Monday, July 24, 2017

The Chief of Police, the Facebook Posts and Stalking

This post examines a rather unusual stalking case from the Appeals Court of Massachusetts: Commonwealth v. Cristino, 2017 WL 2989723 (2017). The court begins the opinion by explaining that
[a]fter a jury trial, the defendant was convicted of two counts of stalking pursuant to [Massachusetts General Laws  265 § 43(a). On appeal, he argues that the evidence presented was insufficient to establish the requisite elements of the offense, and that the judge's denial of his motion for a required finding of not guilty was erroneous. 
Commonwealth v. Cristino, supra.
The Appeals Court goes on to explain how, and why, the prosecution arose:
The victims of the defendant's alleged stalking are the chief of police and deputy chief of police in Milford. The evidence against the defendant came primarily from a series of Facebook posts that he made, where he openly criticized the two heads of the police department and accused them of corruption, drinking on the job, abusing alcohol, and having improper relationships with local drug dealers and criminals. A total of seventeen videos from Facebook were submitted in evidence after having been posted to his private, personal page. There was also evidence of signs the defendant posted on his property, which was on Milford's Main Street. The signs contained derogatory statements about the chief and deputy chief. Finally, the chief of police testified that he had observed the defendant following him in his car while driving through the town.

The substance of the Facebook videos in question varied from complaints about the chief and deputy chief, threats to take them to court, accusations that they were regularly drinking at a local restaurant and bar named Isabel's, and several videos depicting either the chief's or the deputy chief's vehicles in the parking lot at Isabel's or parked nearby. Mixed in throughout the videos are various statements which arguably, if taken alone, could be considered to be threats. These include the defendant saying he was going back to `old school’ in a video in which he criticized the chief and deputy chief for spending time with criminals and stating that they, and the town, were `bananas.’ In a separate video, while addressing `Chiefy Weify,’ the defendant stated: `I'm not afraid of you. You're afraid of me, and I would be too.’ In a broader sense, this video portrays the defendant recording himself while accusing the chief and deputy chief of using drugs and associating with drug dealers. Finally, when speaking to the unknown person who removed a license plate from his vehicle, the defendant said, `I hope they catch you. Better them catching you than me anyway, because I'd grab you by the hair and keep you here or a couple of stomps on your face.’
Commonwealth v. Cristino, supra. In another footnote, the court explains that the “defendant surmises in this video that his license plate was stolen by the deputy chief's child, but does not offer any basis for this accusation. Regardless, the deputy chief's son is not a complainant in this matter.” Commonwealth v. Cristino, supra.
And in yet another footnote, the court explains that “[o]ne sign read `Fuck you, chiefs of police”, while another “read `Milford police chiefs, kings of Budweiser.’ Commonwealth v. Cristino, supra. In another footnote, the court explains that “[t]he record suggests that all accusations by the chief of the defendant following him occurred on public roads and never at the chief's home.” Commonwealth v. Cristino, supra.
Getting back to the opinion, the Appeals Court goes on to explain that to be
found guilty of stalking, it must be proven that a person `(1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with intent to place the person in imminent fear of death or bodily injury.’ Massachusetts General Law c. 265, § 43(a), as amended through St. 2010, c. 92, § 9. On appeal, the defendant argues that there was insufficient evidence to prove: that his Facebook posts were `directed at’ either alleged victim; that he indicated an intent to physically threaten either of the officers; that the officers' fear was reasonable; and that he intended to communicate a threat of bodily injury. He further argues that his Facebook posts were constitutionally protected speech and that the judge erred in failing to instruct the jury on `true threats.’

In denying the defendant's motion for a required finding of not guilty, the judge ruled that `there was clear evidence to establish that these were true threats rather than protected speech under the First Amendment,’ and, therefore, there was sufficient evidence to allow a jury to determine each element of the stalking statute was met.
Commonwealth v. Cristino, supra.
The Appeals Court went on to explain that on
review of the judge's denial of the defendant's motion for a required finding of not guilty, `we determine whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged.’ Commonwealth v. Campbell, 378 Mass. 680, 686 (1979). A conviction may not `rest upon the piling of inference upon inference or conjecture and speculation.’ Commonwealth v. Mandile, 403 Mass. 93, 94 (1988). `[I]t is not enough for the appellate court to find that there was some record evidence, however slight, to support each essential element of the offense.'  Ibid., quoting from Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).

We conclude that the statements made by the defendant that were the basis for his convictions were constitutionally protected speech, and therefore could not be the basis for conviction. `[R]emarks about a local public official constituted political speech and were at the core of the speech that the First Amendment to the United States Constitution protects.’ Van Liew v. Stansfield, 474 Mass. 31, 38 (2016). See McIntyre v. Ohio Elections Commn., 514 U.S. 334, 346 (1995), quoting from Roth v. United States, 354 U.S. 476, 484 (1957)  (`Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people’). Although these types of public accusations may be `vehement, caustic, and sometimes unpleasantly sharp,’ New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), this form of political speech must remain `uninhibited, robust, and wide-open. Ibid.
Commonwealth v. Cristino, supra.
The Appeals Court went on with its analysis of “true threats” and the First Amendment:
`Nevertheless, “certain well-defined and narrowly limited classes of speech,” do not receive constitutional protection, including “true threats.”’ O'Brien v. Borowski, 461 Mass. 415, 422 (2012), quoting from Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 572(1942). See Watts v. United States, 394 U.S. 705, 708 (1979); Virginia  v. Black, 538 U.S. 343, 359 (2003). See also United States v. Alvarez, 132 S. Ct. 2537, 2544 (2012) (listing `true threats’ as among `historic and traditional’ categories of unprotected speech [citations omitted]). Comparing the definition of a true threat to the threat component of the stalking statute, we conclude that any verbal or written communication that qualifies as a threat as defined in the statute is also a true threat, and therefore is not entitled to protection under the First Amendment. See Commonwealth v. Walters, 472 Mass. 680, 690-691 (2015).

`”True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.. . . The speaker need not actually intend to carry out the threat.’ Rather, a prohibition on true threats 'protect[s] individuals from the fear of violence' and 'from the disruption that fear engenders,' in addition to protecting people 'from the possibility that the threatened violence will occur.”' Borowskisupra at 423, quoting from Virginia v. Black, supra at 359-360. This class of unprotected speech was developed `to help distinguish between words that literally threaten but have an expressive purpose such as political hyperbole, and words that are intended to place the target of the threat in fear, whether the threat is veiled or explicit.’ Commonwealth v. Chou, 433 Mass. 229, 236 (2001). `The assessment whether the defendant made a threat is not confined to a technical analysis of the precise words uttered. Rather, the jury may consider the context in which the allegedly threatening statement was made and all of the surrounding circumstances.’

Commonwealth v. Sholley, 432 Mass. 721, 725 (2000).
Commonwealth v. Cristino, supra.
The court then explained that
[w]e compare the present case to two recent decisions by the Supreme Judicial Court. In Walterssupra at 694-697, the court vacated a stalking conviction stemming from a defendant's Facebook page for insufficient evidence. The defendant in Walters was convicted of stalking his former girl friend, who had begun dating another man. Immediately following their breakup, the defendant made multiple references about his guns to the victim in veiled apparent threats. See id. at 683. The defendant's conviction was based on his Facebook profile page posted several years after they broke up, which the victim was shown by her boy friend. The defendant's main profile picture showed him with a large gun across his lap. Elsewhere on his profile page the defendant wrote a quotation: `Make no mistake of my will to succeed in bringing you two idiots to justice.’ The Supreme Judicial Court held that the evidence of the defendant's intent was insufficient because `even if one reads the sentence in combination with the photograph of the defendant, any particular violent message that might be attributed to the defendant from the presence of these two elements on the same page is speculative.’ Id. at 695.

The defendant in Commonwealth v. Bigelow, 475 Mass. 554, 555 (2016), was convicted of two counts of criminal harassment after sending five letters to a town selectman and his wife. The letters were sent anonymously and were riddled with personal insults and vulgarities, but the crux of the letters was criticism aimed at the selectman's ability to perform his job as a public official. In determining that there was insufficient evidence to support the defendant's conviction as it related to his actions against the selectman, the Supreme Judicial Court noted that his position as a government official impacted the reach of the defendant's First Amendment protections. `Because these letters were directed at an elected political official and primarily discuss issues of public concern -- [the selectman]'s qualifications for and performance as a selectman -- the letters fall within the category of constitutionally protected political speech at the core of the First Amendment.’ Id. at 562. `Where matters of public concern are the focus -- that is, “any matter of political, social, or other concern to community” -- the First Amendment protections are often more rigorous than when matters of private significance are at issue.’ Ibid., quoting from Snyder v. Phelps, 562 U.S.443, 453 (2011). Accordingly, since `the essence of the conduct was speech, and in particular, constitutionally protected speech,’ there was insufficient evidence to support his criminal harassment conviction as it related to the selectman. Id. at 561.
Commonwealth v. Cristino, supra.
The Appeals Court then began the process of announcing its analysis of the issues in this case and its ruling on them:
Here, we conclude that the judge erred in qualifying the defendant's Facebook posts as `true threats,’ and therefore unprotected speech. True threats include both `direct threats of imminent physical harm’ and `words or actions that -- taking into account the context in which they arise -- cause the victim to fear such [imminent physical] harm now or in the future.’ Van Liew, 474 Mass. at 37, quoting from O'Brien, 461 Mass. at 425. Having reviewed the Facebook postings that were the grounds for the defendant's convictions and having considered the context of the videos, we conclude that they did not constitute threats of the kinds of unlawful acts of violence that render speech unprotected. See O'Brien, supra at 423.

Rather, the defendant's posts `primarily discuss issues of public concern,’ as they are clearly directed at exposing what the defendant considered to be shortcomings in the chief's and deputy chief's ability to properly perform their public positions. See Bigelow, supra at 562. In accusing the chief and deputy chief of drinking on the job, spending time with known local criminals, and generally being corrupt, the defendant's videos were obviously attacking their capacity to effectively serve as police officers. Statements taken individually after being parsed from the videos as a whole -- such as the chief's testimony that he took the defendant's statement that he was going back to `old school’ to mean the defendant was going to physically assault him -- are too remote and speculative to support a determination that the speech was unprotected. See Walters, 472 Mass. at 695. As such, the judge erred in determining that the defendant's speech in the videos constituted `true threats.’

The Supreme Judicial Court has held that `any verbal or written communication that qualifies as a threat as defined in the statute is also a 'true threat,' and therefore is not entitled to protection under the First Amendment.’ Walters, supra at 691. Accordingly, as we have already concluded that the evidence introduced by the Commonwealth did not rise to the level of a true threat, the threat component of the stalking statute cannot be met. The judge's denial of the defendant's motion for a required finding of not guilty was therefore erroneous, as the defendant's speech was protected by the First Amendment and an essential element of the charged offense is not supported by the evidence.

Judgments reversed.

Verdicts set aside.

Judgments for defendant.      
Commonwealth v. Cristino, supra.


Friday, July 21, 2017

Grand Theft, “Unlawful Use of a Computer System” and the Eighth Amendment

This post examines a recent opinion from the Supreme Court of South Dakota: State v. Krause, 894 N.W.2d 382 (2017). The court begins the opinion by explaining that
[t]win brothers Ryan Alan Krause and Brian Michael Krause appeal the circuit court's imposition of four consecutive, two-year sentences on each brother for multiple convictions of unlawfully using a computer system. The Krauses first argue their sentences violate the Eighth Amendment's prohibition against cruel and unusual punishment. 
State v. Krause, supra.
The Supreme Court goes on to explain how, and why, the prosecution arose:
In 2014, the Krauses were both employed in information-technology positions in Milbank. Brian worked for Valley Queen Cheese, and Ryan worked for Big Stone Therapies. Valley Queen Cheese had contracted with the Xerox Company to supply toner cartridges. Under the agreement, Xerox maintained ownership of a cartridge even while it was in Valley Queen Cheese's possession. In order to protect its property interest in leased cartridges, Xerox maintains a security division that monitors the internet for the sale of such consumables.

In January 2014, Xerox's security division discovered some of its toner cartridges posted for sale on the internet. The cartridges had been assigned to Valley Queen Cheese and were offered for sale by someone using the email address Brian.Krause1@html.com. Xerox purchased the cartridges and made similar purchases from the same seller in April 2014. Afterward, the seller offered to sell Xerox additional property worth $5,800 for the price of only $600. After this exchange, Xerox notified the Milbank Police Department.

The subsequent investigation uncovered a scheme in which the Krauses stole equipment from both Valley Queen Cheese and Big Stone Therapies and sold it on the internet. An internal investigation conducted by Valley Queen Cheese revealed that approximately $180,000 in equipment had been stolen by the Krauses. The stolen equipment included: toner, toner cartridges, computers, computer monitors, printers, phones, electronic equipment, and other miscellaneous items of inventory. The Krauses had also taken additional electronics from Big Stone Therapies.

In addition to stealing company property, the Krauses also accessed sensitive and private information. On December 27, 2013, the Krauses accessed the restricted database of Valley Queen Cheese's accounting department and copied the 2013 payroll statement, which included the ID numbers, salaries, benefits, accrued leave, bonus payments, mailing addresses, and bank-account numbers of its employees. On July 1, 2014, Brian accessed the email account of the chief financial officer (CFO) and copied an email containing a local businessman's development-loan application, which included the businessman's taxpayer ID number, social security number, underwriting documents, personal financial statement, and business financial statement. On July 23, 2013, Brian accessed the CFO's personal files and copied the personal financial statements of the CFO and the chief executive officer. On May 31, 2013, and February 12, 2014, Brian accessed the CFO's and IT administrator's email accounts and used their information to access the CFO's and administrator's online banking records. In each of the foregoing instances, Brian shared and discussed the information he accessed with Ryan.
State v. Krause, supra.
The Supreme Court goes on to explain how, and why, the Krause brothers came to be charged:
On July 10, 2015, the Krauses entered into identical plea agreements with the State. The Krauses agreed to pay restitution to Valley Queen Cheese and Big Stone Therapies in the amount of $80,000 and to sign over the title to a jointly owned pontoon boat. In exchange, the State agreed to limit charges to one count each of grand theft for the property taken and four counts each of unlawfully using a computer system. The State also agreed to recommend that the sentences for unlawfully using a computer system run concurrent with the sentence for grand theft. Pursuant to these agreements, the State filed separate complaints against the Krauses on July 14. Each complaint alleged one count of grand theft under [SouthDakota Codified Laws] 22–30A–1 and four counts of unlawfully using a computer under [South Dakota Codified Laws] 43–43B–1(2).

The Krauses entered guilty pleas to all charges on July 20, 2015, and the circuit court sentenced them on September 15, 2015. Focusing on punishment and deterrence, the circuit court sentenced each of the Krauses to four years imprisonment for grand theft. The court also sentenced the Krauses to two years imprisonment for each count of unlawfully using a computer system. Additionally, the court ordered all sentences run consecutively.
State v. Krause, supra.
The Supreme Court went on to explain that in their “consolidated appeal”, which I assume means their individual appeals were consolidated, probably for the interests of maintaining consistency in the legal analysis applied to both appeals, the defendants raised two issues: 
1. Whether their consecutive sentences for unlawfully using a computer system violate the Eighth Amendment's prohibition against cruel and unusual punishment.

2. Whether the circuit court erred by imposing sentences of imprisonment instead of probation for the unlawful-use-of-computer-system convictions.
State v. Krause, supra. In a footnote appended to the last word in the description of the first issue, the Supreme Court noted that the brothers did not appeal their convictions for grand theft. State v. Krause, supra.
The Supreme Court therefore began its analysis of the brothers’ arguments concerning their sentencing. State v. Krause, supra.  It analyzed the arguments in the order in which they are given above.
The Court therefore began its analysis of the Krauses’ first issue by explaining that
`[w]e generally review a circuit court's decision regarding sentencing for abuse of discretion.’ State v. Rice, 2016 S.D. 18, ¶ 11, 877 N.W.2d 75, 79 (quoting State v. Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d 475, 486). `However, when the question presented is whether a challenged sentence is cruel and unusual in violation of the Eighth Amendment, we conduct a de novo review to determine whether the sentence imposed is grossly disproportionate to the offense.’ Id. (quoting Chipps, 2016 S.D. 8, ¶ 31, 874 N.W.2d at 486).

The Krauses argue that their sentences for unlawfully using a computer are grossly disproportionate to the circumstances of their crimes. They contend that the circumstances of their crimes were minor. They also contend their crimes are mitigated because: (1) neither of the Krauses has a substantial criminal record, (2) they cooperated with law enforcement in interviews and by surrendering computer evidence, (3) they immediately enrolled in counseling, and (4) they made restitution prior to sentencing. However, the Krauses' mitigation arguments are entirely irrelevant to an Eighth Amendment analysis. The Supreme Court has rejected individualized sentencing in noncapital casesHarmelin v. Michigan, 501 U.S. 957, 995 (1991); accord Rice, 2016 S.D. 18, ¶ 18 & n.3, 877 N.W.2d at 81–82 & n.3. Therefore, we simply determine whether the sentences imposed appear grossly disproportionate to the offenses committed.

To determine whether a sentence is grossly disproportionate to an offense, we first compare `the gravity of the offense and the harshness of the penalty.’ Chipps, 2016 S.D. 8, ¶ 38, 874 N.W.2d at 488 (quoting Solem v. Helm, 463 U.S. 277, 290–91, 103 S.Ct. 3001, 3010, 77 L.Ed.2d 637 (1983)). `This comparison rarely `leads to an inference of gross disproportionality’ and typically marks the end of our review.’ Id.¶ 38, 874 N.W.2d at 489 (quoting State v. Garreau, 2015 S.D. 36, ¶ 9, 864 N.W.2d 771, 775). `If the penalty imposed appears to be grossly disproportionate to the gravity of the offense, then we will compare the sentence to those “imposed on other criminals in the same jurisdiction” as well as those ‘imposed for commission of the same crime in other jurisdictions.’ Id. (quoting Solem v. Helm, 463 U.S. at 291, 103 S.Ct. at 3010).
State v. Krause, supra.
The court goes on to explain that the Krauses pleaded guilty to
unlawfully using a computer system. Among other instances, this offense occurs when a person `[k]nowingly obtains the use of, accesses, or exceeds authorized access to, a computer system, or any part thereof, without the consent of the owner, and the access or use includes access to confidential data or material[.]’ [South Dakota Codified Laws] 43–43B–1(2).This particular variation of the offense violates both property and privacy rights of the victim. As noted above, supra ¶ 5, the Krauses accessed and discussed payroll data, bank accounts, personal financial statements, email, and other confidential data belonging to a number of people. The Krauses argue that because they did not further disseminate the confidential information they accessed or use it to extort their victims, their crimes are not representative of the most serious of their kind.

Yet, the offense for which the Krauses were convicted addresses only obtaining the use ofaccessing, or exceeding authorized access to a computer system, without the consent of the owner, to access confidential data or material. Id. The fact that the Krauses could have committed additional crimes but did not do so does not diminish the gravity of the crimes that occurred. Regardless, these crimes already lie on the lower end of the gravity-of-offense spectrum. A two-year sentence correspondingly lies on the low end of the spectrum of punishments. Therefore, considering the property and privacy interests that the Krauses violated, their sentences do not appear grossly disproportionate to their offenses, and our review ends. See Chipps, 2016 S.D. 8, ¶¶ 43–45, 874 N.W.2d at 490–91 (upholding five-year sentence of imprisonment for four occurrences of identity theft).
State v. Krause, supra. (emphases in the original).
The Court went on to address the other issue raised in the defendants’ appeal, explaining that
[n]ext, the Krauses argue the circuit court erred by deviating from a presumptive sentence of probation. At the time they were sentenced, [South Dakota Codified Laws] 22-6-11 generally required a sentencing court to impose a sentence of probation for the commission of a Class 5 or 6 felony. State v. Orr, 2015 S.D. 89, ¶ 9, 871 N.W.2d 834, 837. Deviation from a presumptive sentence of probation is permitted only if the sentencing court finds aggravating circumstances posing a significant risk to the public that requires such a departure. Id. 

The Krauses contend the circuit court's focus on punishment and deterring future offenders does not establish a significant risk to the public sufficient to deviate from the presumptive sentence of probation. They additionally contend that even if aggravating circumstances were present, the circuit court erred by not stating those circumstances in the judgment of conviction.  The State responds that because the circuit court imposed a sentence of imprisonment on the Krauses for grand theft, [South Dakota Codified Laws] 22-6-11 does not apply to the remaining offenses.
State v. Krause, supra.
The Supreme Court continued its analysis, explaining that
[w]e recently reviewed the constitutionality of [South Dakota Codified Laws] 22-6-11 in State v. Orr. In that case, a defendant already sentenced to imprisonment in the penitentiary received additional sentences for consecutive penitentiary time and a concurrent term of probationOrr, 2015 S.D. 89, ¶ 2, 871 N.W.2d at 835. The defendant appealed, arguing he could not be subjected to simultaneous supervision by the executive and judicial branches. Id. We agreed and held: `The judicial branch cannot give itself authority over offenders that are in the state penitentiary by sentencing a person to simultaneous probation and penitentiary sentences.’ Id. ¶ 10, 871 N.W.2d at 838. Consequently, a `sentencing court cannot grant probation where a defendant receives penitentiary time beyond that authorized by [South Dakota Codified Laws] 22-6-11  23A–27–18.1 and [South Dakota Codified Laws] 23A–27–18.2.’ Id. ¶ 12, 871 N.W.2d at 838.

The Krauses did not respond to the State's argument and have not offered any analysis on whether Orr applies to the present case. We note that Orr involved concurrent sentences of imprisonment and probation, whereas the current case involves consecutive sentences. Therefore, this case does not involve the same dual-supervision problem presented in Orr. Even so, other statutes also suggest that once the executive branch assumes supervision of an offender, he does not return to the judicial branch for supervised release. By statute, a sentencing court does not have discretion to impose a sentence of probation consecutive to a term of imprisonment. See [South Dakota Codified Laws §] 22–6–6.1. And while a court can supervise an offender `with an entirely suspended penitentiary sentence’ in some cases, it may not do so if `the entirely suspended penitentiary sentence is concurrent or consecutive to an additional penitentiary sentence[.]’ [South Dakota Codified Laws §] 23A-27-18.4 . In such a case, the offender remains under the supervision of the executive branch. Id.
State v. Krause, supra.
The court then takes up a related issue, explaining that in
light of the foregoing, it appears the circuit court did not have the authority—let alone an obligation—to sentence the Krauses to probation for their unlawful-use-of-computer-system convictions. As the State correctly points out, the Krauses were each sentenced to a four-year term of imprisonment in the penitentiary for their grand-theft convictions. The Krauses have not appealed these sentences. Thus, because the Krauses were otherwise committed to the supervision of the executive branch, subsequent supervision by the judicial branch was not an option, and probation was no longer the presumptive sentence under [South Dakota Codified Laws §] 22–6–11. Because probation was not the presumptive sentence, the circuit court's decision to impose a penitentiary sentence was necessarily not a deviation from under [South Dakota Codified Laws §] 22–6–11, and the circuit court was not required to state aggravating circumstances in the judgment of conviction.
State v. Krause, supra.
The Supreme Court then articulated its holding in the case:
The sentences the Krauses received for unlawfully using a computer system do not appear grossly disproportionate to the gravity of their offenses; therefore, the sentences are not cruel and unusual. Because the Krauses were sentenced to imprisonment in the penitentiary, the circuit court was not required or authorized to sentence the Krauses to probation for their unlawful uses of a computer system. Therefore, the circuit court did not err by imposing two-year sentences of imprisonment for each such conviction.
We affirm.
State v. Krause, supra.


Wednesday, July 19, 2017

“Engaging in a Child Exploitation Enterprise,” the Laptop and Forfeiture

“Engaging in a Child Exploitation Enterprise,” the Laptop and Forfeiture

This post examines a recent opinion from the U.S. District Court for the Western Division of North Carolina: U.S. v. Chase, 2017 WL 1966747 (2017). The U.S. District Court Judge who has the case begins the opinion by explaining that
THIS MATTER is before the Court on the United States of America's Motion for Preliminary Order of Forfeiture. The United States requests, pursuant to 18 U.S. Code § 2253(a)(3)Fed.R. Crim. P. 32.2(b), and the Special Verdict (Doc. 99) on forfeiture, that this Court order forfeiture of the following properties that the United States contends constitute properties used or intended to be used to commit or promote the commission of the Count One 18 U.S. Code § 2251A(g) offense of engaging in a child exploitation enterprise and the Count Three 18 U.S. Code § 2251(d) offense of advertising child pornography:

• One ASUS laptop, serial number E1N0CV090739012 (hereafter, “ASUS Laptop”);
• One Cruzer 128GB thumbdrive (hereafter, `Cruzer Thumbdrive’); and
• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:

THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.
(hereafter, `Naples Residence’).
U.S. v. Chase, supra. If you would like to learn more about criminal forfeiture in federal criminal cases, check out this article.
The opinion goes on to explain how, and why, the prosecution arose:
On August 19, 2015, a Grand Jury in the Western District of North Carolina returned a Second Superseding Indictment (Doc. 31; hereafter, `Indictment’) against Defendant and others, charging Defendant with, inter alia, engaging in a child exploitation enterprise as set forth in Count One; a conspiracy to advertise child pornography as set forth in Count Two; advertising child pornography as set forth in Count Three; transporting child pornography as set forth in Count Four; transporting child pornography as set forth in Count Five; transporting child pornography as set forth in Count Six; and possessing child pornography as set forth in Count Seven.

The charges were based on Defendant's role as administrator of a worldwide child pornography website known as `Playpen’ on the TOR network on the so-called `dark-web.’ The Government contends that Playpen facilitated the worldwide sharing of in excess of approximately 100,000 in images among in excess of 150,000 Playpen users.

The Indictment also contained a `Notice of Forfeiture and Finding of Probable Cause’ whereby the Grand Jury found probable cause that the Naples Residence was subject to forfeiture. Defendant resided at the Naples Residence during the course of the offenses. Further, the Naples Residence was titled to Defendant and his deceased spouse.
U.S. v. Chase, supra.
The opinion then explains that Chase
pled not guilty and elected a jury trial. Ahead of trial, the Government filed a Notice of Proposed Jury Instructions and Verdict Sheet (Doc. 88) and a Trial Brief (Doc. 90), informing Defendant and the Court that the Government intended to pursue forfeiture of, not only the Naples Residence, but also the ASUS Laptop and Cruzer Thumbdrive, all such forfeitures based on the allegation that Defendant used these items to promote his Count One, Count Two, and Count Three offenses. Defendant elected (Doc. 89) to retain the Jury to decide forfeiture.
U.S. v. Chase, supra.
The District Court Judge went on to explain that
[d]uring the criminal trial, the Government introduced and the Court admitted evidence that established, among other facts, the following:

• On multiple occasions, from the Naples Residence, Defendant logged-in to an email account that he used to register Playpen;

• On at least one occasion, from the Naples Residence, Defendant accessed a PayPal account that he used to fund Playpen;

• On multiple occasions, from the Naples Residence, Defendant logged in to Playpen; and

• At execution of a Search Warrant by law enforcement at the Naples Residence, Defendant fought entry by law enforcement and, once law enforcement entered, law enforcement discovered the ASUS Laptop on, logged-in to the server hosting Playpen with Defendant logged-in as Playpen administrator, with the Cruzer Thumbrive inserted into the ASUS Laptop. Further, law enforcement discovered on the ASUS Laptop a browser history that reflected a history of access to the administrative forum of Playpen. Law enforcement also discovered passwords and administrative instructions for Playpen on the Cruzer Thumbdrive.
U.S. v. Chase, supra.
The opinion goes on to explain that
[b]ased on, among other evidence, the above-referenced evidence, the Jury found (Doc. 98) Defendant guilty on all counts except for Count Two, on which the Jury was instructed not to return a verdict should the Jury find Defendant guilty on Count One. As to the Count One offense, the Jury found that predicate offenses included advertising child pornography from 2014 through 2015; transporting child pornography on February 1, 2015; transporting child pornography on October 12, 2014; transporting child pornography on September 26, 2014; and possession of child pornography on August 19, 2014 and February 17, 2015. Simply put, the Jury found Defendant guilty of numerous egregious crimes, wide-spread in their duration and impact.

Further, following brief argument by the Government and Defendant, the Jury also returned a Special Verdict (Doc. 99) for forfeiture of the Naples Residence, ASUS Laptop, and Cruzer Thumbdrive. The Special Verdict constituted a finding by the Jury that there was a nexus between Counts One and Three, and the properties. The Government now requests that this Court issue a Preliminary Order of Forfeiture for these same items.
U.S. v. Chase, supra.
The District Court Judge then goes on to outline the “legal conclusions” that he has decided apply to the facts in this case. U.S. v. Chase, supra. He begins by explaining that
Title 18 U.S. Code §2253(a)(3) and Federal Rules of Criminal Procedure Rule 32.2(b)(1)  provide for preliminary forfeiture of property used or intended to be used to commit or promote violation of the child exploitation enterprise statute as charged in Count One and a violation of the advertising child pornography statute as charged in Count Three. Forfeiture is appropriate upon a court finding of a nexus, or connection, between the property and the violations. Fed. R. Crim. P. 32.2(b)(1)(A). The finding may be based on evidence already in the record and any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable. Fed. R. Crim. P. 32.2(b)(1)(B). The burden of proof on forfeiture is preponderance of the evidenceSee, e.g., United States v. Cherry, 330 F.3d 658, 669 (U.S. Court of Appeals for the 4th Circuit 2003). Here, the preponderance standard is easily satisfied.

Specifically, at the trial of this matter, the Government introduced evidence, detailed above, that, on numerous occasions, Defendant accessed an email account from the privacy of the Naples Residence so that he could operate Playpen; that Defendant accessed a PayPal account from the privacy of the Naples Residence so that he could operate Playpen; that, on numerous occasions, Defendant accessed the Playpen server from the privacy of the Naples Residence; and that Defendant was operating Playpen via the ASUS Laptop and Cruzer Thumbrive, in the privacy of the Naples Residence, when law enforcement executed the Search Warrant. Further, the Jury returned a Special Verdict of forfeiture based on this evidence.
U.S. v. Chase, supra.
The judge concludes his opinion by explaining that the
Government submits that such evidence, along with the Verdict and Special Verdict, are more than sufficient to establish by a preponderance of the evidence that the assets were used or intended to be used to commit or promote the commission of the Count One and Count Three offenses. 18 U.S. Code § 2253(a)(3); see also United States v. Ownby, 926 F.Supp. 558, 566 (U.S. District Court for the Western District of Virginia 1996 (Overruling defendant's objection that forfeiture of residence in which he used computer to possess, receive, and transport child pornography was excessive; reasoning that `it is clear that the privacy afforded by the dwelling was essential to Ownby's commission of the charged offenses.’), aff'd, 131 F.3d 138 (4th Circuit Court of Appeals 1997) (Table); United States v. Wilk, 2007 WL 2263942, at *1 (S.D. Fl. Aug. 6, 2007) (same in case of forfeiture of residence when in excess of 90 images were on computer in home); cf. United States v. 7046 Park Vista Road, 537 F.Supp.2d 929, 940–41 (S.D. Ohio 2008)(determining, on Government's summary judgment motion in civil forfeiture case, that residence in which Section 2251 and 2251 and 2252 occurred was forfeitable). The Court agrees.

It is, therefore ORDERED:

1. Based upon Defendant's convictions, the trial evidence, the Verdict, and the Special Verdict, the United States is authorized to take and maintain possession of the following property belonging to Defendant, and the property is hereby forfeited to the United States for disposition according to law, provided, however, that such forfeiture is subject to any and all third party claims and interests, pending final adjudication herein:

• One ASUS laptop, serial number E1N0CV090739012;

• One Cruzer 128GB thumbdrive; and

• The real property at 3570 15th Avenue, SW, Naples, Florida, identified in a deed to Steve Chase and Barbara Chase, husband and wife, recorded at Book 2337, Page 0771 of the Collier County Clerk of the Circuit Court, also known as Parcel 37988440001, and more particularly described as follows:

THE EAST 105' OF THE EAST 180' OF TRACT 90, UNIT 27, GOLDEN GATE ESTATES, ACCORDING TO A PLAT THEREOF RECORDED IN PLAT BOOK 7, PAGES 17 AND 18, OF THE PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA.

2. Pursuant to 21 U.S. Code §853(n)(1), the Government shall publish notice of this order; notice of its intent to dispose of the property in such manner as the Attorney General may direct; and notice that any person, other than the Defendant, having or claiming a legal interest in any of the above-listed forfeited property must file a petition with the Court within thirty days of the final publication of notice or of receipt of actual notice, whichever is earlier. This notice shall state that the petition shall be for a hearing to adjudicate the validity of the petitioner's alleged interest in the property, shall be signed by the petitioner under penalty of perjury, and shall set forth the nature and extent of the petitioner's right, title or interest in the forfeited property and any additional facts supporting the petitioner's claim and the relief sought. The United States may also, to the extent practicable, provide direct written notice to any person known to have alleged an interest in property that is the subject of this Order of Forfeiture, as a substitute for published notice as to those persons so notified.

3. Upon adjudication of all third-party interests, this Court will enter a Final Order of Forfeiture.

SO ORDERED.
U.S. v. Chase, supra.