Updated: GPS Tracking Case (Katzin) Oral Argument Posted

The Oral Argument audio for United States v. Katzin can be found below:

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Third Circuit rules that district courts must view CP videos prior to ruling on their admissibility at trial

In United States v. Cunningham, No. 10-4021 (3rd Cir. 2012), the Third Circuit held that it is substantive error for a district court to rule on a Federal Rules of Evidence 403 motion concerning the showing of child pornography videos at trial without the court first viewing the videos to determine their probative value.

Pennsylvania police had discovered child pornography being shared on Limewire and tracked it to the defendant's home where a search revealed those same files on the defendant's computer. Before trial, the defendant argued that FRE 403 prevented showing the jury videos of child pornography because he was willing to stipulate that the videos were of child pornography, thus decreasing their probative value. The court agreed to allow the videos without sound, but did not agree to review the videos prior to a decision on the 403 motion or being shown to the jury. The defendant was convicted for receipt and distribution of child pornography.

On appeal, the defendant argued that the court erred by not viewing the videos prior to ruling on their admissibility or presenting them to the jury and by not, over defendant's motion, providing potential jurors with details about the videos during voir dire (jury selection).

The Third Circuit held that unless the potential prejudice is obvious, district courts should review the evidence prior to making a 403 ruling. Because the court did not do that, the judgment was vacated and remanded for a new trial.

Here's the wording of the Third Circuit's rule:

[U]nless the Court determines that, considering the potential of unfair prejudice, the probative value of a proposed video excerpt is so minimal that it need not watch that excerpt, the Court must view the proposed video excerpts to not only assess their probative value and potential for unfair prejudicial impact but also to appropriately evaluate their admissibility in light of Rule 403's concern with redundancy.

With regard to the voir dire argument, the court determined that a decision to describe the types of content jurors may see in a child pornography case is within the discretion of the district court.

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Third Circuit holds that three-year-old information is not stale in child pornography cases

In United States v. Prawdzik, 2012 U.S. App. LEXIS 10840 (3d Cir. 2012), the Third Circuit affirmed a motion to suppress over an argument that a search warrant contained stale information because it had been three years since the sexual abuse had occurred.

On appeal, the defendant argued that the information supporting the search warrant was stale because the sexual abuse had ended three years earlier. The appellate court acknowledged that information supporting child pornography crimes could potentially grow stale, but the facts of this case did not support such an argument.

The defendant had sexually abused the child over a period of five to six years and was known at the time of the search warrant to have transferred videos of the abuse to his computer. Because "pedophiles rarely, if ever, dispose of child pornography," it was likely that the videos would still be there. Additionally, the defendant had recently contacted the victim, his daughter, by phone. As such, "there was a 'substantial basis' for the magistrate judge to conclude that the affidavit established probable cause."

Age of information is a factor to be considered in determining probable cause - the nature of the crime and the evidence presented should also be considered. See, e.g., United States v. Vosburgh, 602 F.3d 512 (3d Cir. 2010).

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3rd Circuit denies admission of testimony related to hostage victim's computer contents

In United States v. Santiago, 2012 U.S. App. LEXIS 8686 (3d Cir. 2012), the Third Circuit examined a conviction related to hostage taking. The defense argued the kidnapping was staged by the victim to get ransom money to pay for his gambling and/or sex addictions, but the trial and appellate courts held that testimony related to those arguments should be excluded.

A forensics expert for the defense investigated the victim's computer and "found various files indicative of child pornography and emails suggesting that Correa had solicited prostitutes, several online poker applications, miscellaneous financial information, a video game titled "River City Ransom," and a reference to a website that included the words "A Little Kidnapping Never Hurt Anyone." An e-mail was also found where the victim claimed "to be 'broke' ... while negotiating prices with prostitutes."

In the defense's original argument, they suggested that the hostage victim had actually staged the kidnapping in order to obtain ransom money to pay his gambling debts. The defense later conceded that the victim had no gambling debt and did not have a gambling addition. Instead, the new theory was that his addiction to porn and prostitutes gave him a financial motive for planning the kidnapping. The district court concluded that all testimony from the experts related to gambling and sex addition was not relevant, was hearsay, and/or was highly prejudicial.

On appeal, the Third Circuit affirmed, finding that "there was no evidence that [the victim] was in debt or that [his] income was insufficient to satisfy his sexual activities." His communication that he was "broke" was made "while negotiating prices with prostitutes" and was simply him "haggling over prices" as he "had the incentive to understate his ability to pay." Further, "[e]vidence of [the victim] soliciting prostitutes and viewing pornography would likely inflame the jury.

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3rd Circuit remands challenge of porn industry record-keeping requirements

In Free Speech Coal. v. Attorney General of the United States, 2012 U.S. App. LEXIS 7543 (3rd Cir. 2012), the Third Circuit remanded a case challenging the constitutionality of 18 U.S.C. § 2257 and § 2257A, a record-keeping requirement for the pornography industry, after the court granted the government's motion to dismiss. On remand, the district court must consider the plaintiff's First and Fourth Amendment arguments.

The statute requires the producer to keep identifiable records of each performer and to have the records available for inspection by the attorney general "at all reasonable times."

With regard to the First Amendment claim, the Third Circuit found that the statute is content neutral (not an attempt to regulate content, but to protect against child pornography) and is subject to intermediate scrutiny. The court found that the standard was met, but it remanded to allow the plaintiffs "to conduct discovery and develop the record regarding whether the Statutes are narrowly tailored." They also concluded that the government's limiting instructions were likely insufficient.

The Fourth Amendment claim suggested that the statute and related regulations "unreasonably authorize the government to conduct warrantless searches and seizures. The court found that further development on the record is necessary to determine whether a violation of Jones or Katz has occurred and if the administrative search exception is applicable.

A concurring opinion by Judge Rendell concluded that more facts are necessary to determine the application of Jones, but that the administrative search exception cannot be justified.

Tellingly, neither the government nor the District Court has explained why the government's goal of ensuring compliance and deterring the fabrication of records would not be served by warrants issued on short notice as part of a regular, administrative enforcement scheme.

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Loss of hard drive images not due process violation without bad faith says Third Circuit

In United States v. Heiser, 2012 U.S. App. LEXIS 6430 (3d Cir. 2012), the Third Circuit upheld a denial of a motion to suppress evidence where the state had not acted in bad faith in the destruction and loss of complete mirror images of Heisner's computer.

The drive was in poor condition when seized, but experts were able to find 495 images of child pornography. A mirror image was made, and a copy of the image was sent to the local police department. Additionally, the images were also placed on a CD. The district court ordered the government to provide a mirror image of the drive to the defense, but the hard drive where the image was stored had crashed. Also, the image that had been sent to local law enforcement was lost. A new image could not be made so a copy of the CD with the images was sent, and the government did not disclose that a mirror image was unavailable until months later. After two years of Heisner's continuances, a forensic data recover business was able to recover 97% of the hard drive's files, including 490 of the 495 images of child pornography.

On appeal, Heisner sought to suppress the evidence from the hard drive, essentially arguing that the other 3% of the drive contained exculpatory evidence. The Third Circuit denied a due process violation existed and held that there was no bad faith on the part of the government.

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3rd Circuit affirms CP conviction, creates privacy rule, and makes it impossible to satisfy that rule

In United States v. Coates, 2012 U.S. App. LEXIS 3582 (3rd Cir. 2012), the Third Circuit affirmed a conviction for child pornography offenses. Coates had consented to the viewing of a text message on his phone, but the officer detoured through Coates's pictures, finding images of child pornography.

Coates had notified police that he was receiving text messages from a person threatening to kill his friend, and he took his phone to the local police station. An officer continued talking with Coates and apparently touching random buttons on the phone without looking at it. All of a sudden, he looked down and saw child pornography on the screen. Coates was charged and convicted on multiple child pornography counts.

According to the officer, he received the phone in a closed position, but Coates claimed it was open and displaying the text messages. An inmate testified that the officer had told him he "planned to 'beat it on a technicality'" because the surveillance video had inadvertently been lost.

On appeal, the appellate court found that Coates did not possess a legitimate expectation of privacy in his cell phone. For Coates to have maintained his privacy, he should have navigated to the message before handing his phone to the officer, or in the alternative, instructed the officer on how to navigate to the text message. What seems odd, however, is that the officer "testified that as Coates was sliding the phone through the slot, Coates told him that the message would be in his 'messages,' and that it 'should be the first message.'" I'm not sure how he could have explained it better. Thus, the court requires "instructions on how to manipulate [the phone]," but the officer testifying that such instructions were given is insufficient.

Of course, another issue is that text messages will not be found in the pictures folder, and thus consent to read the message properly restricted access. The court found that consent was given "to navigate his phone to reach the text message, which is precisely what Officer Persing did," but the images were "in plain view when he looked at the phone."

I understand the court's point - we don't want people producing child pornography of their children. But why do they create a rule providing for an expectation of privacy that is met by the facts of the case, and then deny that an expectation of privacy existed?

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3rd Circuit upholds search of cell phone photos folder for communications with a minor

In United States v. Karrer, the Third Circuit upheld a conviction for possession of child pornography after defendant's unsuccessful attempt to suppress evidence. 2012 U.S. App. LEXIS 1928 (3rd. Cir. 2012). The defendant, a 37-year-old man, had been engaging in "inappropriate communication" with teenage girls through the chat feature of Neopets, a children's website. The conversations discussed dating, and the defendant once told a girl he was in a nudist colony. A warrant was executed, seizing all computer devices and cell phones.

On appeal, the defendant argued the warrant was illegal or overbroad, and the court readily struck down both arguments. The warrant had authorized a search for child pornography, which the court found to be a mistake and unsupported by probable cause. However, the court still upheld a search of a cell phone's images folder.

Investigators were searching the phone for "unlawful communications with minors." The district court determined that "cell phones often archive communications as image files, which may be saved in photos folders" (actual language available at United States v. Karrer, 2010 WL 3824195, *3 (W.D. Pa. 2010)). The argument was that image files sent with an MMS could be saved to the photos folder, and investigators could determine if the image was received by MMS. The investigator opened the folder to look for communications, and child pornography was in plain view.

To me, it seems unlikely that an image in this folder could be proven to have been sent to the defendant by a minor (and they weren't, in fact) unless the MMS conversation was still saved on the phone, which also would have contained the image. The Third Circuit seems to think that actual conversations are archived as image files seemingly by default, which is not the case. If that is the understanding that courts take, this opens up a search of cell phone images when the phone is searched for any content, regardless of how narrowly-tailored the search is.

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Plans to manually cancel CP downloads did not negate intentional distribution

The defendant in a recent Third Circuit case argued he should have been given a two-level sentencing enhancement, rather than a five-level, because he did not intentionally distribute child pornography. He admitted to configuring his file sharing program to share images of child pornography, but he claimed that he planned to "intervene and manually [] cancel each attempted upload." Unfortunately for him, at least one image was downloaded by another user.

This argument was rejected because he could have configured the program not to share the files or he could have just not opened the program. The case is United States v. Corbett, 453 Fed. Appx. 226 (3rd Cir. 2011).

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