Cache Landing

United States v. Ramos, No. 10-4802-cr (2d Cir. July 2, 2012) (Winter, Raggi, Chin, CJJ)

This long opinion in a child pornography (“cp”) case tackles two interesting issues.

Background

James Ramos was on New York State parole for a sex offense; to secure his release, he agreed to a search condition, to “promptly, fully and truthfully” reply to his PO’s questions, and to “fully” comply with the PO’s instructions.  He also, obviously, had to agree to stay away from “pornographic materials.” After five years, the PO told Ramos that two new conditions, polygraph testing and GPS monitoring, were being added to his supervision. Ramos protested at first, but eventually gave in.

Before his first polygraph examination, Ramos told the examiner that he had viewed forbidden materials, including cp, on his computer several times since his release. He took the test, which was inconclusive, then signed a form admitting what he had told the examiner. After that, he was forbidden from owning or using a computer or accessing the internet.  The PO also told ICE agents about Ramos, and the agents went to his home to follow up. Ramos admitted to the agents that he had viewed cp on his computer and that the agents would probably find some cp images on the computer.  Eventually, Ramos waived his Miranda rights and consented to a search.  The computer revealed that he had visited cp internet sites and viewed images of cp: the hard drive had deleted “cookie” files from suspect websites, and there were deleted web pages that bore the names “Lolita Photos” and “9-12yr Pics,” although the images themselves were not recoverable.  Ramos had seemingly deleted his browser history, but there had been 140 cp images from temporary internet files in the deleted space.

A few months later, after Ramos was indicted, ICE agents and parole officers went to his home to arrest him. A search that day revealed a laptop; PO’s opened it, clicked on an icon and found more child pornography, although those images appeared to be morphs. The hard drive had a software program that permitted a user to alter images and that software had been used to modify pictures of two young girls to make it appear as if they were engaged in sex acts.The laptop was made in Korea and its hard drive was made in Thailand.

In the district court, Ramos moved to suppress his statements and the evidence recovered from the two searches. When that motion was denied, he went to trial and was convicted of three counts of receiving and possessing cp. He received the mandatory minimum for a recidivist - 180 months’ imprisonment.

The Fifth Amendment Issue

Ramos’ first claim on appeal was that the statements he made during the polygraph examination were compelled, in violation of the Fifth Amendment.  While generally the Fifth Amendment privilege must be invoked before an individual can seek its protection, there is an exception for “penalty cases” - those where the government compels waiver of the Fifth Amendment privilege by "threatening some sort of sanction capable of forcing self-incrimination.” Thus, if a probation or parole officer tells a supervisee, “explicitly or implicitly, that invocation of the privilege would lead to revocation of supervision, the supervisee is deemed to have been compelled to speak and his failure to assert the privilege would be excused.” This compulsion occurs where the supervisee is required to “choose between making incriminating statements and jeopardizing his conditional liberty by remaining silent,” but it does not occur “merely because the terms of [release] require [the releasee] to appear before his probation officer and tell the truth ‘in all matters.’” Whether a case is a “penalty case” turns on a examination of the “totality of the circumstances.”

Here, Ramos claimed Fifth Amendment protection for the incriminating statements he made during the course of the polygraph examination. The circuit held that those statement were not compelled. First, Ramos was not told that he would lose his freedom if he invoked the Fifth Amendment. Rather, the consent forms provided only that he could face revocation of his parole if he failed to truthfully answer his PO’s questions.  Moreover, there was no evidence that Ramos “subjectively felt compelled to answer incriminating questions.” Ramos testified that he felt he had to sign consent forms or be sent back to prison, but did not say he felt the same way about answering incriminating questions. Third, Ramos could not have “reasonably believed” that his parole would be revoked if he exercised his Fifth Amendment rights, because that is illegal under New York law.

The Sufficiency of the Evidence

Ramos raised two sufficiency issues on appeal, both unsuccessfully.

His first argument was that viewing images in temporary internet files does not constitute the receipt or possession of child pornography. Here, the trial evidence showed only that Ramos viewed images in temporary internet “cache” files without saving them. He argued that the mere viewing of child pornography stored in temporary cache was insufficient to sustain a conviction under the then-applicable statute, which made it a crime to knowingly receive or knowingly possess material containing an image of cp (the statute has since been amended to include knowingly accessing cp with intent to view it).

The Second Circuit gives the terms receipt and possession their ordinary meaning, but until now it was an open question whether viewing images stored in temporary cache files sufficiently established a knowing receipt or possession of cp. Other circuits have split on the question, although the majority have found that it is, and the circuit went with the majority, at least on the facts here. Even if Ramos “viewed the images in question only in temporary internet files and did not save them into his hard drive,” he still was guilty of knowingly receiving and possessing child pornography.

He “clearly ‘received’ and ‘possessed’ the images, even though they were only" in cache files.  The trial evidence showed Ramos had “some control” over the images, “even without saving them”: he could view them on his screen, leave them on his screen for as long as the computer was on,  copy and attach them to an email, print them and move them from a cache file to other files and view or manipulate them off-line.  Thus, “an individual who views images on the internet accepts them onto his computer, and he can still exercise dominion and control over them, even though they are in cache files.”

Here, in addition, there was “ample evidence” that Ramos intentionally searched for images of cp, found them, and knowingly accepted them onto his computer, albeit temporarily.  This was supported by his browsing history, which showed that he viewed 140 images of cp, his knowledge that the images would likely be found on his computer, and his deletion of his temporary internet files and browsing history.

Ramo’s second sufficiency claim related to interstate or foreign commerce.  One of his computers contained morphed images. He argued both that the government failed to establish that the original “source” images came through the internet or in commerce and that the government failed to show that he produced the images using materials that had traveled in commerce.

The circuit rejected the first argument out of hand. The government does not have to show that the cp itself has crossed state lines. Even cp “created entirely intrastate” had a “significant impact on interstate commerce because” of its effect on the interstate market.

The court also held that the interstate commerce element is established by a defendant’s use of a foreign manufactured computer to produce cp. The morphed images here were found on Ramos’ laptop; both the computer and its hard drive were made in foreign countries, and were thus both materials that had been “shipped or transported in interstate or foreign commerce.” And there was sufficient evidence that Ramos himself used the computer equipment to create the morphs himself. 

Gone To Pot

United States v. Celaj, No. 10-2792-cr (2d Cir. August 22, 2011)(Miner, Cabranes, Straub, CJJ)

Din Celaj headed a crew that would rob - or try to rob - drug dealers. When successful, they would obtain drugs, which they would themselves sell, money and firearms.

He went to trial on several Hobbs Act robbery and associated 924(c) counts, was convicted, and received a 601-month sentence. On appeal, he made a sufficiency claim as to the jurisdictional element of the Hobbs Act counts where the goal was to steal marijuana. He did so despite entering into a stipulation at trial that “marijuana is grown outside of the state of New York and travels in interstate and foreign commerce to arrive in the New York City area.” The circuit affirmed.

The court began by surveying the area. In Parkes, see "Government Has No Evidence; Court Deems It Sufficient," posted September 23, 2007, the court found the evidence sufficient even though there was no specific evidence about the origin of the marijuana that was stolen, where there was evidence that the object of the robbery was a “small but going” marijuana enterprise, the theft netted several bags of marijuana and $4,000 in cash, and an expert testified that marijuana is typically trucked in through Mexico and very little is grown in New York. By contrast, in Needham, see "Reefer Gladness," posted May 23, 2010, the court found the evidence - which was limited to the amount of money obtained - insufficient since there was no proof that the marijuana sold by the robbery victims had either originated or been sold out of state.

“Guided by” these cases, the court concluded that the evidence here “achieve[d] the same effect as the evidence offered in Parkes,” which was sufficient. There, the “key evidence” was the expert testimony. Here, the stipulation conveyed “the same information about the interstate nature of the marijuana trade.” And, unlike Neeham, there was more evidence than just drug money, because Celaj had made statements that he was in the business of stealing marijuana and selling it.

It’s Not In The Timing

United States v. Davis, No. 09-3636-cr (2d Cir. November 5, 2010) (Newman, Raggi, CJJ, Rakoff, DJ)

Williams Davis was convicted, after a jury trial, of inter alia, producing child pornography, and was sentenced to 120 years’ imprisonment. This opinion address the novel issue of whether the defendant must know that the pornography will be transmitted in interstate commerce at the time he produced it.

This was an unusually ugly case. Davis, who had been convicted in 1991 of sexually assaulting his daughter and niece, and in 2007 of kidnapping and raping a twelve-year-old girl, also sexually abused his step-daughter in 2006, and apparently photographed some of the activity. When his wife found out about the abuse she evicted him from their apartment, but Davis left behind a safe. Eventually, the wife gave the safe to police officers, who opened it and found CD’s containing the child pornography.

Davis was convicted of violating 18 U.S.C. § 1951(a) which makes it a crime to induce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of the conduct, if the defendant knows or has reason to know that the visual depiction will be transported or transmitted in interstate or foreign commerce or mailed.

During deliberations, an extremely astute and diligent jury, “identifying an issue that had escaped the attention of trial counsel” - neither side had requested a jury instruction on this issue - “and that apparently has not been adjudicated in any other court,” asked whether § 2251(a) requires the defendant to know that the visual depiction will be transported in interstate commerce “at the moment the picture is produced or whether" that knowledge can come about later.

The district judge replied that the defendant “did not have to know or have reason to know” that fact “at the moment that the visual depiction was produced.” All that was required, the judge went on, was proof beyond a reasonable doubt “that the defendant knew or had reason to know that the visual depiction at issue would be transported in interstate or foreign commerce or mailed at any time prior to ... the date on which the visual depiction was recovered” by the police.

On appeal, the circuit, which seemed to be striving mightily to affirm, did so.

First, while the court agreed that the “words of the statute do not yield a clear answer” because the statute “neither explicitly requires knowledge of future interstate transmission to exist at the time the visual depiction is produced nor explicitly contemplates that the knowledge might be” acquired later, it refused to apply the rule of lenity because, according to the court, the “simple existence of some statutory ambiguity” is “not sufficient [its] warrant application.”

Thus while there was no legislative history on this point, the circuit concluded that not requiring contemporaneous knowledge was consistent with a general congressional purpose to “reach those who produce child pornography and thereafter affect interstate commerce,” even though this finding was made when Congress amended other parts of § 2251(a).

The court also supported its holding by looking closely at the statute itself. It pointed out that the statute has three clauses. The first is the one at issue here. The second covers production of child pornography using materials previously shipped in interstate commerce, and the third covers visual depictions that have themselves been transmitted after their creation. The court pointed out that both the second and third clauses “specify events that need not be contemporaneous” with the production of the images. The second clause covers interstate shipments that occurred before the images were made, while the third obviously covers interstate shipments after the depiction is made. Thus, under the “whole act” rule, the court decided that the “first clause ... best fits with the second and third clauses if a contemporaneous knowledge element is not read into the statute.”

Comment

It is often remarked that bad facts make bad law. And here, while it is difficult to muster much sympathy for Davis, the reasoning supporting this opinion is unusually thin.

First, the court’s explanation of why the rule of lenity should not apply seems just wrong. In remarking that a “simple ambiguity” is not enough, the court relied on a Supreme Court case, Muscarello v. United Sates, 524 U.S. 125, 138 (1998). But the language that the court relies on is, at best, incomplete. Muscarello construed the word “carry” in 18 U.S.C. § 924(c) to include carrying a firearm in a vehicle, instead of limiting it to carrying a firearm on one’s person. And, while it is true that the Court rejected the rule of lenity there, Muscarello is nothing at all like this case. First, there the statute actually contained language that covered the question at issue - the word “carry.” The statute here, by contrast, says nothing at all about the question at issue. Moreover, the Court in Muscarello settled on what it called the “generally accepted contemporary meaning of the word carry,” which would suggest that the Court did not even truly view the statute as ambiguous at all, and that its discussion of the rule of lenity was just a response to the dissent, and hence dicta. That is another important distinction; here, the circuit began by agreeing that the statute was ambiguous. Finally, the Muscarello Court suggested that the rule of lenity would apply if all the court can do is “guess as to what Congress intended.” This case comes pretty close to that: the statute is completely silent on the issue, and only the legislative history contains only general language about Congress’ disdain for sex offenders in a finding made after the relevant portion of the statute was enacted. If the rule of lenity does not apply when the statute is silent and there is no direct legislative history, when does it ever apply?

The circuit’s analysis of the statue is equally unconvincing. If clause two covers interstate commerce before the depiction is made, and clause three covers interstate commerce after the depiction is made, it would seem perfectly consistent with this scheme to construe clause one as interstate commerce during the creation of the depiction: before, during and after makes more sense than before, after and after. The court's unelaborated mention of the so-called "whole act" rule hardly supports its contrary reading. That rule simply requires that statutes be read to give effect to every provision, rendering none superfluous, and that each section be read in the context of the whole statute, not in isolation. But that rule gives no real substantive guidance here; under it, the alternative reading of the statute described above is just as convincing as the court's.

Reefer Gladness

United States v. Needham, No. 06-5652-cr (2d Cir. May 14, 2010) (Cabranes, Katzmann, Parker, CJJ)

The three defendants here were part of a larger group that was in the business of robbing drug dealers of drugs and drug proceeds. They were all convicted of a Hobbs Act conspiracy, which included robberies of cocaine and heroin dealers, and each was also convicted of one substantive count involving the robbery of a marijuana dealer. Consistent with circuit law at the time, the district court instructed the jury that “all illegal drug activity, even if it is purely local in nature,” affects interstate commerce. While the defendants’ appeal was pending, the circuit held that this instruction was wrong: proof of drug trafficking does not automatically prove an affect on interstate commerce. Instead, “even in drug cases, the jury must find such an effect as part of its verdict.” Finding plain error in the interstate commerce jury charge here, a divided panel court reversed the defendants’ substantive, marijuana-related robbery convictions, but affirmed on the conspiracy count.

The Majority’s View

Under current circuit law, the interstate effect cannot be “presumed” when the object of a robbery is to obtain illegal drugs or drug proceeds. This element, like any other, must be found by jury beyond a reasonable doubt.

Accordingly, the court treated the error here as a charge error, because the charge withheld an element from the jury’s consideration. But, since this was a plain error case, rather than assessing the record to determine whether the error was harmless, the court considered whether the error “affected substantial rights”; that is, “whether the error was prejudicial.” To make this decision, the majority “closely examine[d] the record to determine whether the jury, had it been properly instructed, would have found the jurisdictional element satisfied, or whether the government failed to prove this element beyond a reasonable doubt.”

The entire panel found the interstate element satisfied for the defendants’ conspiracy conviction. A conspiracy that “targets cocaine and heroin, and the proceeds from their sale, undoubtedly meets” the relevant legal standard - the “possibility or potential of an effect on interstate commerce, not an actual effect” - because those drugs “cannot be produced in New York, and thus necessarily travel in interstate commerce.” Thus, even though the government introduced no evidence to support this proposition, the jury was “capable of concluding, based on its lay knowledge, that cocaine is imported into the United States.” This, according to the court, satisfied the jurisdictional element “beyond a reasonable doubt.”

But two judges had a different view of the substantive convictions involving robberies of marijuana dealers. Apart from the large amounts of money involved in those robberies, the government “offered no evidence to support an interstate nexus,” such as proof that the marijuana originated out of state, was sold to out-of-state-customers, or that the victims crossed state lines in conducting their business or would have purchased goods in interstate commerce with the proceeds.

And, according to the majority, “marijuana may be grown, processed, and sold entirely within New York.” Thus, “reviewing for prejudice,” the majority found that the erroneous jury charge “may very well have affected the outcome of the district court proceedings.” The proof was “simply too bare to establish, without more, the required interstate nexus,” even though that nexus need be only “subtle or slight.” The majority refused to find that effect based solely on the amount of money involved in the robberies: “the sheer amount of money, standing alone, does not demonstrate an interstate effect.”

The Dissent

Judge Cabranes had a different view. He agreed that the jury instruction was erroneous. But he had “no trouble concluding beyond a reasonable doubt that the jury would have returned the guilty verdict even absent the instruction that was given.” He found no possibility that “the jury in this case could have concluded that the robberies at issue involved marijuana that was grown, processed, and sold entirely within New York” and was “confident” that the jurors would have found that at least some of the drugs or proceeds derived from interstate or foreign commerce “based on their lay knowledge and common sense.”

Moreover, Judge Cabranes was also “confident that a properly instructed jury would have found the required effect on commerce even if the jury had assumed that the marijuana in question was grown, processed, and sold entirely within New York.” To him, Congress actually has Commerce Clause power to prohibit the local cultivation and use of marijuana, thus, the robbery of the proceeds of even homegrown marijuana is covered by the Hobbs Act.

Comment

This decision prompts a couple of issues that require some further thought.

First, this decision reveals a serious problem with current Second Circuit interstate commerce jurisprudence. According to the court, the government need not introduce any evidence at all of interstate commerce for robberies involving heroin, cocaine or their proceeds, even though this is an element of the offense. There is dangerous and a slippery slope here. Many federal crimes have an interstate commerce element as the jurisdictional hook, and there is a real danger that this “we don’t need any evidence, just the jurors’ common sense” approach could be extended to other criminal statutes. Could jurors use their “common sense” to conclude that, say, stolen property from other states so commonly ends up in New York that the government need not introduce evidence on this element? A better rule would be to require the government actually introduce evidence on interstate commerce in every case where it is an element, and not just some of them. This would hardly be a burden - any law enforcement officer who knows anything about drugs could be an “expert” on the question.

The second weird thing about this decision is the relief granted. Although the majority found a prejudicial charge error on the substantive counts, it did not vacate those counts and remand for a new trial, as it typically does when there is a charge error, even one that dilutes or eliminates an element. Instead, the court reversed the convictions on the marijuana-based counts, which is typically the relief granted only where the court has found the evidence insufficient. Why would the majority secretly treat this as a sufficiency case, and not say what it is doing?

Diner Out

United States v. Iodice, No. 06-2680-cr (2d Cir. May 6, 2008) (Straub, Pooler, Sotomayor, CJJ).

John Iodice appealed his arson conviction on the ground that there was insufficient evidence of the requisite nexus to interstate commerce. The circuit affirmed.

The building that Iodice torched had been, at one time, a diner. Its owner had purchased it, vacant, eighteen months before the fire. The diner was “complete and ready to open,” and, but for the fire, the owner was planning to move and reopen it six months later. A co-conspirator testified that the fire was intended to destroy the diner and prevent competition with another one already located near the new location.

The court rejected Iodice’s claim that the diner was not “used in” interstate commerce, as required by 18 U.S.C. § 844(i). The diner was a commercial building that was only temporarily inoperative. “[T]emporarily vacant buildings” can have a sufficient connection to commerce “as long as there was evidence at trial of sufficiently definite plant to return the property to the stream of commerce.” Here, the evidence of the owner’s future plans, coupled with the motive for the fire, sufficed.

Government Has No Evidence; Court Deems It Sufficient

United States v. Parkes, No. 05-1486-cr (2d Cir. August 15, 2007) (Jacobs, McLaughlin, Calabresi, CJJ).

In a sterling example of the alchemy of result-oriented jurisprudence, here the court finds sufficient evidence of an effect on interstate commerce, even though there was none.

Otis Parkes and two others planned and carried out 2003 robbery attempt in the apartment of a drug dealer. Their target was marijuana and marijuana proceeds that the dealer kept hidden in his closet. During the robbery, one of the co-conspirators shot and killed the drug dealer. Parkes went to trial on a Hobbs Act robbery conspiracy charge under 18 U.S.C. § 1951, along with other, related charges, including murder in furtherance of a crime of violence, under 18 U.S.C. § 924(j). He received a life sentence.

The government had taken the position (a typical SDNY overreach) that it did not have to prove any effect on interstate commerce and that, as long as it proved that the target of the robbery was drugs or proceeds this element was satisfied. At the charge conference, Judge Kaplan disagreed, but permitted the government to reopen and call an “expert,” who testified that marijuana is “almost exclusively” trucked into the United States from Mexico, and that “very little” is grown in New York. He conceded that he did not know the origin of the marijuana found in this case and that marijuana can be, and is, grown in New York State.

On appeal, the Circuit reached two significant, albeit contradictory conclusions. It first held that, in a Hobbs Act prosecution, the government must, indeed, prove an effect on interstate commerce, rejecting the government’s (renewed) argument that a robbery involving drugs or proceeds affects commerce as a matter of law. This is significant because, to get there, it had to conduct what is calls a “mini-en banc” to undo United States v. Fabian, 312 F.3d 550 (2d Cir. 2002). There, the court had held that, for the loan sharking portions of the Hobbs Act, drug proceeds affect commerce as a matter of law. Fabian had imported the Congressional findings under the Controlled Substances Act, 21 U.S.C. 801, et. seq., that all drug trafficking affected commerce to the Hobbs Act. Here, the Circuit did an about-face, relying, of all things, on Booker, which of course has nothing to do with commerce, to conclude that Fabian is “no longer good law.”

So far, so good for Mr. Parkes. Unfortunately, the court then concluded that the non-evidence introduced by the government was sufficient, because “a reasonable juror, hearing [it] could have found that the attempted robbery of ... marijuana or proceeds would have affected interstate commerce in any way or degree.”

The court rejected all of Parkes’ other claims, as well, but remanded the case for resentencing under Booker.

Comment: This is a ridiculous case. On the one hand, it requires the government to prove an effect on interstate commerce in Hobbs Act cases involving drugs or proceeds. But on the other hand, it completely excuses the government’s failure to do so.