Philadelphia Criminal Defense Lawyer Blog

Child Pornography Legal To View Online In New York – Court Rules That Looking At Porn Doesn't Mean Possession

Thu, 17 May 2012 15:00:00 -0500

In The People v. James D. Kent, 2012 NY Slip Op 3572, the Court of Appeals of New York reversed Defendant Kent’s conviction for possession of child pornography as to counts relating to pornographic images he did not download or otherwise manipulate or control.

On May 26, 2005, defendant James D. Kent, a professor of public administration at a Dutchess County college, received a new office computer through a campus-wide technology upgrade. The files stored on the hard drive of the old computer were transferred to the new computer. On April 5, 2007, a student employee of the college's information technology (IT) department went to defendant's office in response to his complaints that his computer was malfunctioning. While running a virus scan of the computer's hard drive, the employee discovered a work folder containing numerous ".jpg" or picture files, displayed as "thumbnails," of scantily clad, prepubescent girls in provocative poses. When the virus scan failed to correct the computer's unresponsiveness, the employee removed defendant's hard drive and took it back to the IT office, where supervisors learned of the images. College administrators informed defendant that these images had been found on his computer, but defendant denied any knowledge of them.

Approximately two weeks later, the college submitted defendant's hard drive to the Town of Poughkeepsie Police Department with a "Consent to Search" form signed by a college administrator. Thereafter, an investigator in the computer forensic lab of the New York State Police conducted a forensic analysis of defendant's hard drive and found a variety of pornographic images and videos featuring children. But while many images/videos had been purposefully downloaded by defendant, others had been simply viewed and automatically “cached”, or stored to his hard drive with no action on his part.

After a bench trial, defendant was convicted of promoting a sexual performance by a child (Penal Law § 263.15) and possessing a sexual performance by a child (Penal Law § 263.16). He was sentenced to concurrent indeterminate prison terms of one to three years. He appealed; the Appellate Division of the Supreme Court (New York) affirmed. He sought further review.

The Court of Appeals of New York found that defendant was properly convicted of promotion and possession of a video and other images of child pornography recovered from his computer where the evidence established that he had downloaded and/or saved the video and the images prior to deleting them. However, as to images that were automatically cached, the Court ruled differently. It held that evidence of the existence of cached images of child pornography on a defendant's computer, without more, was insufficient to prove that the defendant procured or possessed them. As there was no evidence that defendant downloaded, saved, printed, or otherwise manipulated or controlled a Web page containing images of child pornography while it was on his screen, evidence that he had accessed a given child porn site was insufficient to convict him of promoting or possessing a sexual performance by a child. Defendant's conviction of promotion and possession was reversed as to the counts relating to images he had not downloaded or otherwise manipulated or controlled.

Third Circuit Rules that Federal Sentencing Enhancement for Possessing a Firearm While Committing A Felony Applies – Even When the Felony is the Burglary of the Same Firearm

Fri, 27 Apr 2012 09:00:00 -0500

In United States v. Keller, 666 F.3d 103 (3d Cir. 2011), the prosecution appealed a decision of the United States District Court for the Western District of Pennsylvania, which found that a sentencing enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) did not apply to defendant's conduct. This enhancement increases a defendant's offense level by four points when he "used or possessed any firearm or ammunition in connection with another felony offense."

In 2007, Defendant Jason Keller and two others burglarized a gun shop in Western Pennsylvania. Keller and his co-conspirators drove a vehicle through the front doors of Fazi's Firearms in Plum Boro and absconded with thirty firearms. After his apprehension, Keller confessed that he sold about eighteen of the firearms to "Adrian" in Maryland for $2,000.

A grand jury of the United States District Court for the Western District of Pennsylvania indicted Keller for conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371, and stealing firearms from a federally licensed firearms dealer in violation of 18 U.S.C. § 922(u). The Government subsequently filed an information against Keller, charging him with possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). Keller pleaded guilty to all three offenses.

The probation office which prepared Keller’s presentence investigation report concluded that his burglary was "another felony offense" justifying application of the enhancement under § 2K2.1(b)(6), which, inter alia, had to be applied if the defendant used or possessed any firearm or ammunition in connection with another felony offense. The district court held that the enhancement did not apply. On appeal, the United States Court of Appeals for the Third Circuit held that Amendment 691 to the Sentencing Guidelines, U.S. Sentencing Guidelines Manual app. C, amend. 691, essentially overruled its precedents holding that § 2K2.1(b)(6) did not apply when the predicate offense was burglary of the firearms that were the subject of the conviction.

The court vacated the judgment and remanded so the district court could recalculate defendant's guidelines range by applying the four-point enhancement in § 2K2.1(b)(6) before considering the 18 U.S.C.S. § 3553(a) factors and imposing a new judgment of sentence.

Employee Who Used Work Computers to Steal Trade Secrets Secures Dismissal of Charges

Thu, 26 Apr 2012 12:00:00 -0500

In United States v. Nosal, No. 10-10038, 2012 U.S. App. LEXIS 7151, the United States Court of Appeals for the Ninth Circuit held that theft of trade secrets by an employee using his work computer did not qualify as a federal crime under the statute used to charge him. The Court upheld the ruling of the United States District Court for the Northern District of California, which dismissed five counts of an indictment against defendant for failure to state an offense pursuant to the Computer Fraud and Abuse Act (CFAA), 18 U.S.C.S. § 1030.

Defendant David Nosal used to work for Korn/Ferry, an executive search firm. Shortly after he left the company, he convinced some of his former colleagues who were still working for Korn/Ferry to help him start a competing business. The employees used their log-in credentials to download source lists, names and contact information from a confidential database on the company's computer, and then transferred that information to Nosal. The employees were authorized to access the database, but Korn/Ferry had a policy that forbade disclosing confidential information. The government indicted Nosal on twenty counts, including trade secret theft, mail fraud, conspiracy and violations of the CFAA. The CFAA counts charged Nosal with violations of 18 U.S.C. § 1030(a)(4), for aiding and abetting the Korn/Ferry employees in "exceed[ing their] authorized access" with intent to defraud. Nosal filed a motion to dismiss the CFAA counts, arguing that the statute targets only hackers, not individuals who access a computer with authorization but then misuse information they obtain by means of such access.

The district court granted the defense motion to dismiss these charges, and the Court of Appeals for the Ninth Circuit upheld that ruling. Chief Judge Alex Kosinski noted that the phrase “exceeds authorized access” in the CFAA does not extend to violation of use restrictions. The Court further held that the CFAA was a statute meant to punish hacking – the circumvention of technological access barriers – not misappropriation of trade secrets. Finally, the Court stated that if there was any doubt about whether Congress intended the CFAA to prohibit the conduct in which defendant engaged, then the court had to choose the interpretation least likely to impose penalties unintended by Congress.

5th Circuit Holds that a Defendant’s Confession to Harboring Illegal Aliens Can Be Suppressed Where ICE Agents Violated the Fourth Amendment

Wed, 18 Apr 2012 09:00:00 -0500

In United States v. Hernandez, 670 F.3d 616 (Ct. App. 5th 2012), The United States Court of Appeals for the Fifth Circuit found error in the denial of a Defendant’s motion to suppress her post-Miranda statements as fruit of the poisonous tree. The Court reversed the denial of defendant's suppression motion, vacated the conviction and sentence, and remanded.

In Hernandez, law enforcement officers received an anonymous tip that ten to fifteen illegal aliens were being held against their will in Defendant Melinda Hernandez's trailer. The officers, including Immigration and Customs Enforcement ("ICE") agents, went to Hernandez's trailer around midnight to investigate. After announcing themselves and receiving no response, the officers banged on the doors and windows, shouting that they were police and that the occupants should open the door. The officers then heard movement within the trailer. They tried to open the front door, but the outer screen door was locked. After one of the officers broke the glass pane of the screen door with a baton, Hernandez screamed that she was coming to open the door. When Hernandez opened the door, she noticed that the officers had their weapons drawn.

The officers searched the trailer and found two illegal aliens, Luis Alberto Andrade-Quesada and his nephew, Jose Moises Regalado-Soto, in the trailer. Hernandez, Andrade-Quesada, Regalado-Soto, and Hernandez's boyfriend, Sergio Guadalupe Ayala, who was also in the trailer at the time, were taken to the ICE office for questioning. Hernandez and Ayala waived their Miranda rights and admitted that Andrade-Quesada and Regalado-Soto stayed in the trailer and that they knew that the two men were illegal aliens. Andrade-Quesada also made a statement indicating that he had agreed to pay Hernandez $150 per month so that he and his nephew could stay with her.

Hernandez was charged with harboring an illegal alien for financial gain. She argued that the post-Miranda statements that she, Ayala, and the illegal alien made at the ICE office constituted fruits of the poisonous tree and should be excluded. She also argued that her doorstep admission that she had at least one illegal alien in her home, which the Government asserted gave authorities probable cause to arrest her, was obtained by exploiting the illegal entry into her home. The district court denied Hernandez’ motion to suppress the statements.

The appellate court disagreed, holding that suppression of Hernandez’ post-arrest confession was warranted under the “fruits of the poisonous tree doctrine” because (1) her doorstep admission was tainted by the agents' Fourth Amendment violation since she was illegally "seized" without probable cause before the admission due to the agents' actions, and the fact that an agent informed her about the anonymous tip after or during the course of the violation was not an "intervening event of significance," and (2) factors weighed heavily in her favor since there was no indication that more than a few hours passed between the violation and the statements, there were no intervening circumstances, and the agents' conduct was egregious.

Supreme Court Approves Strip Searches, Even For Minor Offenses

Tue, 17 Apr 2012 09:00:00 -0500

The Supreme Court of the United States recently held, in a 5-4 decision, that officials may strip-search people arrested for any offense, no matter how minor, before admitting them to jails - even if the officials have no reason to suspect the presence of contraband.

In Florence v. Board of Chosen Freeholders, Petitioner Albert W. Florence was arrested during a traffic stop by a New Jersey state trooper. The trooper checked a statewide computer database and found a bench warrant issued for petitioner's arrest after he failed to appear at a hearing to enforce a fine. Petitioner was initially detained in the Burlington County Detention Center and later in the Essex County Correctional Facility, but was released once it was determined that the fine had been paid.

At the Burlington County jail, Florence, like every incoming detainee, had to shower with a delousing agent and was checked for scars, marks, gang tattoos, and contraband as he disrobed. He also had to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the second jail, Florence again had to remove his clothing while an officer looked for body markings, wounds, and contraband. He was also required to lift his genitals, turn around, and cough while squatting.

Florence filed a 42 U. S. C. §1983 action in the Federal District Court against the government entities that ran the jails and other defendants, alleging Fourth and Fourteenth Amendment violations, and arguing that persons arrested for minor offenses cannot be subjected to invasive searches unless prison officials have reason to suspect concealment of weapons, drugs, or other contraband. The court granted him summary judgment, ruling that "strip-searching" nonindictable offenders without reasonable suspicion violates the Fourth Amendment. The Third Circuit reversed.

The Supreme Court agreed with the Third Circuit, holding that deference had to be given to jail officials unless substantial evidence showed their response to the situation was exaggerated. The Court felt that concerns about gang members provided a reasonable basis to justify a visual inspection for signs of gang affiliation during intake. The Court also highlighted the importance of detecting contraband concealed by new detainees. Ultimately, the Court found that the search procedures to which Florence was subjected struck a reasonable balance between inmate privacy and the jail's needs.

Third Circuit Court of Appeals Rules That Second Amendment Protections Are Limited for Gun Owners Who Live With Convicted Felons

Mon, 16 Apr 2012 09:00:00 -0500

In United States v. Huet, No. 10-4729 (3d Cir. Jan 5, 2012), Police executed a valid search warrant of a home shared by Melissa Huet and Marvin Hall — Hall happened to be a convicted felon. In the course of the search, police found a firearm. The Government charged Hall with illegal possession of a firearm under 18 U.S.C. § 922(g), and charged Huet with aiding and abetting his possession, also under § 922(g).

Huet filed a motion under Rule 12 (b)(3)(B) to dismiss the charge on grounds that the Indictment failed to state an offense under § 922(g), and also argued that, as a non-felon legally entitled to possess a firearm, she enjoys protection under the Second Amendment. The District Court agreed, and dismissed the Indictment as to Huet.

The District Court then went to rule that even if the Indictment did properly charge a § 922(g) violation, it violated Huet’s Second Amendment rights because otherwise it would eliminate “the right of a sane, non-felonious citizen to possess a firearm in her home simply because her paramour is a felon.”

The Government appealed, and the Third Circuit reversed and remanded.

First, the Court observed that the Indictment properly charged Huet with aiding and abetting under § 922(g): it alleged that Hall was an illegally possessing felon, and that Huet knew or had reason to know Hall was prohibited from possessing a firearm, and rendered aid or assistance in Hall’s possession of a firearm.

With respect to the Second Amendment argument, the Court pointed to the language in District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008), that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons.” The Court stated that — contrary to the Fifth and Tenth Circuits — it had “explicitly held “in United States v. Barton, 633 F.3d 168, 171, that this language was not dicta, and so bound the court.

As a consequence, the Court held that the Second Amendment did not shield Huet from being charged with aiding and abetting a felon to possess a firearm, as Huet’s status as a non-felon was irrelevant. Although Huet could legally possess a firearm, she could violate § 922(g), by aiding and abetting a felon.

Arkansas Supreme Court OK’s Sex Between Teachers and 18-Year Old Students

Fri, 13 Apr 2012 12:15:00 -0500

The Supreme Court of Arkansas recently held that the State could not criminalize sex between consenting adults, even if one is a teacher and the other an 18-year old student.

Paschal v. State of Arkansas, 2012 Ark. 127, evolved from the conviction of Defendant David Paschal, a high school History and Psychology teacher who engaged in a consensual sexual relationship with an 18-year-old student over a five-month period. Paschal was initially convicted and sentenced to 30 years in prison.

On appeal, the state Supreme Court held, however, that Ark. Code Ann. § 5-14-125(a)(6) Supp. 2009), as applied to a high school teacher who engaged in a consensual sexual relationship with an 18-year-old student, who was an adult under Ark. Code Ann. § 9-25-101(a) (Repl. 2009), infringed on the teacher's fundamental right to privacy and was not the least restrictive method available for the promotion of the State's interest; therefore, it was unconstitutional.

“Regardless of how we feel about Paschal’s conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts,” the Court wrote in the majority opinion.

The court reversed and dismissed the convictions for sexual assault in the second degree.

3rd Circuit Upholds 30-year Sentence in Child Pornography Case

Fri, 23 Mar 2012 09:00:00 -0500

In U.S. v. Hardy, the Court of Appeals for the Third Circuit upheld the thirty year prison sentence handed down by the United States District Court for the Western District of Pennsylvania when defendant Kelly Hardy pleaded guilty to three child pornography offenses. 2011 U.S. App. LEXIS 24475.

On April 16, 2009, law enforcement officers conducted a search of Hardy's home and seized numerous "pairs of soiled young girls' underwear" and a large amount of electronic equipment, "including 14 desktop computers, three laptop computers, 60 hard drives, over 4,000 compact discs and digital versatile discs, and over 3,000 floppy discs, eight thumb drives, 36 zip discs, two camcorders, one Palm Pilot, one digital camera, one 35-millimeter camera, two webcams, one cellphone, and over 800 video tapes." Forensic analysis of the computers revealed thousands of images of child pornography, many of which Hardy had received and exchanged electronically. The images depicted pre-pubescent children of various ages engaged in sexual acts. Officers also accessed Hardy's sexually explicit internet chats with another man, with whom Hardy discussed "breaking into homes, raping children, killing them, and making their parents watch." Id. at 1-3.

Hardy pleaded guilty to transportation of child pornography, in violation of 18 U.S.C. § 2252(a)(1) (Count One); receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Count Two); and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three). During his sentencing hearing, Hardy called Dr. Jolie Brams to testify about his psychological history and "deeply ingrained sexual urges." Because Hardy's offense level was 42 and he had no criminal history points, his applicable Guidelines range was 360 months to life. After rejecting his request for a downward variance, the Court sentenced Hardy to 360 months in prison, consisting of 240 months for Count One and 120 months for Count Two, to run consecutively.

Hardy appealed the sentence, arguing that the five-level enhancement he received under USSG § 2G2.2(b)(3)(B) was predicated on the erroneous factual finding that he distributed pornographic images of children for a "thing of value," namely, other such images. Id. At 4-5.

The Court of Appeals upheld the sentence, referencing the applicable sentencing guidelines. Those guidelines hold that for purposes of USSG § 2G2.2(b)(3)(B), “distribution” includes "bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit." The Court wrote, “The presentence investigation report indicates that Hardy made such exchanges. Because the conclusion that Hardy made in-kind exchanges of child pornography finds support in the record, we see no clear error in the District Court's application of the five-level enhancement.” Hardy at 5.

Supreme Court Reiterates the Duty of the Prosecution to Disclose All Potentially Exculpatory Evidence

Wed, 21 Mar 2012 10:00:00 -0500

The Supreme Court of the United States decided the landmark case of Brady v. Maryland in 1963. 373 U.S. 83. While the Brady doctrine stemming from this case is nuanced and has been addressed many times over the past few decades - at its core, Brady imposes a duty upon the prosecution to turn over to the defense in a criminal trial all evidence which tends to cast doubt upon a defendant’s guilt. In the 2012 case of Smith v. Cain, the Court both restated and reaffirmed the Brady holding. Smith v. Cain, 132 S. Ct. 627 (2012).

In Smith v. Cain, Defendant Smith was charged with killing five people during an armed robbery. At trial, a witness identified Smith as the first gunman to come through the door. No other witnesses and no physical evidence implicated the defendant in the crime. After being convicted, the defendant obtained the notes of a detective who had worked on his case, which contained statements by the identification witness that conflicted with his testimony identifying Smith as a perpetrator. Smith alleged that the prosecution's failure to disclose the detective's notes violated Brady.

The Supreme Court of the United States agreed, finding that the witness's undisclosed statements alone undermined confidence in the defendant’s conviction. The Court held that the statements at issue were plainly material to the determination of the inmate's guilt, since the witness's testimony was the only evidence linking the inmate to the crime, and since the witness's undisclosed statements directly contradicted the witness's testimony at trial. The Court reversed the state trial court's judgment and remanded the case for further proceedings.

Defendant in Child Pornography Case Ordered to Pay Restitution to Child Depicted in One of His Images

Tue, 20 Mar 2012 16:00:00 -0500

Ricky Lee Daniel was convicted in the United States District Court for the Northern District of Georgia of possession of child pornography in violation of 18 U.S.C.S. §§ 2252A(a)(5)(B) and 2256(8)(A). United States v. McDaniel, 631 F.3d 1204 (2011). The district court ordered the defendant to pay restitution to a child depicted in one of the images, and defendant appealed.

A jury convicted McDaniel of possession of child pornography, finding that he possessed 600 or more images of child pornography. The district court sentenced him to 60 months of imprisonment, three years of supervised release, and ordered him to pay $12,700.00 restitution to "Vicky," a child depicted in one of the images. McDaniel appealed, asking whether 18 U.S.C. § 2259 requires a showing of proximate cause, and if so, whether the district court clearly erred in ordering restitution.
The victim, “Vicky”, had been notified by the National Center for Missing and Exploited Children when it was discovered that defendant's child pornography collection included an image of her being raped and abused by her father when she was 10 years old.

The Court of Appeals held that, “Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within. The end users of child pornography enable and support the continued production of child pornography. They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child's privacy by possessing their image. All of these harms stem directly from an individual's possession of child abuse images.” McDaniel at 1208.

The court found that the dissemination of child pornography certainly exacerbated the victim's harm by a continuing invasion of privacy and by providing the very market that led to the creation of the images in the first place. The court also found that § 2259 did require proximate causation and that defendant's conduct proximately caused the victim's losses. Each notification added to the trauma and intensified the victim's emotional issues. The Court of Appeals held that the district court did not err in finding that “Vicky” was a victim of defendant's possession of child pornography and that she was eligible for restitution.

Police Must Have Probable Cause that a Crime is Being Committed in Order to Seize a Vehicle While Waiting to Obtain a Search Warrant

Mon, 12 Mar 2012 09:30:00 -0500

Commonwealth of Pennsylvania v. Trayvon Nmn Joseph, 34 A.3d 855, was an appeal from a Judgment of Sentence in the Court of Common Pleas. Joseph appealed his convictions for persons not to possess, use, manufacture, control, sell, or transfer firearms, in violation of 18 Pa.C.S. § 6105(c)(2), and firearms not to be carried without a license, in violation of 18 Pa.C.S. § 6106(a)(1).

Appellant had been pulled over by a Pennsylvania State Trooper who claimed that there were four types of drug paraphernalia in appellant’s vehicle: (1) a number of air fresheners hanging from the rear view mirror; (2) a small burlap bag of potpourri on the dash near an air vent; (3) bars of soap on the back seat; and (4) a wrapped "blunt" cigar on the passenger seat. After returning to his vehicle to write out a warning card for appellant, the trooper ran a record check and found that appellant had a "significant drug history," including prior charges for possession and possession with intent to deliver. Based on this, the trooper told appellant he would detain the vehicle on the side of the road and apply for a warrant to search it. Defendant did not consent to a search, and left the scene with his car locked and running. The trooper called a tow truck to move appellant’s vehicle and when it arrived, conducted what he called an inventory search of the vehicle, discovering a loaded handgun under a jacket on the floor.

Appellant’s motion to suppress was denied by the trial court. The Appellate Court held that the trial court erred by ruling that the existence of reasonable suspicion justified the trooper's seizure of appellant's vehicle pending the submission of an application for a search warrant. The court held that the trial court erred in denying appellant's motion to suppress evidence obtained from his vehicle after its seizure without probable cause as the officer’s seizure of his vehicle during the course of the traffic stop was impermissible because it was not constitutionally justified.

The court concluded that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified based upon mere reasonable suspicion.

Fourth Amendment Protects Homes From Warrantless Drug Dog “Sniff Tests”

Fri, 09 Mar 2012 16:38:45 -0500

The Supreme Court of Florida has decided the case of Joelis Jardines, Petitioner, v. State of Florida, Respondent, No. SC08-2101, 2011 WL 1405080 (April 14, 2011).

In this matter, police conducted a warrantless "sniff test" by a drug detection dog at defendant's home and discovered live marijuana plants inside. The trial court granted defendant's motion to suppress, the district court reversed, but the Supreme Court stated that the warrantless "sniff test" that was conducted at the front door of the residence was an unreasonable government intrusion into the sanctity of the home. The court stated, “The United States Supreme Court has held that at the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Or, more succinctly, with few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no."

The court further found that the "sniff test" at issue was a sophisticated undertaking that was the end result of a sustained and coordinated effort by various law enforcement departments. On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence.

The court felt that if government agents could conduct a dog “sniff test” at a private residence without any prior evidentiary showing of wrongdoing, there would be nothing to prevent the agents from applying the procedure in an arbitrary and discriminatory manner, or based on whim and fancy, at the home of any citizen. Therefore, the warrantless "sniff test" that was conducted at the front door of Jardines’ residence was an unreasonable government intrusion and a violation of the Fourth Amendment of the United States Constitution.

Fifth Amendment Protects Defendant’s Refusal to Produce Encrypted Computer Files

Thu, 01 Mar 2012 09:00:00 -0500

In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011 UNITED STATES OF AMERICA, v. JOHN DOE, Appellant, 2012 WL 579433, Nos. 11–12268 & 11–15421, is a decision of the United States Court of Appeals, Eleventh Circuit (February 23, 2012) in an appeal of a judgment of civil contempt in the United States District Court for the Northern District of Florida.

“John Doe” was served with a subpoena duces tecum requiring him to appear before a Grand Jury in a child pornography investigation and produce the unencrypted contents on the hard drives of Doe's previously seized laptop computers and five external hard drives. Doe informed the United States Attorney that, when he appeared before the grand jury, he would invoke his Fifth Amendment privilege against self-incrimination and refuse to comply with the subpoena.

The U.S. Attorney immediately moved the district court for an order requiring Doe to show cause why Doe should not be held in civil contempt. Doe explained that he invoked his Fifth Amendment privilege against self-incrimination because the Government's use of the decrypted contents of the hard drives would constitute derivative use of his immunized testimony. The court rejected Doe's explanations, adjudged him in contempt of court, and ordered him incarcerated. Doe appealed the ruling.

The United States Court of Appeals, Eleventh Circuit, ruled in Doe’s favor, finding that the district court had erroneously concluded that Doe was not protected by the Fifth Amendment in his refusal to comply with the court order because, by decrypting the contents, he would be testifying that he, as opposed to some other person, placed the contents on the hard drive, encrypted the contents, and could retrieve and examine them whenever he wished. The Court held that even if the decryption and production of the contents of the hard drives themselves were not incriminatory, they were a “link in the chain of evidence” that was designed to lead to incriminating evidence, and this was sufficient to invoke the Fifth Amendment privilege.

Pennsylvania Spousal Privilege Against Testifying Applies Even to a “Collusive Marriage”

Wed, 29 Feb 2012 13:00:00 -0500

A jury convicted Appellant Lewis of tampering with public records or information, 18 Pa.C.S.A. § 4911. Ms. Lewis had worked as a Probation Officer for the Lebanon County Office of Adult Probation. In August 2007, Appellant started supervising the probation of Jeffrey Gardner, who was on electronic monitoring. In December 2007, while Appellant was supervising Mr. Gardneŕs probation, they began an intimate relationship and made plans to travel together to Atlantic City during the weekend of February 17, 2008. On February 12, 2008, Appellant released Mr. Gardner from electronic monitoring, eleven days ahead of schedule of his six-month period of court-ordered electronic monitoring. Part of Appellant́s duties required her to maintain case files on the probationers she was supervising and to make notations of their progress, plans, and whereabouts. Shortly before their planned trip to Atlantic City, Appellant wrote a note in Mr. Gardneŕs file stating he was visiting Atlantic City with his family, as the Appellant did not want anyone to know that she and Mr. Gardner were actually traveling together. Appellant left her job with the Lebanon County Office of Adult Probation and Parole on February 25, 2008.

Probation Officer Fertenbaugh then took over the supervision of Mr. Gardner. In March 2008, Ms. Fertenbaugh learned about the romantic relationship between Appellant and Mr. Gardner. Mr. Gardner came to the probation office where he admitted his relationship with Appellant. When asked, Appellant confirmed the truth of Mr. Garneŕs statements.

On March 28, 2008, the Commonwealth charged Appellant with tampering with public records or information and obstructing administration of law or other governmental function. Appellant and Mr. Gardner were married on June 17, 2008. Appellant filed an omnibus pre-trial motion to preclude the Commonwealth from calling Mr. Gardner to testify at trial, based on the Section 5913 spousal testimony privilege. The Commonwealth argued the Section 5913 spousal testimony privilege should not apply in this case because Appellant and Mr. Gardner married so Mr. Gardner would not have to testify as a witness against Appellant.

The trial court judge concluded that Section 5913 was unavailable to Mr. Gardner if he had married Appellant to avoid testifying against her. The trial court reasoned that a marriage timed even partly to prevent testimony was "collusive" under Pennsylvania law. Thus, the court barred Mr. Gardner from asserting the Section 5913 spousal testimony privilege at Appellant́s trial. The jury found the Appellant guilty of tampering with public records or information but not guilty of obstructing administration of law or other governmental function.

On appeal, the Appellant successfully argued that the trial court́s interpretation of Section 5913 ignored the unambiguous language of the statute and was inconsistent with the Pennsylvania rules of statutory construction. Notably, neither the statute nor the exceptions eliminate or limit the privilege for collusive marriages or pre-marriage events or actions. The statutory text of Section 5913 is clear in this instance, and any public policy concepts arguably implied in the statute are irrelevant. Thus, the Court refused to adopt the trial court́s rationale for creating an exception to the spousal testimony privilege for a "collusive" marriage on policy grounds and also rejected the trial court́s conclusions regarding the applicability of Section 5913 under the circumstances of this case.

Superior Court of Pennsylvania Rules that Prosecution Cannot Use a Defendant’s Silence to Prove That He is Guilty of Murder

Wed, 22 Feb 2012 10:30:00 -0500

The Superior Court of Pennsylvania reversed a Defendant’s homicide conviction in the case of Commonwealth of Pennsylvania v. Michael Molina, Appellant. Molina appealed from the judgment of sentence entered in the Court of Common Pleas of Allegheny County, Criminal Division (Pennsylvania), following his conviction for murder in the third degree and unlawful restraint. The victim in the case was a woman named Melissa Snodgrass.

On appeal, Molina raised one issue for review. He contended that the trial court committed reversible error when it permitted the Commonwealth, over objection, to reference his pre-arrest silence in response to police questioning as substantive evidence of his guilt. The prosecutor had discussed the fact that during the investigation of Snodgrass’ murder, the detective on the case asked Molina when he last saw Snodgrass. Molina initially told the detective a year and a half before; then moments later, he stated it had been approximately three months since he last saw Snodgrass. The detective testified that she asked Molina to come down to police headquarters so she could further interview him and he refused.

At closing argument, counsel for the Commonwealth commented on Molina's refusal to cooperate with the detective and asked "Why?". The court found it clear that the prosecutor deliberately exploited Molina’s silence by asking the jury to infer guilt from the fact that he refused to go to the police station to be interviewed. The court determined that the prejudice to Molina could not be considered de minimis and was not harmless. The fact that the jury was persuaded to acquit defendant of the most serious charges while convicting him of others did not rule out the possibility that the jury was not overwhelmed by the credibility of the testifying witnesses. Since the court could not be sure that the jury would have resolved the issue in the same manner absent the improper reference to Molina’s silence, it was not convinced beyond a reasonable doubt that the error did not contribute to the verdict. The court reversed the convictions and vacated the judgment of sentence. The court remanded the case to the trial court for a new trial.

Those accused of crimes are entitled to the protections of the Constitution of the United States. An experienced criminal defense attorney ensures a defendant’s rights are protected. If you have been charged with, or convicted of an offense, you still have constitutionally protected rights which the Law Offices of Marc Neff can protect. For a confidential consultation, please contact our office at 215-563-9800 or via email at marc@nefflawoffices.com.