Thursday, June 22, 2017

The Burglary, the Computer and Concealing or Destroying Evidence

The Burglary, the Computer and Concealing or Destroying Evidence

This post examines an opinion from the California Court of Appeal – Fourth District: People v. Pineda, 2017 WL 632823 (2017). The court begins the opinion by explaining that
Defendant and appellant Juan Ivan Pineda was convicted on multiple charges arising from his burglary of an apartment, his flight from the scene and subsequent apprehension by police officers. On appeal, Pineda argues there was insufficient evidence he possessed a concealed dirk or dagger within the meaning of Penal Code section 21310. In particular, Pineda argues there was insufficient evidence that the knife found in his possession, which folded, was in a locked position at the time he was apprehended.

Pineda also argues the prosecution did not produce substantial evidence he concealed or destroyed evidence, to wit: a computer he took during the burglary and threw into San Diego Bay during his flight from police officers. Because the computer was recovered and physically intact, he argues that at most he was guilty of the lesser included offense of attempted concealment or destruction of evidence and that the jury should have been instructed on that lesser offense.
People v. Pineda, supra.
This post only examines the second issue outlined above, i.e., concealing or destroying evidence.  People v. Pineda, supra.
The opinion goes on to explain how, and why, the prosecution arose:
On June 12, 2014, Coronado Police Officer Ryan Rose responded to a call reporting a suspicious person walking across lanes of traffic on State Route 75 carrying a concealed item under his shirt. Rose spotted defendant, who matched the description of the suspect. Defendant had his hands concealed in the front of his waistband, which led Rose to believe that defendant was carrying something under his shirt. Rose stopped his patrol car and got out. When Rose asked to speak to defendant, defendant responded by walking away at a `brisk pace.’ Defendant began running towards the beach as other police officers approached the scene. Defendant temporarily escaped the pursuing officers by scaling a gate and entering the residential community of Coronado Cays.

A laborer who was at work installing stones at a home in Coronado Cays near a boat dock spotted defendant swimming in San Diego Bay and watched defendant climb out of the bay, onto a dock. The laborer testified that the water defendant swam in was `kind of deep.’ Once on the dock, defendant began pulling items out of his waistband and dropping them into the water. Among the items the laborer saw defendant toss into the bay was a laptop computer, which defendant tossed about 10 to 15 feet into the water from the edge of the dock. Police officers arrived at the residence where the laborer was working and spotted defendant. They commanded defendant to stop, but he jumped back into the bay.

Defendant swam to another dock in an adjacent cay, climbed the dock, and entered the backyard of a nearby home where he was found and arrested. Rose arrived at the scene while defendant was being arrested. He saw that defendant had an open pocket knife in his pocket with the blade partially protruding through the bottom half of the pocket. At trial, Rose testified that the pocket knife was in a `fixed open position.’
People v. Pineda, supra.
The opinion goes on to explain that a
harbor patrol boat arrived at the scene where defendant dropped the items into the bay. Officers asked the laborer to show them the spot where defendant dropped the items into the water. A marker was placed at the approximate site where the items were dropped, and divers recovered a laptop computer. The computer had a sticker on it identifying the victim, her address and phone number. The computer was returned to the victim, but the computer no longer worked. The victim testified that her apartment was burglarized in the morning while she was out on a walk, the same morning defendant was arrested. The tread on boots defendant was wearing on the day of his arrest resembled footprints made in the sand outside the victim's apartment.
People v. Pineda, supra.
Since this post focuses on the second issue in Pineda’s appeal, it only briefly addresses the first issue he raised on appeal. The opinion begins its analysis of this issue by explaining that
Pineda argued that the prosecution (“the People”)
failed to produce evidence the pocket knife he was carrying was a dirk or dagger within the meaning of CaliforniaPenal Code § 21310.

When a defendant challenges the sufficiency of the evidence presented at trial, the appellate court must review the record `o determine whether it contains substantial evidence—i.e., evidence that is credible and of solid value—from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt.’ (People v. Green (1980) 27 Cal.3d 1, 55.) The reviewing court must `presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.’
(People v. Lindberg (2008) 45 Cal.4th 1, 27.)
People v. Pineda, supra.
The court goes on to explain that
[s]ection 21310 bars the carrying of a concealed `dirk or dagger.’ A pocket knife qualifies as a dirk or dagger under section 21310 `only if the blade of the knife is exposed and locked into position.’ (§ 16470; accord, In re George W. (1998) 68 Cal.App.4th 1208, 1214.)  In Castillopez, the court rejected the People's argument that a folding knife on which the blade is held in an open position by friction alone and may be closed by simply exerting pressure on the blade meets the statutory definition of a dirk or dagger. `[T]he essential difference between a nonlocking folding knife and a locking folding knife has been understood to be whether the exposed knife blade is immobile, thereby preventing accidental collapse while the knife is in use. [Citation.] We presume the Legislature was aware of this usage when it enacted the present version of [section 16470] in 1997. [Citation.] It follows that when the Legislature referred to blades ‘locked into position,’ it intended to refer to knives with blades rendered immobile, as by operation of a locking mechanism, rather than knives with blades that could be collapsed simply by folding the blade back into the handle.’ (Castillopez, supra, 63 Cal.4th at p. 331 (italics added).)

The only evidence the People produced to support the section 21310 charge was Rose's testimony that the knife was in a `fixed open position’ and photographs of the knife. In explaining what he meant by `fixed open position,’ Rose stated: `If you have a knife that folds open, that's a fixed open position.’ The photographs admitted into evidence show the knife in an open position. However, none of the photographs show any locking mechanism on the knife. Although one photograph shows a button on the lower side of the knife (exhibit 46), a second photograph of the interior mechanics of the knife (exhibit 48), appears to show that the button is not connected in any fashion to the blade in the open position.

Rose's testimony establishes no more than that the knife was a folding knife; it does not provide any evidence that the knife had a locking mechanism as required by Castillolopez. Likewise, the photographs of the knife admitted into evidence do not provide any evidence which shows the knife had a locking mechanism.

In sum, there is no evidence the knife found on Pineda was a dirk or dagger within the meaning of section 21310 and his conviction of that offense must be reversed.
People v. Pineda, supra.
The Court of Appeal then took up Pineda’s conviction for “destroying or concealing evidence” in violation of California Penal Code §135. People v. Pineda, supra. The opinion begins the court’s analysis of this issue by explaining that
Section 135 provides:  `A person who, knowing that any book, paper, record, instrument in writing, digital image, video recording owned by another, or other matter or thing, is about to be produced in evidence upon a trial, inquiry, or investigation, authorized by law, willfully destroys, erases, or conceals the same, with the intent to prevent it or its content from being produced, is guilty of a misdemeanor.’

Pineda contends his conviction for destroying or concealing evidence must be reversed because his effort to destroy or conceal the laptop computer he threw into the bay was unsuccessful. In People v. Hill (1997) 58 Cal.App.4th 1078 (Hill ), the court discussed criminal destruction or concealment of evidence. In Hill, a defendant, while being pursued by police, wadded up fraudulent traveler's checks and threw them out his car window. The police officer pursuing the defendant saw him throw the checks out the window, quickly recovered them and they were produced at trial. (Id. at pp. 1089–1090.) The court reversed the defendant's conviction for destruction or concealment of evidence. (Id. at p. 1092.) The court stated: `The purpose of section 135 is to prevent the obstruction of justice. [Citation.] The plain meaning of “destroy” is to ruin something completely and thereby render it beyond restoration or use. [Citation.] ‘Under this definition, if one destroys evidence, it necessarily becomes unavailable and cannot be produced. Conversely, if, despite one's efforts, the evidence is or can be restored and used, then, by definition, it has not been destroyed; rather, such efforts constitute an attempt: a direct, but ineffectual, act toward the commission of a crime.’ (Id. at p. 1089.)
People v. Pineda, supra.
The opinion goes on to explain that
[w]ith respect to what constitutes concealment, the court in Hill stated: `The word “conceal” simply means to hide or cover something from view. [Citation.] Section 135 proscribes concealing evidence ‘about to be produced in evidence upon any trial, inquiry, or investigation.’ Given its plain meaning, ‘conceal,’ in context, does not necessarily or reasonably suggest that a defendant must render evidence permanently unseen, or as defendant submits, unavailable. Rather successful concealment of evidence from a particular investigation is sufficient. [¶] Moreover, we must view the term in context and in light of the purpose of the statute. One can obstruct the administration of justice in varying degrees and in a variety of ways. Obviously, to permanently conceal evidence is a substantial obstruction of justice. To a lesser degree is any act of concealment that interferes with, impedes, frustrates, or unnecessarily prolongs a lawful search. [¶] “For example, a thief eludes the police and buries his booty in a neighbor's backyard. Police arrive and search him and his property but find nothing. The next day, a neighbor leads them to freshly tilled earth in his yard, and they dig up the stolen property. Has the thief violated the statute or merely attempted to do so? Given the ordinary meaning of ‘conceal,’ the purpose of the statute, and its applicability to any investigation, the thief has, in our view, violated the statute: his conduct successfully hid stolen property from view during the first search of him and his property and thereby impeded, frustrated, and prolonged an investigation of the theft. [¶] `It follows from our analysis, however, that where a thief does not interfere with, impede, frustrate, or prolong a lawful investigation, for example, where a thief is interrupted while concealing evidence or where the police watch him conceal it, he has not successfully hidden the evidence or appreciably affected an investigation and thereby obstructed justice. He has merely tried to do so. Thus, his conduct constitutes an attempt to violate the statute by concealment.’ (Hill, supra, 58 Cal.App.4th at p. 1090 (italics added.)
People v. Pineda, supra.
The Court of Appeal then articulated its “holding,” its decision on this issue:
Pineda maintains his act of throwing the laptop into the bay was at best an act of attempted concealment because, like the traveler's checks in Hill, a witness observed defendant disposing of the computer and the police were quickly able to retrieve it. We disagree. Unlike the traveler's checks in Hill, which were abandoned in plain view in the midst of a police pursuit, the laptop was tossed into water deep enough for boats to navigate. Though there is nothing in the record regarding the opacity of the water, the fact that officers asked a civilian witness where the items were tossed into the ocean indicates they did not know the precise location of the computer. The marker placed over the site where the witness said the items were tossed indicates that the computer was not conspicuously visible from above the water line. In short, Pineda's attempt to conceal the computer went well beyond an attempt and in fact `impeded, frustrated and prolonged’ the investigation of the burglary.
People v. Pineda, supra.
The Court of Appeal then articulated its holding on the issues in the case:
Because we must reverse Pineda's conviction on count 2, violation of section 21310, we need not discuss Pineda's contention that the abstract of judgment with respect to count 2 is erroneous. `Under principles of double jeopardy, our reversal due to insufficiency of evidence bars retrial for the offense.’ (Hill, supra, 58 Cal.App.4th at p. 1091, fn. 11.) Thus, the trial court will, on remand, be required to resentence Pineda and, in any event, issue an amended abstract of judgment reflecting his new sentence.

DISPOSITION
Pineda's conviction on count 2, violation of section 21310, is reversed and remanded for further proceedings consistent with the views expressed in our opinion. In all other respects, the judgment of conviction is affirmed.
People v. Pineda, supra.


Wednesday, June 21, 2017

“Surreptitiously Photographing or Videotaping a Person’s Clothed Anatomy”

This post examines a recent opinion from the Appeals Court of Massachusetts – Nantucket: Commonwealth v. Nascimento, 2017 WL 2467790 (2017). The Court begins the opinion by explaining that
[w]e consider here whether Massachusetts General Laws 272 § 105, as amended by St. 2014, c. 43, in response to Commonwealth v. Robertson, 467 Mass. 371, 5 N.E.3d 522 (2014), protects people in public places. The defendant argues that, although the Legislature clearly intended that the amended statute apply to public places, it failed to effectuate its intent. We disagree, and affirm the defendant's conviction.
Commonwealth v. Nascimento, supra.
The opinion goes on to explain that
[t]he defendant was charged with, and convicted of, violating General Laws 272 § 105, for using his cellphone to videotape surreptitiously two teenage girls under their sundresses while traveling on the ferry to Nantucket. The conduct took place on July 12, 2015, more than a year after the Legislature had—in response to public outcry over the Robertson decision—amended the statute to add the following language, portions of which we have highlighted because they are our focus here:

`Whoever wilfully photographs, videotapes or electronically surveils, with the intent to secretly conduct or hide such activity, the sexual or other intimate parts of a person under or around the person's clothing to view or attempt to view the person's sexual or other intimate parts when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public, and without the person's knowledge and consent, shall be punished . . .’

General Laws 272 § 105(b).

‘Sexual or other intimate parts,’ [are defined as] human genitals, buttocks, pubic area or female breast below a point immediately above the tip of the areola, whether naked or covered by clothing or undergarments.

General Laws 272 § 105(a).

In essence, the defendant argues that because no reasonable person would believe his or her clothed anatomy would not be visible in a public place, the statute must be limited to non-public spaces.
Commonwealth v. Nascimento, supra.
The Appeals Court goes on to explain that the
amended language came about, as we noted above, in response to public reaction to Robertson, supra, in which the Supreme Judicial Court reversed the conviction of a man who had surreptitiously videotaped and photographed the clothed crotch areas of women seated across from him on the MBTA trolley. Robertson involved the earlier version of the statute, which applied only to persons who were photographed when `nude or partially nude.’ Id. at 375, 5 N.E.3d 522. Because the victims in that case were neither nude nor partially nude, the Supreme Judicial Court concluded that the defendant's conduct was not covered by the statute. Ibid. Deciding as it did, the court did not reach Robertson's additional argument that the statute did not apply to conduct in public places.

Reaction to the Robertson decision was negative, swift, and strong. The Legislature reacted immediately by amending the statute to cover the type of conduct that had occurred in Robertson; namely, the surreptitious photographing or videotaping of a person's clothed private anatomy even when in public. The defendant acknowledges that the Legislature clearly intended to amend the statute to cover the conduct at issue here.
Commonwealth v. Nascimento, supra.
The Appeals Court went on to explain its analysis of the issue in this case, explaining that
[w]hat remains is to decide whether the statutory amendment effectuates that legislative intent. We believe it does. On its face, the amendment is unlimited as to location, referring neither to public nor private spaces. Instead, the amended statute applies `when a reasonable person would believe that the person's sexual or other intimate parts would not be visible to the public.’ The word `when’ refers to a point in time and, although location certainly is a factor to be considered in assessing what an objectively reasonable expectation would be at that particular moment, it is neither the only factor nor is it necessarily dispositive. Likewise, a person's state of dress or undress is a factor to be considered, but it too is not dispositive. A person does not lose all reasonable expectation of privacy in his or her covered `sexual or intimate parts’ simply by being in public. Instead, that expectation must be measured against current mores, taking into account the totality of the circumstances. So viewed, it is an `eminently reasonable’ proposition `that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt.’ Robertson, supra at 380, 5 N.E.3d 522. The same is true for teenage girls riding the ferry to Nantucket.

            Judgment affirmed.
Commonwealth v. Nascimento, supra. 

Monday, June 19, 2017

The Network Investigative Technique, the Search Warrant and the Exclusionary Rule

This post examines an opinion from the U.S. District Court for the Northern District of Texas – Dallas Division: U.S. v. Pawlak, 2017 WL 661371 (2017). The District Court Judge who has the case began the opinion by explaining that
[t]he instant motions to suppress and dismiss the indictment challenge the Federal Bureau of Investigation's (`FBI's’) seizure of a computer server that hosted a child pornography website called `Playpen,’ and the FBI's ensuing operation of the website on a government server. 
U.S. v. Pawlak, supra.
The opinion goes on to explain that
[t]he facts of this case that are material to the court's decision are undisputed.2 In early 2015, acting on a tip from a foreign law enforcement agency, the FBI located and seized a computer server that contained a child pornography website called Playpen. Playpen existed as a hidden website on the Tor Network, also known as the dark web. Through sophisticated encryption, the Tor Network anonymizes and actively conceals identifying information about website users, including a user's true Internet Protocol (`IP’) address. To access Playpen, it was necessary for users to know the website's address on the Tor Network. Users could not, for example, stumble upon Playpen while browsing the Internet. Once on the Playpen website, users logged in with dedicated usernames and passwords. Playpen offered users various forums for different child pornography topics, including `Incest’ and `Toddlers.’ Inside each forum were discussion posts, images, and videos related to the particular topic.

Because the Tor Network anonymizes its users, the FBI could not uncover who was operating or accessing the Playpen website through normal investigative techniques. The FBI devised a plan to investigate Playpen's users, who would normally be untraceable. The plan called for the FBI to copy the Playpen server and continue to operate the Playpen website on the FBI server. While operating the website, the FBI would use a network investigative technique (`NIT’) that allowed it to retrieve information from the computers of the persons who logged in to the Playpen website. The NIT—computer code developed by the FBI—would be attached to various files uploaded to Playpen. When the website user downloaded a file, the NIT would force the user's computer to send to the FBI the user's actual IP address and other identifying information. With the actual IP address, the FBI could identify and locate the user.
U.S. v. Pawlak, supra.
The judge goes on to explain that
[a]cting according to the plan, the FBI copied the Playpen server and brought it to a government facility located in the Eastern District of Virginia. On February 20, 2015 the FBI applied for and obtained from a United States Magistrate Judge of the Eastern District of Virginia a search warrant (the `NIT Warrant]) authorizing the FBI to deploy the NIT program for a period of up to 30 days. The FBI also obtained from a United States District Judge a Title III order authorizing the FBI to intercept private messages and private chats in real time on the Playpen website. But the government acknowledges that Pawlak's username did not engage in private messages or chats during the period of time the FBI monitored communications under the Title III order.

On or about March 4, 2015, Pawlak accessed the Internet from his residence using a laptop computer that his employer, Sigma Cubed, had issued. Using the Tor Network, he logged in to the Playpen website and clicked on a post entitled, `My daughter 5yo-photo 2015.’ As the content from this post downloaded onto the laptop, the NIT computer code was sent automatically. The NIT relayed Pawlak's IP address and other information back to the FBI in the Eastern District of Virginia.

Based on this information, the FBI issued a subpoena to AT & T, the Internet service provider connected with Pawlak's IP address, and learned that Pawlak's wife was the account holder associated with the address. The FBI obtained a warrant to search Pawlak's residence, but it did not find computers containing child pornography. While executing the warrant, agents called Pawlak's wife's cell phone, and Pawlak answered. He volunteered the details of how he accessed and viewed child pornography. Thereafter, the FBI contacted Pawlak's current employer, Independence Oil Field Chemicals, and his previous employer, Sigma Cubed, to request access to the work computers issued to him. The companies granted permission, and upon searching these computers, the FBI found hundreds of images of child pornography.
U.S. v. Pawlak, supra.
The opinion then explains how this prosecution arose:
The grand jury later indicted Pawlak for the offenses of receipt of child pornography, in violation of 18 U.S. Code §2252A(a)(2)(A), and possession of child pornography involving a prepubescent minor, in violation of 18 U.S. Code § 2252A(a)(5)(B). Pawlak moves to suppress all information obtained by the NIT that was authorized pursuant to the application for Title III interception on or about February 20, 2015 in the Eastern District of Virginia and the application for the search of computers that access the Playpen website on or about February 20, 2015. He also moves to dismiss the indictment. The government opposes both motions.
U.S. v. Pawlak, supra.  This post only examines the argument Pawlak made in his motion to suppress, which was the issue the Judge addressed first.
The opinion explains that Pawlak moved to suppress the evidence “hat he alleges was collected in violation of the Fourth Amendment.” U.S. v. Pawlak, supra.  The Judge went on to explain that the
general rule under the Fourth Amendment is that searches of private property are reasonable if conducted pursuant to a valid warrant issued upon probable cause.  See, e.g., Katzv. United States, 389 U.S. 347, 357(1967). `A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional.’ United States v. Waldrop, 404 F.3d 365, 368 (U.S. Court of Appeals for the 5th Circuit 2005) (citing United States v. Guerrero–Barajas, 240 F.3d 428, 432 (5th Cir. 2001)). `The exclusionary rule prohibits introduction at trial of evidence obtained as the result of an illegal search or seizure' United States v. Runyan, 275 F.3d 449, 466 (5th Cir. 2001). The exclusionary rule also `encompass[es] evidence that is the indirect product or ‘fruit’ of unlawful police conduct.’ Id. (citing Wong Sun v. United States, 371 U.S. 471, 488 (1963)).
U.S. v. Pawlak, supra. 
The judge then began his analysis of Pawlak’s argument that the search violated the Fourth Amendment:
The court considers first the legality of the search. Pawlak contends that the search was unlawful because it exceeded the scope of the NIT Warrant. Pawlak maintains that the warrant `states that the property to be seized—the data including the identifiers from the Activating Computers—was . . . located in the Eastern District of Virginia,’ and authorized a search only of `one FBI computer server located in the Eastern District of Virginia hosting child pornography.’D. Br. 13–14. This is a mischaracterization of the NIT Warrant.

The NIT Warrant includes a standard court form that incorporates Attachments A and B. Although the form states that the property is located in the Eastern District of Virginia, it also specifically cites, and implicitly incorporates, Attachments A and B. Attachment A, entitled `Place to be Searched,’ provides that the NIT warrant authorizes the use of an NIT to be deployed on the computer server described in Attachment A to obtain information described in Attachment B from the activating computers described in Attachment A. Attachment A identifies the computer server as `the server operating the Tor network child pornography website referred to herein as the TARGET WEBSITE, as identified by its URL [website redacted by the court] which will be located at a government facility in the Eastern District of Virginia.` Gov't Br. Attach. A at 4. Attachment A identifies the `[t]he activating computers’ as “those of any user or administrator who logs into the TARGET WEBSITE by entering a username and password.’ Id. Attachment B, entitled `Information to be Seized,’ provides that specific information is to be seized `[f]rom any ‘activating’ computer described in Attachment A.’ Gov't Br. Attach. B at 5. The NIT Warrant therefore authorizes the search and seizure of the server operating the Tor Network child pornography website, which is located at a government facility in the Eastern District of Virginia, and the activating  , wherever located. It is not limited in scope to one FBI computer server located in the Eastern District of Virginia.
U.S. v. Pawlak, supra. 
The District Judge then takes up yet another Fourth Amendment argument Pawlak made in his appeal, i.e., “Pawlak also challenges the validity of the NIT Warrant on the ground that it was an improper general warrant.” U.S. v. Pawlak, supra.  The District Court Judge began his analysis of this argument by explaining that
`[u]nder the Fourth Amendment, `no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’ U.S. Const. amend. IV. `Because indiscriminate searches and seizures conducted under the authority of ‘general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment, that Amendment requires that the scope of every authorized search be particularly described.’ Walter v. United States, 447 U.S. 649, 657, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) (internal quotation marks and citation omitted). `The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another.’ Marron v. United States, 275 U.S. 192, 196 (1927).

In other words, the Fourth Amendment proscribes `issuance of general warrants allowing officials to burrow through a person's possessions looking for any evidence of a crime.’ United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (citing  Andresenv. Maryland, 427 U.S. 463, 480 (1976)). For example, in United States v. Quinlan, 149 F.3d 1179  (5th Cir. 1998) (per curiam) (unpublished table decision), the panel held that a warrant was general where it authorized seizure of `property that constitutes evidence of the commission of a criminal offense and/or contraband, the fruits of a crime, and/or things criminally possessed.’ Id. at *1.
U.S. v. Pawlak, supra. 
The judge then began winding up his analysis of this particular argument, explaining that
Pawlak contends that the NIT Warrant was a general warrant because it `did not specify or identify any particular Activating Computer or router/modem the Government wished to search.’ D. Br. 15. The NIT Warrant identified the `Place to be Searched’ as the computer server operating the Tor network child pornography website, to be located at a government facility in the Eastern District of Virginia, and `activating computers,’ that is, computers `of any user or administrator who logs into the [Playpen website] by entering a username and password.’ Gov't Br. Attach. A at 4. Under the heading `Information to be Seized,’ the NIT Warrant authorized the seizure of seven specific categories of information, including `the “activating” computer's actual IP address.] Id. at 5.

The court concludes that the NIT Warrant was not a general warrant. The NIT Warrant limited the search to only the host server for the Playpen website, to be located at a government facility in the Eastern District of Virginia, and to defined `activating computers,’ that is, computers `of any user or administrator who logs into [the Playpen website] by entering a username and password.’ Gov't Br. Attach. A at 4. Because the magistrate judge found that the information to be seized from the server and activating computers would be evidence of multiple violations of federal child pornography laws, the warrant was not broader than necessary to uncover evidence of criminal activity. See, e.g. ,United States v. Matish, 193 F.Supp.3d 585, 609 (E.D. Va. 2016) (`[T]here existed a fair probability that anyone accessing Playpen possessed the intent to view and trade child pornography.’).
U.S. v. Pawlak, supra. 
For these and other reasons, the court denied Pawlak’s motion to suppress. U.S. v. Pawlak, supra. 


Saturday, June 17, 2017

Identity Theft, Circumstantial Evidence and Forgery

This post examines an opinion from the Court of Appeals of Ohio – Eleventh District, Portage County: State v. DeGenero, 2017 WL 690685 (2017).  The Court of Appeals begins the opinion by explaining that
Devon DeGenero appeals his conviction in the Portage County Court of Common Pleas on one count of identity theft and three counts of forgery. As to all four counts, he asserts the state's evidence was insufficient to establish all elements of the offenses. For the following reasons, we affirm his conviction.
State v. DeGenero, supra.
The court goes on to explain how and why the prosecution arose:
Appellant's grandmother, Lucy Helen Aliff, died on March 1, 2013. Three days later, a credit card application in her name was submitted over the internet with the GE Capital Retail Bank. The application contained Lucy's correct full name and social security number. The bank immediately approved the application and an account was opened in Lucy's name.

On the same day the application was submitted, appellant was designated as an authorized user of the credit card. At some point, a credit card was issued to him. However, he did not try to use the card during the remainder of 2013. In May 2014, the bank was again contacted over the internet, and appellant's girlfriend, Trista McQuerry, was designated as an authorized user of Lucy's card.

On June 6, 2014, appellant entered a Dollar General store in Windham, Portage County, Ohio, and attempted to use the credit card to purchase $500 of credit on a separate prepaid credit card. Since Dollar General had a policy forbidding this type of purchase, the cashier and the store manager refused to go forward with the transaction. Moreover, since the store manager had prior dealings with appellant and McQuerry, she instructed the cashier to enter the numbers on appellant's card into the store's verification system. In response, the system indicated that the credit card was in Lucy's name. As a result, the manager asked appellant for identification, but he stated that he did not have one at that time.

The store manager left the `check-out’ area of the building and went into her private office, where she telephoned the Windham police. While the manager was gone, appellant decided to purchase a prepaid phone instead of the prepaid credit card. Since the cost of the prepaid phone was less than $10, the cashier allowed appellant to charge the item on Lucy's credit card. As he was leaving the store, appellant threw the receipt and the packaging for the prepaid phone into a garbage can, which enabled the store manager to retrieve them.

A detective from the Windham police department arrived at the store a few minutes after appellant and McQuerry had departed. After hearing the store manager's statement of the facts and obtaining the receipt and packaging from her, the detective drove around the general vicinity and quickly found him walking with McQuerry near an abandoned drive-through. Upon stopping appellant, the detective asked him about his use of the credit card. Appellant replied that the card was in his grandmother's name and that he was an authorized user. He also gave the detective an alleged phone number for his grandmother, encouraging the detective to call her to verify his authority to use the card. In light of appellant's assertions, the detective allowed him to leave.

As part of her ensuing investigation, the detective telephoned the number provided by appellant and left a message on an answering machine. When she did not receive a call back, the detective did research on the internet and found the obituary for appellant's grandmother. As a result, the detective contacted the bank that had issued the card, informing an employee of the bank's fraud unit of the situation. Upon conducting its own investigation, the bank concluded that Lucy Aliff was deceased when the credit card was approved; accordingly, the card was canceled on June 13, 2014.

During the period between the Dollar General incident and the subsequent date the bank was told of the potential fraud, appellant made a series of purchases on the credit card at a convenient food store in Windham. In each instance, he executed or approved a credit slip documenting the transaction.
State v. DeGenero, supra.
The opinion goes on to explain that
[a]s part of her ensuing investigation, the detective telephoned the number provided by appellant and left a message on an answering machine. When she did not receive a call back, the detective did research on the internet and found the obituary for appellant's grandmother. As a result, the detective contacted the bank that had issued the card, informing an employee of the bank's fraud unit of the situation. Upon conducting its own investigation, the bank concluded that Lucy Aliff was deceased when the credit card was approved; accordingly, the card was canceled on June 13, 2014.

During the period between the Dollar General incident and the subsequent date the bank was told of the potential fraud, appellant made a series of purchases on the credit card at a convenient food store in Windham. In each instance, he executed or approved a credit slip documenting the transaction.
State v. DeGenero, supra.
The Court of Appeals then explained how the case was resolved:
In October 2014, appellant was indicted on one count of identity theft and three counts of forgery. The `identity’ count was predicated upon the use of Lucy Aliff's name and social security number to procure the credit card after her death. The forgery counts were based upon appellant's use of the credit card to make purchases at Dollar General and the convenience store on June 6 & 7, 2014.

Due to the pendency of other criminal charges against appellant, his trial on the credit card charges was delayed until January 2016, when a one-day bench trial was held. In addition to presenting the testimony of the Dollar General store manager, the police detective, and the bank's fraud investigator, the state also introduced tapes of surveillance cameras which recorded appellant's action in the Dollar General store and the convenience store. The purpose of the surveillance tapes was to establish his use of the credit to make the purchases. Appellant did not present any witnesses in defense.

At the close of the evidence, the trial court found appellant guilty of all four charges. After holding a separate sentencing hearing, the court ordered him to serve a one-year prison term on each charge. The trial court further ordered that the four terms were to run concurrently, but would not begin to run until appellant finished the prison term imposed in the other criminal action against him.
State v. DeGenero, supra.
The court then takes up the only issue DeGenero raised in his appeal:
[i]n appealing his conviction, appellant asserts one assignment of error for our review:
`The evidence was insufficient to sustain convictions in this case.’

In regard to the `identity theft’ charge, appellant argues that the trial court erred in finding him guilty because the state did not introduce any evidence establishing that he was the person who submitted the application for the credit card. Specifically, he notes that the state failed to present any evidence as to the location of the computer from which the application was submitted. Concerning the forgery charges, appellant contends that his mere use of the credit card was not legally sufficient because he was an authorized user of the card and the state did not prove that he was actually aware of his grandmother's death when he made purchases with the card.
State v. DeGenero, supra.
The court then explained that
`[r]aising the question of whether the evidence is legally sufficient to support the * * * verdict as a matter of law invokes a due process concern.’ State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing such a challenge, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S.307. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113.

The crime of identity fraud is defined in Ohio Revised Code § 2913.49(B), which forbids a person from using, obtaining, or possessing another individual's personal identifying information with the intent to `[h]old the person out to be the other person.’ A person's `personal identifying information’ includes her social security number. Ohio Revised Code 2913.49(A).
State v. DeGenero, supra.
The court goes on to explain that
[a]ppellant claims that there was no direct evidence proving that he was the person who employed his deceased grandmother's social security number to obtain the credit card in her name. While his assertion as to the lack of direct evidence is correct, the record shows that there is sufficient circumstantial evidence from which a rational trier of fact could infer it was him who submitted the credit card application.

 ‘Circumstantial evidence * * * is proof of facts or circumstances by direct evidence from which (the fact finder) may reasonably infer other related facts which naturally and logically follow according to the common experience of mankind.’  State v. Blankenship (Sept. 21, 1994), 9th Dist. No. 2815, 1994 WL 510464. It is true that circumstantial evidence has the same probative value as direct evidence and the state need not disprove reasonable theories of innocence. See State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus. Nonetheless, the state can establish facts through circumstantial evidence only insofar as reasonable inferences can be drawn from that evidence. Inferences to be drawn from circumstantial evidence are unreasonable or speculative if they are not supported by the surrounding facts in evidence. State v. Thomas, 1st Dist. No. C–010724, at ¶17, 2002-Ohio-7333, 2002 WL 31894850.

`The sufficiency of circumstantial evidence to prove a fact or to prove guilt depends, among other things, on whether reason and common sense lead us from the facts proved by real or direct evidence to the fact sought to be proved. * * * [W]hen the connection is so weak or attenuated that no reasonable mind could find proof beyond a reasonable doubt, * * * the proof is insufficient as a matter of law to overcome the presumption of innocence.’ State v. Bentz (1981), 2 Ohio App.3d 352, 355, fn.6, 2 Ohio B. 408, 442 N.E.2d 90; see alsoState v. Griffin (1979), 13 Ohio App.3d 376, 377–378, 13 Ohio B. 458, 469 N.E.2d 1329.’ State v. Rohr–George, 9th Dist. Summit No. 23019, 2007-Ohio-1264, 2007 WL 841024, ¶ 21–22.
State v. DeGenero, supra.
The opinion goes on to point out that
 [i]n reliance upon circumstantial evidence, Ohio courts have concluded an accused's unexplained possession of recently stolen property allows for a permissive inference that he is guilty of either theft or burglary. See, e.g., State v. Brown, 10th Dist. Franklin No. 05AP-601, 2006-Ohio-2307, 2006 WL 1280895, ¶ 11. The circumstantial evidence in this case supports a similar inference. That is, given the circumstances in which the application for the credit card was submitted, appellant's subsequent possession of the card allows for the logical inference that he used his grandmother's social security number to obtain the card.
State v. DeGenero, supra.
The court then explains that
First, the application for the card was made within three days of her death. Second, appellant was designated as an authorized user of this card on the same day the application was submitted. Third, he had maintained possession of the card for over a year before he tried to use it. Fourth, when the police detective asked appellant about his use of the card, he specifically responded that his use was permissible because he was an authorized user.

Under appellant's theory of the case, if he did not submit the application in question, this must mean that another person was responsible for its submission. But, given that Lucy Aliff was already deceased and appellant was the sole person named as an authorized user when the account was created, this would mean that the second person engaged in identify fraud solely for appellant's benefit. This theory or possible inference does not comport with common sense. Instead, the only logical inference is that appellant himself was responsible for the application's submission.

 Appellant argues that, since McQuerry was also named as an authorized user of the card, there is a 50/50 chance that she submitted the application. This point might be persuasive if she was given that designation at the same time appellant was. Yet, there is no dispute that she did not become an authorized user until one year after the creation of the account. Thus, when the credit card was first issued, appellant was the sole person to benefit.
State v. DeGenero, supra.
The opinion then explains that
[n]otwithstanding the lack of direct evidence regarding the location of the computer used to submit the application, the circumstantial evidence supports the finding of guilt for identity theft.

In relation to the three forgery counts, appellant was convicted of Ohio Revised Code 2913.31(A)(3), which provides: `No person, with purpose to defraud, or knowing that the person is facilitating a fraud, shall * * * [u]tter, or possess with purpose to utter, any writing that the person knows to have been forged.’ The term `utter’ means `to issue, publish, transfer, use, put or send into circulation, deliver, or display.’ Ohio Revised Code 2913.01(H).

Appellant asserts that, since he was an authorized user of the credit card, no rational trier of fact could find that he had purpose to defraud the bank by making the charges at Dollar General and the convenience store. But this assertion is dependent upon his status as a legitimate authorized user. Given the fair conclusion that appellant engaged in identity theft to obtain the credit card and named himself an authorized user, his status was not legitimate. Thus, purpose to defraud was proven.

Appellant has failed to demonstrate error. Accordingly, his sole assignment of error lacks merit, and the judgment of the Portage County Court of Common Pleas is affirmed.
State v. DeGenero, supra.