Wednesday, January 25, 2012

The Use of a Peer-to-Peer File Sharing Program and Enhancement Under the Federal Sentence Guidelines

by
Mark D. Hosken, Supervisory Assistant Federal Public Defender

The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).]

What is distribution? Any act, including possession with intent to distribute...., related to the transfer of material involving the sexual exploitation of a minor. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for pubic viewing. [USSG § 2G2.2 comment, note 1.]

What is receipt for a thing of value? Any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. Thing of value means anything of valuable consideration. [USSG § 2G2.2 comment, note 1.]

Frequently, sentencing courts apply the five level enhancement to those individuals utilizing peer-to-peer file sharing programs such as LimeWire, FrostWire, Kazaa, or Shareaza to download contraband images. Those courts reason once an individual installs a file sharing program it is configured to allow others to download the defendant’s collection of child pornography stored in a shared folder. The shared folder is a repository for the illegal images which others access and download. The conclusion being the defendant distributed child pornography with the expectation he would receive a thing of value – additional child pornography – from other peers.

This enhancement is applied in those situations when the defendant admits use of a file sharing program. Rarely is the government required to prove the defendant was proficient or knowledgeable in the settings found in the installation of the peer to peer program. Nor, is the government required to establish transfer of something of value other than the mere existence of the file sharing application. The discovery of the program with a shared folder is usually sufficient for the five level enhancement.
Recently, a panel of the Eleventh Circuit struck down the application of the five level enhancement finding the record did not support the conclusion that the defendant distributed child pornography for receipt, or expectation of receipt of a thing of value.

In United States v. Spriggs, ____ F.3d ____, 2012 WL 48016 (11th Cir., January 10, 2012), the defendant was convicted of receiving child pornography. Spriggs downloaded the images through a file sharing program, Shareaza. This peer to peer program provided for reciprocal sharing. Others could access and download files from Spriggs’ shared folder. The majority of Spriggs’ collection of contraband images was located in this shared folder. The record supported a finding that Spriggs knew Shareaza enabled others to access files on his computer. Similarly, Spriggs admitted he used the program to download and upload files.

The panel determined the expectation of receiving a thing of value must be contextual. The use of a file sharing program enables free access to files. The files are free. There is no sharing for valuable consideration as required under the Guidelines. Without proof that Spriggs and another user specifically agreed to share their files on a return promise to share files, there was no transaction conducted for valuable consideration.

Notwithstanding Spriggs’ plea to receiving child pornography and his use of a peer to peer file sharing program, the majority of the contraband images found in the shared folder, and his use of the program to download and upload files, there was insufficient evidence to support the five level enhancement for receipt, or expectation of receipt, of a thing of value.

The significance of this decision is the rejection of the enhancement for simply using a peer to peer file sharing program. Some sentencing courts previously considered the use of a file sharing program constituted bartering for something of value-more contraband images. Here, the panel in Spriggs specifically rejected that application. Moreover, the additional facts present in Spriggs (admissions of the use of shared folders and the distribution and receipt of contraband images) were not indicia of proof of sharing for valuable consideration. Simply put, the Guidelines’ enhancement requires something more.

Tuesday, January 3, 2012

Prospective Juror's Knowledge of Defendant's Reputation Potentially More Important Than Knowledge of the Crime Charged

Do you think it might be wrong to have on the jury someone who has heard of the defendant and 'knows' he's a bad guy? Turns out, you're probably right.

The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a defendant must testify on his own behalf, for example, they might be able to be fair and impartial if we tell them they are wrong. In any event, we're going to have to take their word for it if they say they can set that view aside. Likewise, if the juror has heard specific claims regarding the proof of the crime in question, well, the whole trial is about the proof being brought before the jury, and if a juror says they can ignore other rumored evidence, we're probably going to have to take their word for it, at least in terms of challenges for cause, if they say that can forget about what they heard. However, what if a potential juror has heard about the defendant's general character or reputation? This is not something which will be countered at trial. For the most part it probably won't come up.

In other words, a prospective juror who has heard negative things about the defendant which are outside of the normal proof which we can expect to see at trial presents a special problem. It's not a matter of informing the juror that they are wrong about the law, and asking whether they can accept the law as explained by the court. It's not a matter of the juror expecting certain proof at trial, which we can ask them to set aside. It's a question of negative facts about the defendant which in all likelihood will not be answered or even talked about at trial. These concerns require a more exacting expurgatory oath than is typically required. In a case won by Mary Davison at the Third Department, that court said:

"Moreover, when the prospective juror's bias is based not upon a preexisting opinion as to the defendant's guilt of the crimes charged, but upon the defendant's over-all reputation or prior bad acts, "the evidence at trial might not address the basis of the juror's impression and thus may not alter this impression" (People v Torpey, 63 NY2d 361, 368 [1984]; accord People v Johnson, 94 NY2d 600, 614 [2000]). Under such circumstances, "'the test for whether [the juror's] bias has been overcome by declarations is even stricter than where the juror has expressed an opinion as to the defendant's guilt . . . [T]he prospective juror should be dismissed if there appears to be any possibility that his [or her] impressions . . . might influence [the] verdict'" (People vJohnson, 94 NY2d at 614, quoting People v Torpey, 63 NY2d at 368)."

(People v Wlasiuk,#102275 decided December 29, 2011).

Now, such issues might seem fairly uncommon, but when a potential juror indicates that he has heard of the crime through media coverage, it is worth the time to inquire whether that potential juror has also heard of related background information on the defendant. It is not uncommon for news coverage to review previous crimes the defendant got away with while building up the presumption of guilt as to the current one. If the relevant press coverage of a crime includes, say A) the defendant confessed; B) the defendant's DNA was found at the scene; C) the defendant is known for beating up his ex-girlfriends, it might well be C which presents the most promising avenue for voir dire.

You don't have to be a famous mobster to qualify.

NOTE - The court also noted that a for-cause challenge is possible even after a juror has been sworn: "Once a juror has been sworn, peremptory challenges are no longer available; a challenge for cause is permissible, but only before the first witness is sworn at trial and only "upon a ground not known to the challenging party" before the juror was sworn (CPL 270.15 [4]; see People v Harris, 57 NY2d 335, 349-350 [1982], cert denied 460 US 1047 [1983])."

Monday, January 2, 2012

Valid Waiver of Right To Appeal Held Not To Encompass Denial of Youthful Offender Status Not Mentioned at Waiver

In People v Anderson ( 2011 NY Slip Op 09364 [4th Dept 12/23/11]), after holding the that there was a valid waiver of appeal, the Appellate Division, Fourth Department held that
We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy. Under those circumstances, we conclude that defendant did not knowingly waive his right to appeal with respect to Supreme Court's denial of the request by defendant for youthful offender status at sentencing (see generally People v McCarthy, 83 AD3d 1533, lv denied 17 NY3d 819; People v Fehr, 303 AD2d 1039, lv denied 100 NY2d 538; People v Hendricks, 270 AD2d 944).

The Court then rejected the defendant's contention that the court abused its discretion in denying his request for youthful offender status and declined to exercise our interest of justice jurisdiction to adjudicate him a youthful offender.

The Issuance of an Appearance Ticket Doesn't Not Justify a Search "Incident to Arrest"

A pre-requisite of a valid search incident to arrest, is an arrest. "If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065)." People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container ordinance and had no intention of performing a custodial arrest, but defendant nevertheless was searched, the search cannot be justified as a search incident to a lawful arrest.

Bullcoming v New Mexico (131 SCt 2705) Applied By the Fourth Department

In recent years, the application of the right to confrontation in the context of laboratory or DNA test evidence has been the subject of much litigation at the United States Supreme Court

In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where the analyst did not testify. The Court rejected the ideas that the right to confrontation only applied when the evidence accused someone of a crime or didn’t apply to scientific tests, noting that crime labs have provided unreliable evidence in the past, and said that confrontation would help find the truth.

Then, in Bullcoming v New Mexico (564 U.S. __,131 S.Ct. 2705 [2011]), the Court held that under the confrontation clause “the accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

However, in People v Pealer (2011 NY Slip Op 08397 [4th Dept 11/18/11] the Appellate Division Fourth Department held that these holdings do not apply to the calibration and simulator solution certificates used in verifying the accuracy of the breathalyzer test, on the ground that these documents were testimonial subject to the right to confrontation.

A month later, in People v Morrison (2011 NY Slip Op 09450 [12/23/11]) the Fourth Department had a second opportunity to consider the application of Bullcoming. The Court held

Defendant further contends that the admission in evidence of a certified DNA report prepared by an analyst who did not testify at trial and the testimony of an analyst who testified at trial regarding that report violated his rights under the Confrontation Clause of the US Constitution Sixth Amendment (see generally Crawford v Washington, 541 US 36, 50-54). We agree. "The Sixth Amendment to the United States Constitution guarantees a defendant the right to be confronted with the witnesses against him [or her]' " (People v Brown, 13 NY3d 332, 338). "This provision bars admission of testimonial statements of a witness who did not appear at trial unless he [or she] was unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination' " (id., quoting Crawford, 541 US at 53-54). We must therefore determine whether the statements were "testimonial," because only testimonial statements are subject to the Confrontation Clause (see Davis v Washington, 547 US 813, 821).

In Brown (13 NY3d at 336), the report in question contained machine-generated raw data, graphs and charts of a male specimen's DNA characteristics that were isolated from a rape kit. The Court of Appeals held that the report was not testimonial inasmuch as there were "no conclusions, interpretations, or comparisons apparent in the report" (id. at 340; see People v Thompson, 70 AD3d 866, 866-867, lv denied 15 NY3d 757). The forensic biologist who conducted the actual analysis that linked the defendant's DNA profile to the profile in the victim's rape kit was in fact called by the People as a witness in Brown (id. at 340). That was not the case here, where the analyst who performed the tests and concluded that the DNA mixture profile from the vaginal swab sample was consistent with DNA from the victim mixed with DNA from defendant was never called to testify. Contrary to the People's contention, the analyst who was called to testify, i.e., the supervisor of the other analyst, did not perform her own independent review and analysis of the DNA data. Rather, her testimony makes clear that she had nothing to do with the analysis performed by the uncalled witness, and that her only involvement was simply reading the report after it was completed to ensure that the uncalled witness followed proper procedure. The People could not substitute her testimony for that of the actual analyst who performed the tests in order to avoid a violation of the Confrontation Clause (see Bullcoming v New Mexico, ___ US ___, ___, 131 S Ct 2705, 2709-2710).


The Court then determined that this error was harmless, since the defendant had confessed.

Whether the holding of People v Brown (13 NY3d 332) was correct will likely be decided by the Supreme Court in Williams v. Illinois, 131 S Ct ___ (cert. granted June 28, 2011), which has been argued and is pending decision.

A Prospective Juror with Implied Bias Is Unqualified Even If She Gives An Unequivocal Assurance She Can Be Fair and Impartial

The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]).

The rule is different with respect to a prospective juror who is said to have an “implied bias” based on a preexisting relationship with a potential witness that “is likely to preclude her from rendering an impartial verdict. ” Unlike actual bias, implied bias, requires automatic exclusion from jury service regardless of whether the prospective juror declares that the relationship will not affect her ability to be fair and impartial (see e.g. People v Branch, 46 NY2d 645, 650 [1979]; People v Rentz, 67 NY2d 829, 831 [1986]). And such bias, whether acknowledged by the declarant or not, cannot be cured with an expurgatory oath.

In People v Furey, __NY3d__, 2011 NY Slip Op 09000 (12/15/11) , the Court of Appeals again applied this rule and reversed a conviction where a challenge for cause was denied with respect to a prospective juror with implied bias. In Furey, after noting that not all relationships qualify for this implied bias rule and that the “frequency of contact and nature of the parties' relationship are to be considered in determining whether disqualification is necessary” the Court held that it was an abuse of discretion to deny a challenge for cause where the prospective juror’s husband was a police captain who has assigned the detective who investigated the case and

she knew eight of the witnesses (seven police officers and an assistant district attorney) who were to testify at trial — more than half of the People's potential witnesses — and had frequent professional and social relationships with at least two of the police officers. Although [the prospective juror] offered unequivocal assurances of impartiality, those declarations were ineffective in a case like this because there was a considerable risk that she could unwittingly give undue credence to the witnesses she knew and her service would give rise to the perception that defendant did not receive a fair trial.