Case o' The Week: Freeloaders Forfeit Fourth - Norris, the internet, and curtilage

  Internet moochers get no Fourth love.

United States v. Norris, 2019 WL 5688802 (9th Cir. Nov. 4, 2019), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Schroeder and O’Scannlain. Hard-fought appeal by former ED Cal AFPD John Balazs.  

Facts: The FBI investigated the distribution of child porn through a file sharing network. Id. at *1. The agent couldn’t determine the physical address for the porn’s source: “boysforboys1.” Id. A search of an apartment linked to this address revealed no evidence of child porn. Id.

  Using “Moocherhunter” software, the agents traced the suspected signal that – without permission -- logged onto the apartment’s router. The signal strength of the child-porn addresses suggested they originated in a different nearby apartment. Id. at *2. The agents got a search warrant for this second apartment and found child porn. Norris was charged. Id. at *3.

  Norris moved to suppress, “alleging that use of the Moocherhunter software amounted to a warrantless search in violation of the Fourth Amendment.” Id. The court relied on Jardines, and concluded that because there was no encroachment on Norris’s curtilage there was not a Fourth Amendment violation. Id. The court “concluded that Norris lacked a subjective, reasonable expectation of privacy, because he connected to a third-party’s router without authorization and assumed the risk that his signal would reveal the MAC address to authorities.” Id.

  Norris was convicted after trial and appealed.

Issue(s): “[ ] Norris seeks to have us apply the protections of the Fourth Amendment to the use of a wireless tracking program to identify the address of his wireless device.” Id. at *1.

Held: “[W]e conclude that no Fourth Amendment search occurred in the course of identifying Norris’s wireless device . . . .” Id. 

  “Although physically located in his home, Norris’s wireless signal reached outside his residence to connect to the wireless router in Apartment 242. The FBI captured Norris’s wireless signal strength outside Norris’s residence to determine the source of the signal. The FBI’s actions may be likened to locating the source of loud music by standing and listening in the common area of an apartment complex. Although the music is produced within the apartment, the sound carries outside the apartment. Just as no physical intrusion ‘on constitutionally protected areas’ would be required to determine the source of the loud music, no physical intrusion into Norris’s residence was required to determine the strength of the wireless signal emanating from the devices in his apartment . . . . We conclude that no subjective expectation of privacy exists under these circumstances, where information is openly available to third parties.” Id. at *4.

Of Note: What about Kyllo? Recall that in that case SCOTUS rejected the cops’ use of thermal-imaging technology to hunt for heat consistent with weed-grow lights. Id. at *5. Isn’t that analogous to the sniffing of Norris’s internet signal here? 

  Not according to the Ninth. 

  “We agree with the district court that Kyllo does not dictate the conclusion that a Fourth Amendment search occurred in this case.” Id. “Unlike in Kyllo, where the defendant confined his illegal activities to the interior of his home and relied on the privacy protections of the home to shield these activities from public observation, Norris’s activities reached beyond the confines of his home, thereby negating any expectation of privacy.” Id.

   Judge Rawlinson is equally unpersuaded that Norris had a reasonable expectation of privacy in the signal: “it strains credulity to suggest that society would be prepared to recognize an expectation of privacy as reasonable when an individual gains access to the internet through the unauthorized use of a third-party’s password-protected router located outside his residence.” Id. at *6.

How to Use: What if, like the Big Bang Theory’s “Penny,” Norris was an authorized internet moocher? The Norris opinion doesn’t get that far, id. at *5, so there may be a sliver of “reasonable expectation” remaining in that fact pattern.

                                               

For Further Reading: Norris is another round Fourth Amendment peg in a square technology hole. A better approach is “digital curtilage.” 

  For an interesting piece discussing that idea, see Professor Andrew Ferguson, The Internet of Things and the Fourth Amendment of Effects, available here.

Image of Penny from “Big Bang Theory” from https://www.pinterest.com/pin/464996730251364996/

Steven Kalar, Federal Public Defender N.D. Cal. Website available at www.ndcalfpd.org

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Case o' The Week: Government "Nails" It - Ubaldo and "But For" Causation for Section 2(b) convictions

  For the want of a nail the shoe was lost, as was the horse, the rider, the message, the battle, and the kingdom.

  Attenuation that resonates, for Mr. Ubaldo.

United States v. Ubaldo, 2017 U.S. App. LEXIS 10284(9th Cir. June 9, 2017), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges O’Scannlain and Callahan.

Facts: FBI agents ran a sting focused on weapons illegally imported from the Philippines. Id. at *4. Special Agent Charles Ro met with Ubaldo, purchased one sniper rifle, then purchased AK-47s, grenades, and plastic explosives from Ubaldo and his co-Ds. Id. at *7. A co-D helped federal agents load the purchases in a shipping container in the Philippines–the agents filled out the Bill of Lading as “furniture.”

  The agents later rendered the guns safe, removed the grenades and explosives, then the agents coordinated the transport of the container to California. Id.

  Among other offenses, Ubaldo was charged with 18 USC § 2 (the Federal “Principals” statute) and 18 USC § 922(l), causing the illegal importation of weapons into the United States. Id. at *8.

  Agent Ro had texted the defendants during this sting, but had only preserved responses – not his texts sent. Id. at *10. The agent lost his phone, and the government was unable to find his “sent” texts. Id. at *10.

  The court denied the motion to dismiss based on these lost texts, but gave a curative instruction that the jury was permitted to infer that the texts “contained information against the government’s interest.” Id.

  Ubaldo was convicted after trial.  

Issue(s): “Defendants assert that the evidence was insufficient to support their convictions because they were not involved in the actual importation of the weapons; selling the weapons was not the but-for cause of the later importation; they did not direct the agents to ship the items; and the government agents broke the chain of causation because government agents cannot illegally import weapons. Id. at *21.

Held: “Viewing the evidence in the light most favorable to the government, this claim is meritless.” Id. at *21. “[U]nder § 2(b), Defendants were not required to take an active role in actually transporting or shipping the illicit weapons to the United States. See 18 U.S.C. § 2(b). Rather, the jury could convict Defendants if they “knowingly” and “willfully” caused the weapons to be transported to the United States. Id. Indeed, Defendants could be held criminally responsible for harms that flowed naturally or were a direct result of their conduct. . . . Under the governing law, Defendants’ role was sufficient to support their conviction under § 2(b). . . . The government presented evidence that [a co-defendant] earned thousands of dollars by procuring high-powered weapons and selling them to an undercover agent, who informed him that he would smuggle the guns into Mexico through California. The government also presented evidence that Ubaldo arranged the meetings for weapons sales, put Agent Ro in contact with a Philippine customs official who could help smuggle the weapons out of the country, and was aware that the weapons would be smuggled into Mexico via California. Considering those facts, a reasonable jury could find that Defendants knowingly and willfully caused illicit weapons to be imported into the United States because the importation of the weapons flowed naturally from their conduct.” Id. at *21-*22 (citations omitted).

Of Note: The defense relied on the Supreme’s Burage decision, arguing they were not the “but-for” cause of the importation. Id. at *22-*23. After all, the FBI handled the shipping, the defendants didn’t direct the agents to ship the guns to the U.S., and – as a matter of law – the agents could not violate the substantive statutes. Id. at *23.

  All mattered not, opined the Ninth: “Agent Ro would not have been able to import the weapons into the United States if Defendants never sold them to him.” Id. at *23.

  A disappointing and broad reading of Section 2(b).  

How to Use: In a brief analysis, Judge Rawlinson finds no error in the refusal to dismiss because of Agent Ro’s failure to preserve texts. Id. at *26. It’s another disappointing holding, but note that the district court did give an adverse inference instruction. At minimum, one remedy to emulate, when texts mysteriously go missing.

                                               

For Further Reading: Guess how many U.S Attorneys have been nominated to fill a nation full of vacancies? 
  (Odds are, you guessed too high). See “Where are the United States Attorneys?,” NYT, available here.  

“For the want of a nail” from http://static.tvtropes.org/pmwiki/pub/images/ForWantOfANail_1375.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Pic, Sixteen => Mand-Min, Fifteen: Laursen and the Child Porn Production statute.

 A picture is worth . . . 5,475 days.

United States v. Laursen, 2017 WL 460660 (9th Cir. Jan. 30, 2017), decision available here.

The Hon. Judge Johnnie B. Rawlinson

 Players: Decision by Judge Rawlinson, joined by Judge Callahan. Concurrence by Judge Hawkins.

Facts: Laursen, 45, had a consensual sexual relationship with a sixteen-year-old girl. Id. at *1. Laursen told police the girl was being prostituted (but did not reveal his relationship). Id. Police examination of the girl’s laptop revealed sexually explicit images of the girl and Laursen. Id. 
  Later, Laursen’s sister gave the police a camera that she found, that contained sexually explicate images of the girl. Id. 
  Laursen was charged with and convicted of production and possession of child porn. Id. at *2. The court rejected a jurisdictional challenge, where Laursen argued that the girl was “not a child” because under Washington law she was a young woman of legal consensual age. Id. at *4. 
  Laursen was sentenced to the mand-min fifteen years. Id.

Issue(s): “In this appeal we address whether taking consensual nude ‘selfies’ involving a forty-five-year-old man and a sixteen-year-old girl is sufficient to support a conviction for production and possession of child pornography.” Id. at *1 (footnote omitted).

Held: “We . . . specifically reject the argument made by . . . Laursen that the legality of his sexual relationship with a sixteen-year-old under Washington state law precluded prosecution under federal law.” Id. “[I]n the state of Washington, Laursen’s sexual relationship with [the girl] was legal but the production of pornography stemming from that relationship was not.” Id. at *6.

Of Note: How many seventeen-year olds routinely take consensual and sexual cell phone shots similar to those in Laursen – pics that here resulted in a fifteen year mand-min sentence? That sobering question is asked by Judge Hawkins in his persuasive concurrence.

  Judge Hawkins would adopt a narrower construction of the key term, “uses” in the child production statute. Id. at *8. He would hold that the term “uses,” as the statute references between the photographer and the minor, requires that the defendant must have “exerted some sort of improper influence on the minor for the purpose of producing the visual depiction of sexual conduct.” Id.

  Applying that narrowing definition here, Judge Hawkins would find that Laursen met that requirement: the big age difference between the couple, Laursen’s gift of drugs to the girl, moving her from motel room to motel room, and the girl’s history of abusive relationships were sufficient evidence of improper influence. Id. at *9.

  Judge Hawkins has the better argument: the very expansive definition of the word “uses” in the majority’s opinion means the only limitation on the high mand-min “production” statute is unfettered AUSA discretion.

  Romeo is lucky there were no iPhones in Verona. Amorous teens, beware.

How to Use: This brief opinion quickly mows through a bevy of constitutional and evidentiary challenges. Id. at *4-*8. One of the most concerning is the rejection to the overbreadth challenge. Id. at *6.

  It was undisputed that Laursen could legally have a full consensual sexual relationship with the sixteen-year old girl. Id. at *6. (“[I]ll-advised, but perfectly legal,” as Judge Hawkins observes.). Id. at *8. However, the instant Laursen encouraged the girl to take a consensual nude picture, he fell afoul of the federal “production” statute and bought himself a fifteen-year mandatory minimum sentence. Id. Notably, there is no evidence that Laursen distributed, transferred, or showed these private pictures to anyone outside of the relationship. Id at *8 (Hawkins, J., concurring).

  The result of Laursen is that consensual intercourse with a sixteen-year old is legal in Washington -- yet encouraging that same sixteen-year old to take a private nude picture converts the relationship into a fifteen-year mand-min federal crime.

  A troubling case that merits a close read for anyone defending child porn production charges.

                                               

For Further Reading: In 2016, the Obama administration started to shut down private federal prisons as prison populations shrank, and after a number of investigations revealed horrific conditions in the for-profit institutions. See article here.

  A.G. Sessions is reversing course. For an interesting -- and disturbing -- piece on the ramifications of the new A.G.’s policy shift, see Private Prisons: Here’s Why Sessions’ Memo Matters, available here.

Image of the Honorable Judge Johnnie B. Rawlinson from http://lasvegasnba.org/wp-content/uploads/2014/08/Judge-Rawlinson-square-image-300x300.jpg

Image of Romeo and Juliet from http://scalar.usc.edu/works/romeo-and-juliet-act-2-scene-2-through-the-years/media/RomeoandJuliet4.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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