SCOTUSBlog has a podcast of today’s oral argument.
FederalEvidence blog has a good post on United States v. Caldwell, __ F. 3d ___ (5th Cir. October 26, 2009).
For those of us doing a lot of CP cases – LimeWire, one of several peer-to-peer file sharing programs, is increasingly found to be the method by which CP is received or transmitted. Typically the prosecution calls a forensic computer examiner as an expert witness (although I notice the Navy is trying to short-circuit this by calling the duty NCIS agent to testify about computers). Anyway, FEB notes the difficulty courts are having in deciding whether testimony about computers and/or software falls within [Mil. ]R. Evid. 701 (lay) or 702 (expert).
[T]he line between lay and expert testimony is very hard to discern. A closer question would have been raised in the case if an objection had been made at trial and review was under the less deferential abuse of discretion standard. The issue of lay versus expert testimony arises in other contexts, including on computer forensic testimony, as noted in these prior posts: Drawing The Line On Computer Forensic Expert And Lay Testimony (Part I); Drawing The Line On Computer Forensic Expert And Lay Testimony (Part II).
NMCCA has issued an unpublished opinion in United States v. Davis, III, NMCCA 200900137 (N.M.C. Ct. Crim. App. 8 September 2009).
The case addresses the often perplexing issue of prosecutorial overcharging in CP cases. In this case the prosecution charged the CP under Article 134(1)(2) and (3), UCMJ. The court does note that some overcharging is to be expected prior to trial and the prosecution then commits itself to proving up the various charges. However, this was a guilty plea case. While the MJ did address some factors under United States v. Quiroz, NMCCA decided she’d not gone far enough. There was no effect on the sentence.
CA Court of Appeals provides guidelines for “knowing posession”.
In People v. Michael James Tecklenburg, (2009, 169 Cal. App. 4th 1402) the California Court of Appeals considered the relevance and applicability of involuntary "pop-ups" and temporary Internet files (TIF or "cache") to the applicable statute. California’s Penal Code section 311.11(a) makes it illegal to "knowingly posses or control" depictions defined as child pornography according to state law (P.C. 314, subd. d). The court specifically considered the variables required to establish "control".
In Tecklenburg, the court denied appeal based on the State’s discovery having established the cumulative applicability of the following variables:
- the user actively searched for child porn;
- the user visited child porn web sites;
- the user explored beyond the first page of said web sites;
- the user clicked on images on, at least, one web site;
- the images appeared and were accessed multiple times;
- the user enlarged thumbnail images;
- the images were “part of a series or collection”;
- the size and format did not match that of a pop-up;
- similar, and sometimes identical, images were found on both the user’s home and work computers.
While I don’t agree with the entirety of the court’s findings, said computer forensics expert Jeff Fischbach, nor am I comfortable that the court fully appreciates the non-standardized and ever-evolving nature of the Web, or the limitations of computer forensics, I do think that the decision itself serves as a good minimum benchmark, or litmus test, for both prosecution and defense in similar cases.
A search warrant for drugs and possible records of drug sales did not permit officers to enter defendant’s computer where the execution of the warrant produced no evidence of drug sales on the premises. (There was also a Franks violation because the officer represented a neighbor’s report of drug use and drug sales, but the remainder of the affidavit showed PC. Child porn was found on the computer.) United States v. Payton, 07-10567 (9th Cir. July 21, 2009).
/tip to fourthamendment.com blog for reporting this case.
United States v. Brobst, 558 F. 3d 982 (9th Cir. 2009), is primarily a search and seizure case. But here is a tantalizing piece about double jeopardy in a child pornography case.
In light of this court’s decisions in United States v. Davenport, 519 F.3d 940 (9th Cir. 2008) and United States v. Giberson, 527 F.3d 882 (9th Cir. 2008), Brobst’s convictions for both receipt and possession of child pornography violated the Double Jeopardy Clause of the Fifth Amendment to the Constitution. See Davenport, 519 F.3d at 947. "Where we conclude that a defendant has suffered a double jeopardy violation because he was erroneously convicted for the same offense under two separate counts . . . ‘the only remedy consistent with the congressional intent is for the [d]istrict [c]ourt, where the sentencing responsibility resides, to exercise its discretion to vacate one of the underlying convictions.’" United States v. Schales, 546 F.3d 965, 980 (9th Cir. 2008)(quoting United States v. Ball, 470 U.S. 856, 864, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985)). Accordingly, we vacate the judgment and remand with instructions that the district court vacate one of Brobst’s convictions for either receipt or possession of child pornography, allowing for it to be reinstated without prejudice if his other conviction should be overturned on direct or collateral review.
United States v. Brobst, 558 F.3d 982, *39-40 (9th Cir. 2009).
ACCA issued published opinion today finding error and granting relief in United States v. Amazaki, ARMY 20070676 (A. Ct. Crim. App. March 31, 2009).
[T]he governmentcharged appellant with violating Article 134, UCMJ, by knowingly possessing child pornography in violation of 18 U.S.C. § 2252A.4 On the date the convening authority referred appellant’s charges and specifications to trial, the government dismissed and replaced the Article 134, UCMJ, violation with a charge alleging appellant violated Article 133, UCMJ, by “wrongfully and dishonorably possess[ing]” a diskette containing eight images of child pornography, “negligently fail[ing] to note that there was child pornography” on the diskette, “negligently fail[ing] to eliminate” child pornography from the diskette, and “negligently leaving . . . child pornography on the [d]iskette in his place of residence in such a manner that other persons could easily access” the images.
As a defense counsel you can learn a lot from the prosecutors.
Here is a APRI monograph which explains emails and how to maybe identify who has been sending them. This type of information is as equally useful to the defense counsel as to the prosecutor. The reverse of course works for prosecutors. Make Sun Tzu proud; study the ways of your enemy.