Computer Forensics Case Digest -- July 2010
Posted by: Frederick Lane on 10 August 2010
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U.S. v. King, No. 09-3195 (3rd Cir. 7-27-2010) [Unpublished] -- Defendant, a medical doctor, was convicted on multiple counts of fraud. He appealed, alleging ineffective assistance of counsel. He claimed that when the FBI came to his office to seize his computers, they tricked his wife into signing consent forms allowing the FBI to image his computers. Given his wife's testimony to that effect at trial, defendant argued that his counsel should have but did not raise a Fourth Amendment challenge to the search and seizure. The Court of Appeals declined to address defendant's claim, arguing that it was not appropriate for a direct appeal, and that it should be considered as part of a subsequent habeas corpus motion so that a factual record could be developed.
U.S. v. Morris, No. 09-2862 (3rd Cir. 7-19-2010) [Unpublished] -- Defendant pled guilty to possession of child pornography, following an investigation of peer-to-peer file sharing of known child pornography files. A forensic examination of defendant's computer revealed nearly 5,000 images of child pornography. During sentencing, the District Court imposed a post-incarceration requirement (as specified in the Sentencing Guidelines) that defendant comply with the requirements of the Sexual Offender Registration and Notification Act. Defendant argued that imposition of the condition violates U.S. v. Booker, 543 U.S. 220 (2005), which held that the Guidelines are advisory only. But the Court of Appeals noted that the Guidelines requirement stems from a specific statutory requirement, and thus imposition of the SONRA condition does not violate Booker.
U.S. v. Reed, No. 09-4677 (3rd Cir. 7-2-2010) [Unpublished] -- Defendant, a USPS employee, plead guilty to one count of using his work computer to download child pornography. At sentencing, he sought a significant downward departure based on history of child abuse and alleged low likelihood of recidivism. The district court rejected his argument and sentenced defendant to 57 months. The 3rd Circuit found no error and upheld the sentence.
U.S. v. Hough, No. 08-6113 (6th Cir. 7-13-2010) [Unpublished] -- Defendant was charged with attempting to receive and knowing possession of child pornography. Prior to trial, the government announced that under Fed. R. Evid. 404 and 414, it intended to introduce evidence of prior incidents of sexual abuse and molestation of children. After a hearing, the district court ruled that the incidents could only be introduced in rebuttal if the defendant made the information relevant, and the government appealed. The Court of Appeals concluded that although the evidence might be relevant, the district court reasonably concluded that the government did not have a strong need for the evidence and that its introduction would unfairly prejudice defendant.
U.S. v. Phillips, Nos. 08-6099, 08-6271 (6th Cir. 7-12-2010) [Unpublished] -- Defendant was convicted of receiving and possessing child pornography. At sentencing, the district court rejected a five-level enhancement for distribution, stating that the government had not met its burden of proof. The court also overruled defendant's objection to enhancement of his sentence for sadomasochistic content as double-counting, and rejected defendant's request for a downward departure due to depression. Both sides appealed. The appeals court held that the evidence regarding possible distribution of child pornography by defendant was equivocal and that the district court's ruling was not clearly erroneous. The court also ruled (like every other circuit) that defendant's "double-counting" argument was without merit. Finally, the court noted that no downward departure for reduced mental capacity (i.e., depression) is available when the conviction involves "Sexual Abuse and Other Exploitation of Children."
U.S. v. Nance, 09-3786 (7th Cir. 7-12-2010) -- Defendant pleaded guilty to receiving child pornography, and was sentenced to 180 months in prison. On appeal, defendant objected (among other things) to the district court's determination that possession of one additional child pornography image (obtained through peer-to-peer software, but not included in the indictment) was "relevant conduct" for the purposes of sentencing. After a detailed analysis of the Sentencing Guidelines and relevant precedents from around the country, the Court of Appeals affirmed the District Court's sentence. U.S. v. Rogers, 09-3364 (7th Cir. 7-9-2010) -- Defendant was convicted for possessing over 2,200 images and 70 videos of child pornography. He appealed, arguing that the calculation of his 78-month sentence was flawed. He made three claims: 1) reliance on a sentencing guideline promulgated directly by Congress in the PROTECT Act is unconstitutional; 2) enhancement for sadistic or masochistic conduct amounts to double jeapordy, since the conduct is already taken into account in the base offense level for possession of child pornography; and 3) the district court improperly considered evidence not in the record when calculating his sentence. The Appeals Court rejected the first argument on its merits, noting that Congress has ample authority to establish penalties, and held that defendant had waived the remaining two arguments (but would not have prevailed even if he had not).
U.S. v. Faulds, 09-3245 (7th Cir. 7-8-2010) -- Defendant was convicted on one count of distribution of child pornography and one count of possession, resulting in consecutive sentences of 240 and 120 months. Defendant appealed, alleging that the possession charge was subsumed in the distribution charge, and that his conviction on the two counts amounted to double jeapordy. Defendant's assertion of the claim was untimely, so Appeals Court looked to see if there was plain error in separate convictions. There was no plain error; while courts have held that distribution of a tangible object (guns, drugs) necessarily implies possession, the same is not true of child pornography. The electronic nature of child pornography makes it possible to distribute the content and at the same time, still possess it. Since the crime of possession can occur subsequent to the distribution, separate facts can support to distinct convictions.
U.S. v. Tome, No. 09-16486 (11th Cir. 7-27-2010) -- Defendant pled guilty to 13 violations of his supervised release and was sentenced to serve 24 months in prison. The District Court also imposed another year of supervised release with numerous conditions, including an order to stay off the Internet. Tome appealed, arguing that the sentence was too long and the Internet ban was overly broad. The Court of Appeals ruled that the District Court did not abuse its discretion in either instance.
Kapardelis v. Danzig, No. 09-15422 (11th Cir. 7-19-2010) [Unpublished] -- Plaintiff was charged with traveling to Russia to have sex with a minor, and a search warrant was obtained for his computer. A computer forensics examination of the computer revealed images of child pornography, including material produced by Plaintiff. The sex tourism charges were eventually dropped, but plaintiff was convicted for production and possession of child pornography, and sentenced to 35 years. Plaintiff subsequently filed a Bivens action against the government agents who initially investigated him in Russia. The District Court dismissed the case, saying it was barred by Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court ruled that a civil case against the government is barred if it would call into question a valid criminal conviction. The Court of Appeals affirmed.
U.S. v. Brunette, No. 09-13161 (11th Cir. 7-19-2010) [Unpublished] -- Defendent challenged imposition of a sentence of 78 months for possession of child pornography, arguing that his request for a downward variance should have been granted. Defendant's conviction stemmed from an Immigration and Customs Enforcement investigation into a subscription-based child pornography Web site, which revealed that defendant had made at least five monthly payments. A subsequent search of his computer turned up over 1,000 child pornography images. The Court of Appeals ruled that the District Court's sentence followed procedural guidelines and was not substantively unreasonable.
U.S. v. Warren, No. CR 09-2059 BB (N.M. 7-23-2010) -- Defendant in child pornography possession case moved to suppress evidence seized from his computer on the grounds that the underlying affidavit was flawed and failed to establish probable cause. The District Court denied the motion, finding that the affidavit was sufficiently detailed and particular to merit the issuance of a search warrant. The Court did criticize the affidavit for its mistaken reference to a prior conviction of an individual with the same name as the defendant, but held that the mistake did not invalidate the search warrant. It did not show reckless disregard for the truth, nor was it critical to the issuance of the warrant; there was ample evidence regarding defendant's prior identification in ICE investigations, as well as recent efforts to access a fake child pornography Web site created by the FBI.
3rd Circuit Court of Appeals
Bimbo Bakeries USA v. Botticella, No. 10-1510 (3rd Cir. 7-27-2010) -- Defendant in a trade secrets case filed an interlocutory appeal challenging the District Court's injunction barring him from working for a competitor of plaintiff. After a lengthy discussion, the Court of Appeals upheld the District Court's injunction. Among other things, the Court of Appeals noted that a computer forensics examination of defendant's company laptop showed credible evidence of misuse of or theft of plaintiff's confidential business information.U.S. v. King, No. 09-3195 (3rd Cir. 7-27-2010) [Unpublished] -- Defendant, a medical doctor, was convicted on multiple counts of fraud. He appealed, alleging ineffective assistance of counsel. He claimed that when the FBI came to his office to seize his computers, they tricked his wife into signing consent forms allowing the FBI to image his computers. Given his wife's testimony to that effect at trial, defendant argued that his counsel should have but did not raise a Fourth Amendment challenge to the search and seizure. The Court of Appeals declined to address defendant's claim, arguing that it was not appropriate for a direct appeal, and that it should be considered as part of a subsequent habeas corpus motion so that a factual record could be developed.
U.S. v. Morris, No. 09-2862 (3rd Cir. 7-19-2010) [Unpublished] -- Defendant pled guilty to possession of child pornography, following an investigation of peer-to-peer file sharing of known child pornography files. A forensic examination of defendant's computer revealed nearly 5,000 images of child pornography. During sentencing, the District Court imposed a post-incarceration requirement (as specified in the Sentencing Guidelines) that defendant comply with the requirements of the Sexual Offender Registration and Notification Act. Defendant argued that imposition of the condition violates U.S. v. Booker, 543 U.S. 220 (2005), which held that the Guidelines are advisory only. But the Court of Appeals noted that the Guidelines requirement stems from a specific statutory requirement, and thus imposition of the SONRA condition does not violate Booker.
U.S. v. Reed, No. 09-4677 (3rd Cir. 7-2-2010) [Unpublished] -- Defendant, a USPS employee, plead guilty to one count of using his work computer to download child pornography. At sentencing, he sought a significant downward departure based on history of child abuse and alleged low likelihood of recidivism. The district court rejected his argument and sentenced defendant to 57 months. The 3rd Circuit found no error and upheld the sentence.
4th Circuit Court of Appeals
U.S. v. Scott, 09-4728 (4th Cir. 7-6-2010) [Unpublished] -- Defendant challenged denial of his motion to suppress child pornography images found on his computer, arguing that computer repair technician opened the file in the presence of an investigator and was therefore a government agent. The district court disagreed, finding that since the investigator did not instruct technician to open the file, no agency relationship existed. Court of Appeals affirmed.6th Circuit Court of Appeals
U.S. v. Sneed, No. 09-3215 (6th Cir. 7-19-2010) [Unpublished] -- Defendant in armed robbery case challenged probable cause for issuance of a search warrant, arguing that there was no nexus between bank robbery and his Cadillac. During discussion of nexus standard, Court discussed U.S. v. Lapsins, 570 F.3d 758 (6th Cir. 2009), which discussed nexus between child pornography images and home computer sufficient to support a search warrant.U.S. v. Hough, No. 08-6113 (6th Cir. 7-13-2010) [Unpublished] -- Defendant was charged with attempting to receive and knowing possession of child pornography. Prior to trial, the government announced that under Fed. R. Evid. 404 and 414, it intended to introduce evidence of prior incidents of sexual abuse and molestation of children. After a hearing, the district court ruled that the incidents could only be introduced in rebuttal if the defendant made the information relevant, and the government appealed. The Court of Appeals concluded that although the evidence might be relevant, the district court reasonably concluded that the government did not have a strong need for the evidence and that its introduction would unfairly prejudice defendant.
U.S. v. Phillips, Nos. 08-6099, 08-6271 (6th Cir. 7-12-2010) [Unpublished] -- Defendant was convicted of receiving and possessing child pornography. At sentencing, the district court rejected a five-level enhancement for distribution, stating that the government had not met its burden of proof. The court also overruled defendant's objection to enhancement of his sentence for sadomasochistic content as double-counting, and rejected defendant's request for a downward departure due to depression. Both sides appealed. The appeals court held that the evidence regarding possible distribution of child pornography by defendant was equivocal and that the district court's ruling was not clearly erroneous. The court also ruled (like every other circuit) that defendant's "double-counting" argument was without merit. Finally, the court noted that no downward departure for reduced mental capacity (i.e., depression) is available when the conviction involves "Sexual Abuse and Other Exploitation of Children."
7th Circuit Court of Appeals
U.S. v. Ciesiolka, No. 09-2787 (7th Cir. 7-26-2010) -- Defendant was convicted of knowingly attempting to persuade, induce, entice and coerce a minor to engage in sexual activity under 18 U.S.C. § 2422(b). On appeal, he argued that the District Court's committed reversable error. Specifically, he claimed that the use of an "ostrich" instruction relieved the government of its duty to prove beyond a reasonable doubt that defendant believed the alleged minor was under 18. He also challenged the District Court's decision to allow the introduction of other IM chats and images of child pornography seized from his computer, arguing that it was introduced to show his propensity to commit the alleged crime, and that even if admitted for a legitimate purpose, it did not meet the requirements of Fed.R.Evid. 403. The Court of Appeals affirmed both of defendant's arguments, and vacated the judgment.U.S. v. Nance, 09-3786 (7th Cir. 7-12-2010) -- Defendant pleaded guilty to receiving child pornography, and was sentenced to 180 months in prison. On appeal, defendant objected (among other things) to the district court's determination that possession of one additional child pornography image (obtained through peer-to-peer software, but not included in the indictment) was "relevant conduct" for the purposes of sentencing. After a detailed analysis of the Sentencing Guidelines and relevant precedents from around the country, the Court of Appeals affirmed the District Court's sentence. U.S. v. Rogers, 09-3364 (7th Cir. 7-9-2010) -- Defendant was convicted for possessing over 2,200 images and 70 videos of child pornography. He appealed, arguing that the calculation of his 78-month sentence was flawed. He made three claims: 1) reliance on a sentencing guideline promulgated directly by Congress in the PROTECT Act is unconstitutional; 2) enhancement for sadistic or masochistic conduct amounts to double jeapordy, since the conduct is already taken into account in the base offense level for possession of child pornography; and 3) the district court improperly considered evidence not in the record when calculating his sentence. The Appeals Court rejected the first argument on its merits, noting that Congress has ample authority to establish penalties, and held that defendant had waived the remaining two arguments (but would not have prevailed even if he had not).
U.S. v. Faulds, 09-3245 (7th Cir. 7-8-2010) -- Defendant was convicted on one count of distribution of child pornography and one count of possession, resulting in consecutive sentences of 240 and 120 months. Defendant appealed, alleging that the possession charge was subsumed in the distribution charge, and that his conviction on the two counts amounted to double jeapordy. Defendant's assertion of the claim was untimely, so Appeals Court looked to see if there was plain error in separate convictions. There was no plain error; while courts have held that distribution of a tangible object (guns, drugs) necessarily implies possession, the same is not true of child pornography. The electronic nature of child pornography makes it possible to distribute the content and at the same time, still possess it. Since the crime of possession can occur subsequent to the distribution, separate facts can support to distinct convictions.
8th Circuit Court of Appeals
U.S. v. Finley, No. 09-3159 (8th Cir. 7-16-2010) -- Defendant pled guilty to receipt, possession, and distribution child pornography. On appeal, he challenged the District Court's refusal to suppress evidence seized pursuant to a search warrant on the grounds that the warrant allegedly contained false information. Specifically, defendant argued that the investigating ICAC task force member actually downloaded contraband from defendant's IP address two days after the period for which information was requested from defendant's ISP. Defendant argued that the officer seeking the search warrant should have known that the investigator's information was false. A magistrate granted defendant a Franks hearing to give him an opportunity to demonstrate deliberate or reckless falsity on the part of the investigator and officer, and concluded that he failed to do so. The District Court agreed, and noted that even if the magistrate was incorrect, the officer applying for the search warrant could invoke the good faith exception of U.S. v. Leon, 468 U.S. 897 (1984). The Court of Appeals upheld the factual determination and did not reach the Leon discussion, although it suggested that a finding of a Franks violation would in fact preclude application of Leon.9th Circuit Court of Appeals
U.S. v. Kuba, No. 09-10367 (9th Cir. 7-8-2010) [Unpublished] -- Defendant appealed district court's denial of motion to suppress evidence seized from home computer, arguing a lack of probable cause and staleness. Appeals Court found that there was sufficient evidence to support probable cause -- subscription to "a certain website," the likehood of downloads, and the ability of law enforcement to retrieve deleted images. Court also held that passage of 12 months between subscription and search warrant was not ipso facto grounds for a finding of staleness. In particular, Court noted that there was a "fair probability" that contraband images had not been deleted, and "that evidence of the images could still be obtained from the computer."10th Circuit Court of Appeals
Mink v. Knox, No. 08-1250 (10th Cir. 7-19-2010) -- Defendant, a Colorado district attorney, approved a search warrant of plaintiff's home and computers as part of investigation into alleged criminal libel by plaintiff against a University of Northern Colorado professor. Plaintiff filed a Section 1983 lawsuit against defendant and others, and the District Court ruled that defendant enjoyed qualified immunity. Plaintiff appealed. Reviewing the facts of the case de novo, the Court of Appeals concluded that no reasonable prosecutor could have concluded that plaintiff's statements constituted criminal libel of the UNC professor. Moreover, the Court of Appeals held that the search warrant lacked particularity and amounted to a "general exploratory rummaging" of plaintiff's electronic life. The Court reiterated its rule that computer search warrants must "affirmatively limit" any search to evidence relating to a specific crime. The District Court's ruling was reversed and the case remanded for further proceedings.11th Circuit Court of Appeals
U.S. v. Irey, No. 08-10997 (11th Cir. 7-29-2010) -- Defendant pled guilty to a one-count indictment alleging violation of 18 U.S.C. § 2251(c), which prohibits use of a minor in sexually explicit conduct outside of the United States, for the purpose of creating visual depictions of such conduct and transporting said depictions to the U.S. by any means. The District Court sentenced defendant to 17.5 years in prison, out of a maximum sentence of 30 years. The government appealed, arguing that the sentence was too lenient, and that the District Court erroneously relied on an obviously false psychological report. After recounting in detail the gravity of the defendant's offenses (including the molestation and abuse of at least 50 young girls), the Court of Appeals agreed. It vacated the sentence and remanded with instructions that defendant be sentenced pursuant to the guidelines, which in this case specified a minimum and a maximum sentence of 30 years.U.S. v. Tome, No. 09-16486 (11th Cir. 7-27-2010) -- Defendant pled guilty to 13 violations of his supervised release and was sentenced to serve 24 months in prison. The District Court also imposed another year of supervised release with numerous conditions, including an order to stay off the Internet. Tome appealed, arguing that the sentence was too long and the Internet ban was overly broad. The Court of Appeals ruled that the District Court did not abuse its discretion in either instance.
Kapardelis v. Danzig, No. 09-15422 (11th Cir. 7-19-2010) [Unpublished] -- Plaintiff was charged with traveling to Russia to have sex with a minor, and a search warrant was obtained for his computer. A computer forensics examination of the computer revealed images of child pornography, including material produced by Plaintiff. The sex tourism charges were eventually dropped, but plaintiff was convicted for production and possession of child pornography, and sentenced to 35 years. Plaintiff subsequently filed a Bivens action against the government agents who initially investigated him in Russia. The District Court dismissed the case, saying it was barred by Heck v. Humphrey, 512 U.S. 477 (1994), in which the Supreme Court ruled that a civil case against the government is barred if it would call into question a valid criminal conviction. The Court of Appeals affirmed.
U.S. v. Brunette, No. 09-13161 (11th Cir. 7-19-2010) [Unpublished] -- Defendent challenged imposition of a sentence of 78 months for possession of child pornography, arguing that his request for a downward variance should have been granted. Defendant's conviction stemmed from an Immigration and Customs Enforcement investigation into a subscription-based child pornography Web site, which revealed that defendant had made at least five monthly payments. A subsequent search of his computer turned up over 1,000 child pornography images. The Court of Appeals ruled that the District Court's sentence followed procedural guidelines and was not substantively unreasonable.
D.C. Circuit Court of Appeals
U.S. v. Burroughs, No. 08-3085 (D.C. Cir. 7-16-2010) -- Defendant pled guilty to sexual abuse of a minor and was sentenced to prison with a period of supervised release following his incarceration. Among other things, the district court ordered defendant to submit to Probation Office monitoring of his computer and to pay for the necessary software, and to keep a log of his non-work-related Internet activity. Noting that a computer played no role in the offense and that no contraband was discovered on defendant's computer, the Court of Appeals concluded that the district court's restrictions were not relevant to the statutory elements of the crime and impacted defendant's substantial rights. Concluding that the imposition of the restrictions was plainly erroneous, the Court of Appeals remanded that aspect of the sentence to the District Court for reconsideration.D. California [E.D.]
Inman v. Clark, No. CIV S-08-2217-CMK-P, (E.D.Cal. 7-2-2010) -- Petitioner filed writ of habeas corpus, alleging ineffective assistance of counsel. Among other things, petitioner alleged that his trial attorney failed to investigate petitoner's claims that images of child pornography and various hardcore teen and child sex URLs were on his computer as part of research for a proposed article for NBC's Dateline program. The District Court rejected that claim, noting that trial counsel asked police forensic examiners to search for any emails or other electronic evidence of communication to or from Dateline. None was found.D. California [N.D.]
U.S. v. Tosti, No. C 09-00973-1 JSW (N.D.Cal. 7-12-2010) -- Defendant brought computer to CompUSA for repair. Technician discovered child pornography and contacted local police. A warrant was issued for defendant's home and he was indicted for possession of child pornography based on items found during the search. Defendant filed a motion for production of documents from the FBI seeking "any and all records" relating to the FBI's contact with CompUSA and its employees throughout the United States for a period of approximately two years. The Government moved to quash the subpoena and the district court agreed, saying that defendant's motion had failed to satisfy the factors enunicated by the Supreme Court in U.S. v. Nixon, 418 U.S. 683 (1974). In particularly, the court said, the defendant failed to show that the requested documents would be relevant and on its face, the subpoena was overly broad.D. Conn.
U.S. v. Perlitz, Criminal No. 3:09cr207 (JBA) (Conn. 7-14-2010) -- Defendant was charged with traveling in interstate commerce, i.e. Haiti, for the purposes of having sex with individuals under that age of 18. Defendant challenged the indictment, arguing inter alia that it failed to allege sufficient contact with Connecticut to support venue there. After a detailed analysis of defendant's activities in Haiti, including use of pornography on a laptop computer to help groom victims, the district court concluded that defendant's actions in Connecticut were all preparatory to the crime, but not elements of the crime itself. Defendant's motion to dismiss was granted.D. Florida [M.D.]
Borden v. U.S., Case No. 6:09-cv-481-Orl-31DAB (M.D.Fla. 7-15-2010) -- Petitioner, a tax preparer, was convicted on 27 counts of assisting individuals in filing false tax returns. Petitioner moved for post-conviction relief on the grounds that she received ineffective assistance of counsel. Specifically, petitioner argued that her attorney failed to challenge the admission seized from her computers, on the grounds that the search warrant did not include a protocol for limiting investigator access to non-relevant information. The district court noted that the Eleventh Circuit does not have a requirement for such a protocol and that in any event, there was no evidence that agents went beyond the scope of the warrant during their search. Although that argument was rejected, the district court did order a hearing on whether petitioner received ineffective assistance of counsel with respect to a plea deal offered by the government.D. Illinois [N.D.]
Hale v. United States, No. 1:08 CV 94 (N.D.Ill. 7-22-2010) -- Defendant was convicted of one count of solicitation to commit a crime of violence -- U.S. District Court Judge Joan Lefkow -- and three counts of obstruction of justice. He was sentenced to 480 months in prison, and his conviction was affirmed on appeal. He subsequently filed a § 2255 motion, alleging that his conviction was unconstitutional or otherwise illegal. Among other things, Hale argued that his Sixth Amendment rights were violated due to the ineffective assistance of counsel. Specifically, he argued that his counsel failed to file a motion to suppress the seizure of computers on the grounds that the warrant was invalid. On that issue, the District Court concluded that there was ample nexus between the criminal allegations and the electronic equipment seized to support the issuance of the search warrant. Since defendant could not introduce facts to show a motion to suppress would have been successful, the failure to introduce such a motion was not ineffective assistance of counsel.D. Indiana [S.D.]
CDW LLC v. NETech Corporation, 1:10-cv-530-SEB-DML (S.D.Ind. 7-7-2010) -- Computer forensics used to demonstrate that former CDW employees copied confidential business information and trade secrets from CDW and transferred them to NETech.D. Iowa [N.D.]
U.S. v. Heggebo, No. CR10-0016 (N.D.Iowa 7-7-2010) -- A detailed discussion by U.S. Magistrate of the probable cause required to examine a video camera and cell phone. Police received information from a confidential informant about a home-made child pornography video on defendant's video camera; separately, an individual turned in a lost cell phone containing a video of "an older man [identified as defendant] videotaping a naked, prepubescent minor girl in the shower." Search warrants were granted for both devices, and defendant moved to suppress images and videos of child pornography recovered from both devices. Magistrate found that under the relatively generous 8th Circuit standard, there was adequate probable cause for the issuance of each warrant, and that even if not, the Leon good faith exception applies in both cases. He recommended denial of defendant's motion to suppress.D. Mass.
Sony BMG Music Entertainment v. Tenenbaum, Civil Action No. 07cv11446-NG (Mass. 7-9-2010) -- Defendant challenged as excessive a $675,000 jury award for infringement of thirty copyrighted works using Kazaa peer-to-peer software. In a lengthy and thoughtful opinion, the district court concluded that the award violated defendant's Fifth Amendment due process rights and reduced the award to $67,500.D. Missouri [E.D.]
Norris v. United States, Case No. 4:10CV00247 SNLJ (E.D.Mo. 7-8-2010) -- Petitioner filed Section 2255 motion to set aside his conviction for possession of child pornography. Among other things, he argued that counsel failed to investigate "whether petitioner was responsible for knowingly placing child pornography images on his computer." The court noted that when petitioner plead guilty, he expressed satisfaction with the work of his attorneys and admitted that there was a factual base for the guilty plea. The court found petitioner's claim of ineffective assistance to be without any merit.D. Nevada
U.S. v. Garcia, Case No. 2:07-cr-00235-LDG-PAL (Nev. 7-9-2010) -- Defendant convicted on one count of enticement and attempted enticement of a 13-year-old female (actually an undercover investigator). Defendant challenged his conviction, arguing that he was denied his Sixth Amendment rights to put cross-examine witnesses and put on a defense. The court rejected the arguments, noting among other things that defense counsel questioned the investigator about the lack of child pornography on defendant's computer, and argued the same point to the jury.D. New Hampshire
Wentworth-Douglas Hospital v. Young & Novis Prof. Assoc., Civil No. 10-cv-120-SM, Opinion No. 2010 DNH 128 (N.H. 7-28-2010) -- Plaintiff alleges that various doctors, after being informed of the non-renewal of their contract for pathology services, downloaded confidential information from plaintiff's network and then installed DriveScrubber 3 software that caused considerable loss of data on multiple hard drives on plaintiff's network. Defendants moved to dismiss, arguing that the plaintiff had failed to state a claim upon which relief could be granted. The District Court determined that the complaint was sufficient well-plead to support the various counts at this stage of the proceedings, and denied defendants' motion.D. New Mexico
U.S. v. Warren, No. 09-CR-2059 BB (N.M. 7-29-2010) -- Defendant in child pornography possession case moved for a bill of particulars from the government. The District Court denied the motion, saying that defendant had received ample information about the nature of the allegations, including a detailed computer forensics report.U.S. v. Warren, No. CR 09-2059 BB (N.M. 7-23-2010) -- Defendant in child pornography possession case moved to suppress evidence seized from his computer on the grounds that the underlying affidavit was flawed and failed to establish probable cause. The District Court denied the motion, finding that the affidavit was sufficiently detailed and particular to merit the issuance of a search warrant. The Court did criticize the affidavit for its mistaken reference to a prior conviction of an individual with the same name as the defendant, but held that the mistake did not invalidate the search warrant. It did not show reckless disregard for the truth, nor was it critical to the issuance of the warrant; there was ample evidence regarding defendant's prior identification in ICE investigations, as well as recent efforts to access a fake child pornography Web site created by the FBI.
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