltse also suggests that if information about the CPS system were disclosed, it would harm ongoing investigations across the world. . . .

U.S. v. Ocasio, supra. Ocasio, on the other hand, argued that “the information sought is relevant to his Motion to Suppress and that TLO has not demonstrated that his request is either unreasonable or oppressive.”  U.S. v. Ocasio, supra.

The judge explained that a subpoena “is only within the scope of Rule 17 if the party seeking the subpoena can show that the materials sought are relevant, that they are admissible, and that they are requested with adequate specificity.” U.S. v. Ocasio, supra. She also noted that “[i]f the moving party [e.g., Ocasio] cannot reasonably specify the information contained or believed to be contained in the documents sought, but merely hopes that something useful will turn up, this is a sure sign that the subpoena is being misused.”  U.S. v. Ocasio, supra. As she noted earlier, Rule 17(c)(2) lets the court quash a subpoena if compliance would be unreasonable or oppressive. U.S. v. Ocasio, supra.

The judge then explained that she had addressed “the bulk of this argument” in her prior ruling and found that Ocasio’s request was “well within the scope of Rule 17.” U.S. v. Ocasio, supra.  She noted that in her May 28, 2013 order she found it was

`plain that the information [Ocasio seeks] is relevant, admissible, requested with adequate specificity, and sought in good faith.’ . . . [T]he Court noted that Ocasio's request met the Nixon relevancy requirement because `the CPS source code and documentation are relevant to resolving [Ocasio's] pending Motion to Suppress and determining whether or not the government's use of the CPS software constituted a 4th Amendment violation.’ . . .  Additionally, the Court found Ocasio's request met the other requirements of Nixon and therefore was within the scope of Rule 17.

U.S. v. Ocasio, supra. (In U.S. v. Nixon, 418 U.S. 683 (1974), the Supreme Court held that to have a subpoena duces tecum enforced, the person issuing it must show the court that the documents are relevant as evidence, they are not otherwise available, the party cannot prepare adequately without them and the request is made in good faith and is not a “fishing expediton.”)

The judge also pointed out that TLO had not cited any cases that “suggest a different outcome is appropriate”, nor was she “persuaded by TLO's claim that Ocasio is `merely fishing’ for evidence because this contention is not accompanied by any explanation, and is in contradiction to the Court's previous findings that the information sought is relevant and specific.” U.S. v. Ocasio, supra. “Ocasio has sought the CPS software and documentation for a specific reason and purpose and the size of the software does not change this.”  U.S. v. Ocasio, supra.

She also found that his request was neither unreasonable nor oppressive:

TLO never directly raises this concern. See Mot. to Quash 5–7 (claiming Ocasio's request is a fishing expedition but not discussing the unreasonableness or oppressiveness of compliance). This argument is only hinted at in Wiltse's Second Affidavit to extent he suggests that the CPS spans many lines of code, will take a significant amount of time to compile, and harm investigations. . . .

 But TLO never explains the significance of the number of lines of source code in the software and the Court can think of none. . . . Wiltse also states that `it would be difficult for TLO to compile’ the CPS source code in time for trial. . . . TLO fails to explain how this process is difficult, what makes compliance difficult, or why this is a valid consideration for the Court. . . .

Further, Wiltse's statement that the CPS source code would be `impossible’ to review before trial is immaterial. . . .This is because it is not proper for TLO or Wiltse to presuppose the results of Ocasio's inspection of the CPS source code and documentation. Finally, any risk of disclosure and harm to ongoing investigations can be mitigated with a protective order. . . .

U.S. v. Ocasio, supra. 

Finally, TLO argued that the “CPS source code and documentation should not be disclosed because they are protected by the law enforcement privilege”. U.S. v. Ocasio, supra. As I noted in an earlier post, in Roviaro v. U.S., 353 U.S. 53 (1957), the Supreme Court recognized the existence of a privilege that “prevents the ‘disclosure of law enforcement techniques and procedures, [preserves] the confidentiality of sources, [protects] witnesses . . . and otherwise [prevents] interference with an investigation.’” In re U.S. Department of Homeland Security, 459 F.3d 565 (U.S. Court of Appeals for the 5^th Circuit 2006).  For more on the privilege, check out the prior post.

Here, the judge explained, again, that she had already

addressed the bulk of this privilege argument in its May 28, 2013, Order. . . . [T]he Court found the government could not assert the law enforcement privilege as to the CPS source code and documentation because neither were government documents. . . . The Court also found that, even if the source code and documentation were government documents, the privilege would not be applicable in this instance based on the facts of the case. . . .

U.S. v. Ocasio, supra. 

She noted that TLO had not submitted any “case law or evidence” that would suggest her ruling on that issue was incorrect, nor had it provided any “reasons that affect the Court's prior conclusion that the facts of this case do not warrant the application of the privilege in this instance.” U.S. v. Ocasio, supra. As to TLO’s concerns about privacy, she reiterated that “any privacy concerns can be mitigated by the entry of a protective order.”  U.S. v. Ocasio, supra. 

The judge therefore denied TLO’s motion to quash and granted Ocasio’s motion to compel, ordering that “the items sought by Ocasio must be delivered to the Court on or before 10:00 a.m. Mountain Daylight Time on June 10, 2013, for delivery to defense counsel.”  U.S. v. Ocasio, supra. She also ordered that a protective order “shall issue forthwith.”  U.S. v. Ocasio, supra.