Fifth Circuit reverses acquittal in child pornography possession case

In United States v. Smith, the Fifth Circuit reversed the acquittal of a man convicted of possession of child pornography. (No. 12-60988 (5th Cir. 2014).) The district could had determined that "the evidence was insufficient to sustain the verdict," but the appeals court found that the conviction should stand.

Twenty-six videos of child pornography had been found on the defendant's computer, and the three suspects were roommates. The prosecution showed that one roommate could not have download the files because she was not using the computer at the time of the download. A second roommate testified at the defendant's trial and denied having downloaded the images. The defendant did not testify. The Fifth Circuit found that "these facts appear to implicate [him]."

However, it was shown that the second roommate did use the computer often. He also had no alibi for the download dates. The defendant had, however, offered an alibi through the testimony of three witnesses, and documents were presented to support the alibi. There were some discrepancies in this testimony, and the documentation was not fully supportive of the testimony.

The district court had acquitted the defendant on the basis that "it is just as likely that [the second roommate] downloaded the child pornography onto the computer as [the defendant] did." That, the Fifth Circuit held, is not the proper inquiry.

But the question is not whether, in terms of metaphysical probability, it is "equally likely" that [the second roommate] downloaded the files. The question is whether this evidence, taken in the light most favorable to the verdict, offers "nearly equal circumstantial support" for competing explanations.

The appeals court found that it did not and reversed the acquittal, holding that the jury simply chose to believe the roommate's testimony, and "[i]t is well within their discretion to do so."

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Fifth Circuit reverses in CP case due to lack of evidence showing policy for inventory searches

In United States v. Vernon, No. 12-60105 (5th Cir. 2013), the Fifth Circuit reversed a motion to suppress in a child pornography case over an argument that an inventory search to find the defendant's computer was conducted improperly.

The defendant was arrested at a Mississippi casino by the United States Marshals Service. He refused to consent to a search of his vehicle, and "upon inquiry, the marshals learned that the casino officials wanted the car removed."

I want to stop the story here to explain the significance of that last sentence. They didn't have a warrant, and the defendant wouldn't consent to the search, so the officers decided that they would just try to bypass the Fourth Amendment, because well, they can. One of the exceptions to the Fourth Amendment is for an inventory search. If a vehicle is, for example, obstructing a roadway, law enforcement may use their "community caretaking" powers to seize the car and take an inventory of its contents. It cannot, however, be done as a pretext for a search - such as when law enforcement just want to search a vehicle so they tow it.

In their inquiry to the casino, I'm assuming the conversation went something like this:

Marshals - "We're arresting someone at your casino for child pornography, and they have a car in your parking lot. You might want to thinking about having it removed." 

Casino - "Okay. Yes, we should probably do that."

Marshals - "What's that? You're asking us to tow the vehicle?" 

Casino - "Oh, sure. That would be great." 

The point is, the casino never would have known the driver of the car was no longer there - they're open 24 hours a day, and the parking lot is always half full. It's fairly obvious that the "inquiry" and search were done only because they wanted to look for evidence. Regardless, the Fifth Circuit held otherwise on this point.

So the car was towed by the local sheriff's department, and the sheriff's department performed an inventory search, resulting in the find of a computer. A search warrant was obtained, and child pornography was found.

Inventory searches require the search to be conducted using the department's standard policy as the "inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." At trial, the marshal testified about policy of the Marshals Service and admitted that their policy was not followed. No evidence was presented to show what the policy is for the local sheriff's department. As such, there is no way for the Fifth Circuit to know whether the inventory search complied and was, therefore, constitutional.

Thus, the motion to suppress was reversed, and the conviction was vacated and remanded.

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Fifth Circuit strikes down Mississippi law making "non-harmful" caller ID spoofing illegal

In Teltech Systems, Inc. v. Bryant, No. 12-60027 (5th Cir. 2012), the Fifth Circuit held that a Mississippi law making it illegal to spoof caller ID information was preempted by a federal law which only made spoofing for harmful purposes illegal.

In 2010, Mississippi enacted the Caller ID Anti-Spoofing Act which made it a misdemeanor for a person to spoof the identity or phone number of a caller. A federal law enacted later that year made it illegal to spoof such information "with the intent to defraud, cause harm, or wrongfully obtain anything of value." 47 U.S.C. § 227(e)(1). Thus, the Mississippi law prohibits all spoofing, but the federal law prohibits only harmful spoofing. The plaintiffs argued that Congress therefore intended to protect "non-harmful spoofing." Looking at the legislative history of the federal statute, the court agreed, finding that Congress intended to protect legitimate spoofing.

Many websites and smartphone apps allow users to spoof caller information. Many such apps also allow the user to disguise their voice and record the phone conversation.

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En banc Fifth Circuit continues circuit split with CP restitution, holds proximate cause not required for loss calculation

The Fifth Circuit recently decided en banc to continue a circuit split concerning restitution to child victims of images of child pornography. In re Amy Unknown, No. 09-41238 (5th Circuit 2012) (en banc). As discussed previously on this blog, the Fifth Circuit was the odd man out on the issue, with a panel having held that the statute's allowance for losses is not limited to those proximately caused by the defendant. In light of conflicting opinions in other circuits, the Fifth took up the case en banc.

Other circuits have held that 18 U.S.C. § 2259's "proximate result" requirement limits awards to losses that are a proximate cause of the defendant's acts. Therefore, a defendant who has only viewed the images may only be found liable for the damage he proximately caused the victim.

The Fifth's decision, however, allows courts to award restitution in the full amount of the victim's losses (including medical services, therapy, child care, lost income, attorney's fees, and other expenses). The victim in this case (the "Amy series") has previously been determined to be entitled to approximately $3.4 million. The appeals court held that the district court must order restitution in the full amount.

Thus, the district court decision was vacated and remanded.

A concurring/dissenting opinion of four judges argued that district courts should be given discretion in the amount and not be required to impose the full amount when multiple violators contributed to the victim's losses.

For other posts related to this issue, visit our restitution label.

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Analysis of Fifth Circuit CSLI oral argument: Government likely to win on Fourth Amendment issue

The Fifth Circuit heard oral argument yesterday on the oft-discussed cell site data case. The Fives are the second federal court of appeals to consider this issue; the Third Circuit addressed cell site data in relation to the Fourth Amendment in 2010.

The issues presented in this case are two-fold: first, whether the Constitution requires a warrant based on probable cause (rather than a court order issued under a lesser standard provided by § 2703(d) of the Stored Communications Act) when the Government wants cell phone providers to turn over data showing the location of the cell phone. In other words, the issue is whether the Government needs to have probable cause to turn cell phones into semi-specific tracking devices. The second issue is, assuming that cell site data is not protected by the Fourth Amendment, whether the magistrate judge has discretion to deny the Government’s § 2703(d) application for this data and insist upon a showing of probable cause.

The argument in this case was an hour long, much longer than the customary forty minutes usually allotted to parties arguing before the Fifth Circuit. The extra time may have been a result of the truly bizarre procedural posture of this case. According to the Government, it presented “specific and articulable facts” pursuant to § 2703(d) of the Stored Communications Act that the cell phone numbers of three people were pertinent to criminal investigations. The magistrate judge, however, never granted or denied the Government’s § 2703(d) applications; and, instead, ruled that this data was protected by the Fourth Amendment and that the Government needed probable cause to obtain it. Thus, the Government’s argument was presented by Nathan Judish, an attorney from the Department of Justice. There was no traditional appellee represented at oral argument; the people whose cell site data the Government was trying to obtain are anonymous, so there was no one with a direct, personal interest in the outcome of this case advocating for Fourth Amendment protection. Instead, Professor Susan Freiwald and Hanni Fakhoury (EFF) presented the arguments of the “Fourth Amendment and the people,” whatever that means.

The three-judge panel appointed to hear oral arguments were Fifth Circuit Judges Thomas Reavley, Edith Clement, and James Dennis. Interestingly enough, this was a liberal-majority panel in a notoriously conservative circuit. Judge Reavley was appointed by the Carter administration, and Judge Dennis was appointed by the Clinton administration. A liberal-majority panel on the Fifth Circuit is like the Loch Ness Monster: there are reports of people seeing it happen, but I have always figured that it was a myth propagated by circus conductors and the ACLU.

When I saw the membership of the panel, my first instinct was that the panel would render a 2-1 decision holding that cell site data is protected by the Fourth Amendment. I figured that Judges Reavley and Dennis would make up the majority, and Judge Clement would be the lone dissenter. After hearing oral argument, I do not think my prediction could be more wrong. I think the majority of the panel will hold that this data is not protected by the Fourth Amendment, Judge Reavley (and possibly Judge Dennis) siding with Judge Clement.

Why do I think this?

First, the judges struggled to understand the technology. When I read the briefs, I was astounded that they were not written with the understanding that these judges were not going to have an innate understanding of rather complicated cell phone technology. The judges on the panel ranged in age from sixty-four to ninety-one. I think it is safe to assume that they know how to use a cell phone, or at least, they have seen one of their law clerks use a cell phone at some point. Any imputed knowledge beyond that, i.e., the definition of a femtocell, is ludicrous. A number of the panel’s questions were geared toward trying to understand basic cell site technology, and I can see why. The Government’s brief does not define “cell site data” until page seven. Then, once you get to page seven, the Government defines cell site data as “the antenna tower and sector to which the cell phone sends its signal.” Now, imagine you are speaking to your grandmother and that is how you explain the concept of cell site data to her. Is she going to have any idea what you are talking about? I think not. I would offer the non-scientific estimate that at least a third of the questions during oral argument related to the basic tenets of the technology involved. These questions should have been addressed within the first five pages of the parties’ briefs; yet I doubt whether the panel understands the technology and the type of information being produced, even after oral argument. Ultimately, the real shortfalling is on the amici who were trying to convince the court that revelation of this data to the Government amounted to a significant intrusion into privacy. If the court cannot understand how cell phone technology works and why consumers have a privacy interest in this data, the Fifth Circuit cannot hold that cell site data is protected by the Fourth Amendment.

Second, there was no definite explanation about what kind of data would be produced as a result of these § 2703(d) applications. Judge Reavley told the parties, “It is critical to know exactly what information is being obtained in these . . . cases.” Yet, he received two different answers during oral argument. The Government mumbled something about call-times and cell phone towers; Professor Susan Freiwald and Hanni Fakhoury painted a picture that was positively Orwellian with the Government determining location of the cell phone within fifty feet, even when the cell phone was turned off. It is clear that the court did not have access to the § 2703(d) applications prior to oral argument and has no understanding whatsoever what type of data will be revealed if the applications are granted. Perhaps things will be clearer after an over-worked, under-paid law clerk receives the applications along with the case record after oral argument. But, as of oral argument, it is clear that only the Government was privy to this information, and the Department of Justice was less than forthcoming.

Third, the panel asked no questions during the time the parties were discussing the Fourth Amendment. This generally indicates a lack of interest. Also, Judge Reavley stated during oral argument, “I just don’t see us announcing a law that you have to have a probable cause showing from a magistrate under this statute. Period.”

One thing I found very interesting about argument was the judges’ constant questions to the parties about how they can avoid the Fourth Amendment issue altogether. Judge Clement raised a very good point during oral argument asking the Government whether the issue in the case was moot. The Government filed these § 2703(d) applications in 2010. Although the Government’s attorney assured the court that the criminal investigations were ongoing, I think Judge Clement found this doubtful. To my knowledge, however, the Fifth Circuit has no way of assuring that this case is not moot, and the Government is still pursuing these criminal investigations. Ultimately, the Fives’ continued jurisdiction over this matter rests upon the Government’s pinky swear that these criminal investigations abide. Oy vey.

Although the Government is likely to win the Fourth Amendment argument, I think the Fifth Circuit will hold that it is within a magistrate judge’s discretion to reject an application for cell site location information which would therefore impose a probable cause requirement to obtain the data. This is the result reached by the Third Circuit, and the judges seemed hesitant to create a circuit split.

So, my trepidatious prediction, based on oral argument, is that the parties will split the baby: cell site data, at least in its current iteration, is not protected by the Fourth Amendment, but there are certain situations where a magistrate judge can insist upon a showing of probable cause when considering a § 2703(d) application. If the case does reach the Fourth Amendment issue, I would not be surprised that there are some subsequent rumblings about an en banc vote.

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Oral argument posted in Fifth Circuit cell site case

Below is a link to the oral arguments in the Fifth Circuit cell site location information case I blogged about on Monday. Arguments were presented by Nathan Judish from the DOJ, Professor Susan Freiwald, and Hanni Fakhoury of the EFF. We'll have analysis of the arguments soon.

http://www.ca5.uscourts.gov/OralArgRecordings/11/11-20884_10-2-2012.wma

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Fifth Circuit reverses lifetime term of supervised release in CP case

In United States v. Alvarado, the Fifth Circuit vacated and remanded a lifetime term of supervised release as part of a sentence for receipt of child pornography because the trial judge "never considered the possibility of anything less than lifetime supervision." No. 11-40771 (5th Cir. 2012).

The defendant appealed the sentence, arguing that it was procedurally and substantively unreasonable. The Fifth Circuit found the 170-month prison sentence to be reasonable but held otherwise for the lifetime term of supervised release under a plain error standard of review.

At trial, the judge noted, "I've never given, never not given, since it was authorized, a lifetime, a lifetime supervision in child pornography." Thus, as the Fifth Circuit understood it, she "never considered the possibility of anything less than lifetime supervision.... And where a judge admits to the automatic imposition of a sentence, without regard for the specific facts and circumstances of the case or the range provided for in the statute, then it seriously affects the fairness, integrity, and public reputation of judicial proceedings."

The sentencing guidelines allow for a range of three years to a lifetime term of supervised release for sex offenses.

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Fifth Circuit affirms illegal gambling convictions for use of sweepstakes software

In United States v. Davis, 2012 U.S. App. LEXIS 15875 (5th Cir. 2012), the Fifth Circuit affirmed the defendants' convictions for illegal gambling after they used computer software to allow users to participate in a sweepstakes in violation of federal and Texas law.

The defendants were charged with conducting an illegal gambling business under 18 U.S.C. § 1955 for their actions in a sweepstakes promotion at three Texas Internet cafés. Under the statute, the act must "violate[] the law of the state in which it is conducted." The relevant issue was whether the defendants operated an "electronic gambling device" in violation of Texas law. If participants paid consideration for the privilege of playing, it would be considered such a device.

Software running on computers at the Internet cafés allowed users to participate in the sweepstakes in three ways: (1) purchasing Internet time - $1 = 100 entries, (2) requesting entries in person, up to 100 per day, or (3) requesting entries by mail, up to 100 per day. Winning entries were predetermined, and participants could discover whether they won by asking an employee, swiping their card, or playing games on the computers.

Thus, the defendants argued that since entries were received without purchase or free with the purchase of Internet time, there was no consideration. The Fifth Circuit, however, held:

[T]he consideration element in the Texas gambling statutes can be fulfilled without an explicit exchange of money for the opportunity to participate in a sweepstakes.... Here, as in Jester, there is legally sufficient evidence from which a reasonable fact-finder could infer that the sale of Internet time at the defendants’ cafés was an attempt to legitimize an illegal lottery.

The court also struck down an argument that the defendants were entitled to a mistake of law defense. The defendants argued they had read opinions from the Texas Attorney General prior to the sweepstakes which supported their plan. Because the federal statute criminalizes what is illegal under state law, a defense should be available based on mistake of state law. The Fifth Circuit, however, found that the defendants did not "reasonably rely on any 'official statements'" because more recent opinions would have shown the act was illegal.

Therefore, the convictions for illegal gambling and conspiracy to commit illegal gambling were affirmed (though a money laundering conviction was reversed).

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Fifth Circuit reverses CP sentencing enhancement due to government's failure to prove "relevant conduct"

The Fifth Circuit vacated and remanded a sentence due to an enhancement for possession of 277 images of child pornography because the defendant was charged with distribution and no evidence was presented that the additional images were "relevant conduct" under the guidelines. United States v. Teuschler, 2012 U.S. App. LEXIS 15284 (5th Cir. 2012).

The defendant had communicated with what he thought was a 13-year-old girl in an Internet chatroom, though in reality it was a police officer. Ultimately, he sent images of adult and child pornography, leading to his arrest and guilty plea of distribution of child pornography. At sentencing, three levels were added because a total of 277 images of child pornography were found on his computer.

On appeal, the defendant argued that the images found on his computer (other than the nine he transmitted) were not "relevant conduct" under the federal sentencing guidelines. The government countered that the images were "part of a 'common scheme or plan'" because the defendant's inventory of images could all be used to entice children and were "relevant conduct to the crime of distribution." The Fifth Circuit agreed with the defendant as there was no evidence of an ongoing scheme or that the images were possessed at the time of the act for which he was charged.

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5th Circuit finds chat log authenticated with detective testimony

Concurring with decisions from other jurisdictions, a Fifth Circuit panel held yesterday that chat logs were properly authenticated by the "detective testifying that the transcripts were an accurate reflection of the chats." United States v. Lundy, 2012 U.S. App. LEXIS 6315 (5th Cir. 2012). The detective, who was a party to the conversation, had copied and pasted the text into a Word document. Additionally, he "was subject to cross-examination on his biases and methodology."

Also, the detective used software to take a video screen capture during the chat. The video was also found to have been properly authenticated.

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5th Circuit addresses "substantial step" requirement for persuading minor to engage in sexual activity

In United States v. Broussard, the Fifth Circuit addressed whether (1) defendant's conversations with minors suggesting meeting for sexual activity but without travel was a substantial step, and (2) imposing a 40-year sentence to give the defendant "treatment" was reasonable. 669 F.3d 537 (5th Cir. 2012). The court upheld the guilty plea as the substantial step issue was not plain error, but vacated and remanded the sentence because the court considered Broussard's rehabilitation.

Broussard had met the victims on Facebook, obtained their cell phone numbers, and conversed with them through text messaging about meeting to engage in sexual activity. No definite travel plans were made. Broussard pleaded guilty to attempting to persuade a minor to engage in sexual activity under 18 U.S.C. § 2422(b). On appeal, he argued that his guilty plea should not have been accepted as he made no substantial step because the conversations were "'all fantasy' and 'just talk,'" and he made no attempt to meet with the victims.

Courts use a two-factor test to prove attempt under § 2422(b), requiring that the defendant "(1) acted with the culpability required to commit the underlying substantive offense, and (2) took a substantial step toward its commission." A "substantial step" does not require that "sexual conduct occur," (United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000)), nor does it require "travel or preparations in advance of travel" (United States v. Barlow, 568 F.3d 215 (5th Cir. 2009)). However, mere preparation does not satisfy the requirement. United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001).

Ultimately, the court held that because it has yet to rule as to whether this conduct constitutes a substantial step, it was not plain error for the district court to accept the guilty plea. Other courts provide some guidance on the issue. Recently, the Court of Appeals for the Armed Forces held that asking "u free tonight" was not a substantial step as "[t]here was no travel, no 'concrete conversation,' such as a plan to meet, and no course of conduct equating to grooming behavior." (See my prior post here.) The Ninth Circuit has held, "[T]he substantial step must 'unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007).

At sentencing, the trial court found Broussard a "scary individual when it comes to children" and stated that he "is sick in the head." As such, the judge felt that imposing 40 years of imprisonment followed by lifetime supervised release was a way to provide Broussard with "the treatment that he needs." Citing the Supreme Court in Tapia, the Fifth Circuit vacated the sentence because courts may "are prohibited 'from imposing or lengthening a prison term to promote an offender's rehabilitation.'" Tapia v. United States, 131 S. Ct. 2382, 2391 (2011). The sentence was plain error and was remanded.

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Fifth Circuit reverses CP charge because computer was shared, dissent suggests argument is 'nonsense'

In United States v. Moreland, 665 F.3d 137 (2011), the Fifth Circuit dealt a crushing blow to prosecutors, finding that where a computer is shared between multiple users and no evidence clearly proves which user viewed child pornography found on it, a conviction will not stand.

The defendant lived with his wife and father. The three shared two computers, and the defendant's father often used them late at night. In September 2007, the wife found Internet history that indicated viewing of child pornography, and she reported it to police. In January 2008, the father died, and in May 2008, the defendant was charged with possession of child pornography. Testimony at trial indicated that there was no way to know the download dates of the images presented to the jury, and it was impossible to distinguish use of the computer between the three. The defendant's family testified that the father had long been a viewer of pornography.

With regard to custody of the computers, the court found that the prosecution offered no evidence to show that the defendant knew of the images and had control over them. Further, even exclusive possession of a computer without evidence showing defendant's knowledge and control over the images is insufficient for a possession conviction. Therefore, the court reversed the conviction.

In his snarky dissent, Judge Jolly wrote, "The record does not reflect whether the jury box had more than twelve chairs, but we do know—and we know for sure—that two more jurors are trying to crowd into the box." Jolly argued that there was sufficient evidence to support the conviction and that the "'[m]y dead Daddy did it' defense was deceitful and fictional nonsense." If you want to get schooled in deference to a jury's verdict and proper standards of review, this dissent is an excellent read.

It will be interesting to see whether the Fifth Circuit rehears the case en banc. Meanwhile, I would imagine defense attorneys certainly appreciate the gift.

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5th Circuit addresses CP sentencing, terms of release

The Fifth Circuit released a 38-page opinion today regarding sentencing enhancements and terms of supervised release in a child pornography case, United States v. Miller, 665 F.3d 114 (5th Cir. 2011). Miller appealed his 220-month sentence and release terms, but the judgment was affirmed by the appellate court.

Miller had pled guilty to the knowing transportation or shipment of child pornography. For sentencing purposes, the court found that he had possessed 495 images, engaged in sexually explicit chats with children, and requested child pornography exchanges via e-mail. The sentencing guidelines called for a range of 188 to 235 months in prison, and he was sentenced to 220 months. Before the Fifth Circuit, he argued that that sentence was unreasonable and was longer than necessary to satisfy the sentencing goals.

As part of his argument, he cited United States v. Dorvee (616 F.3d 174 (2d Cir. 2010)), a Second Circuit case that held Dorvee's sentence to be unreasonable because it would require more time in prison for distributing child pornography than for a person "actually engaged in sexual conduct with a minor." Addressing Dorvee, the Fifth Circuit held, "the Guidelines remain the Guidelines" and that "[i]t is for the Commission to alter or amend them."

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