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Two Tennessee Men Sentenced to Prison for Possession of Child Pornography

August 26, 2013, by The McKellar Law Firm, PLLC

Persons charged with violation of federal child pornography laws can face severe sentences, as two Tennessee men are now fully aware. Charles Wesley Bush, of Knoxville, Tenn., and Patrick Shane O'Ferrall, of Piney Flats, Tenn., were recently sentenced to prison time for possession of child pornography and other related charges.

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The Honorable Thomas A. Varlan, Chief U.S. District Court Judge, sentenced Bush on Aug. 20, 2013 to serve 151 months in federal prison for both the possession and distribution of child pornography. In October 2012, Bush was arrested pursuant to a four-count indictment charging him with distribution and possession of child pornography, and he ultimately pleaded guilty in March 2013. According to a press release from the U.S. Attorney's Office, Bush caught the eye of federal authorities through his use of the internet to distribute child pornography. A search of Bush's computer showed that he possessed 232 images and 299 video files of child pornography.

In another Eastern District of Tennessee case, Judge Leon Jordan sentenced Patrick Shane O'Ferrall of Piney Flats, Tenn., to a statutory maximum sentence of 120 months in prison. O'Ferrall was also ordered to pay restitution to a victim, whose image was among the child pornography depictions. According to a U.S. Attorney's Office press release, O'Ferrall's investigation began when, following his arrest for domestic assault, his spouse discovered pornographic images of young children on CDs among his belongings. Officers then confiscated computers and other forms of electronic media from O'Ferrall's residence, and the seized items contained over 3,500 images containing child pornography and DVDs containing videos of young children engaged in sexual acts.

As these cases show, child pornography can carry severe penalties. If you are suspected of being involved with a federal sex crime, act immediately to consult with an experienced federal criminal defense attorney.

Florida Man Pleads Guilty to Cyberstalking for Posting Nude Pics on Facebook Profiles

August 24, 2011, by The McKellar Law Firm, PLLC

Earlier this month, Tampa, Florida man pled guilty to cyberstalking and unauthorized access to a computer, according to an article in Tampa Bay Online. Joseph Campbell gained access to over 350-500 email accounts by sending out fake emails claiming that the recipients had received greeting cards. The emails would then instruct the recipients to type in their email addresses and passwords. After gaining access to the email accounts, Campbell took any nude or semi-nude photos found in a victim's email account and put it as their Facebook profile picture. Campbell also sent the photos as well as any lewd videos of the victims to different websites that he posted. Under the plea agreement, Campbell admitted that he posted the victims' photos and videos to harass and cause the victims to suffer emotional distress.

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A person can be found guilty of cyberstalking under 18 U.S.C.A. § 2261A, which deals with interstate stalking in general. According to the statute, a person can be charged with stalking if they "travel[] interstate ... with the intent to kill, injure, harass, or intimidate another person," and doing so "places the person in reasonable fear of death of, serious bodily injury to, or causes substantial emotional distress to that person." Id. A person may also be found liable if reasonable fear of death, serious bodily injury, or emotional distress happens to a person's immediate family member, spouse, or intimate partner.

Being found guilty of interstate stalking or cyberstalking can have harsh results. With 18 U.S.C.A. § 2261 outlining the punishments for violating 18 U.S.C.A. § 2261A, if a person's death results, a defendant can be sentenced to life or any term of years. If there is a life-threatening bodily injury to the victim, then the sentence will be no more than 20 years. If the bodily injury is serious or a dangerous weapon is used in the offense, then the sentence will be 10 years. If emotional distress or any other result happens, then the sentence will be no more than 5 years.

To be found guilty under 18 U.S.C.A. § 2261A, actual "intent" needs to be proven. In U.S. v. Infante, No. 10-6144M, 2010 WL1268140, at *1 (D. Ariz. Mar. 30, 2010), the Federal District Court found that the defendant was not guilty since there was no proof that the defendant acted with a "specific purpose to cause an adverse emotional reaction to the victim." Id. at *5. While the defendant sent flowers, e-mails and even traveled from Arizona to New York unannounced after the victim informed the defendant that she never wanted to see him again, there was no evidence that the defendant intended to harass her. None of the e-mails sent had any threatening statements, and no threatening actions were ever taken towards the victim.

In U.S. v. Jordan, 591 F.Supp.2d 686 (S.D.N.Y. 2008), the Federal District Court came to a different conclusion. In this case, the defendant made false internet postings offering sex and housing using the victim's telephone number, as well as told the victim that he would "beat up her ex-boyfriend." Id. at 708. While the defendant claimed that his only motive was to get the victim to return to him, the court found that this was not a defense when he also intended to cause the victim to suffer substantial emotional distress or have a reasonable fear of bodily injury.

Anticipatory Obstruction of Justice is a New Weapon in the Arsenal of Federal Prosecutors

Last year, a University of Tennessee student garnered national headlines after he accessed Sarah Palin's email account while she was governor of Alaska and the Republican vice presidential candidate. The student, David Kernell, accessed Palin's Yahoo email account without having permission to do so. In November 2010, Kernell was sentenced to a prison term of one year and a day. For a federal criminal defense attorney, one of the noteworthy aspects of this case is that the majority of the sentence was not imposed for illegally accessing the email account; it was for anticipatory obstruction of justice.

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There are several federal provisions relating to obstruction of justice, but 18 U.S.C. § 1519 is particularly powerful. Most obstruction provisions require prosecutors to prove that a defendant's conduct was intended to disrupt a particular proceeding or investigation. Section 1519, enacted in 2002, eases the government's burden tremendously by removing the requirement that the obstructive conduct be intended to influence a specific investigation. It merely requires that the obstructive conduct be done knowingly and "with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . or in relation to or contemplation of any such matter or case. . . ." In other words, there does not even have to be an investigation at the time the obstructive conduct takes place. If the defendant's conduct is motivated in part to obstruct an investigation if one occurs, then § 1519 applies.

After accessing Governor Palin's email, Kernell became concerned that his actions could be discovered by the police. According to court testimony, he then deleted files and records on his computer relating to his access of Palin's email account. Obviously, Kernell was unsuccessful. Kernell was indicted not only for illegally accessing Governor Palin's email, but also for obstruction under 18 U.S.C. § 1519. The court found that § 1519 did apply to Kernell's case because this provision does not require that there be an open investigation into the defendant's conduct; it merely requires that the defendant act in anticipation of such an investigation. Kernell's conviction under § 1519 for felony obstruction was a more serious matter than the misdemeanor conviction for actually accessing the email account.

Kernell's case is not the only high-profile case where prosecutors have used this powerful statute. In United States v. Alexander Wolff, et al., the defendants - a number of executives and several corporations - are charged with a conspiracy to illegally import less-expensive Chinese honey into the United States by misstating the country of origin. This was allegedly done in order to avoid paying the high import duties on Chinese honey; prosecutors charge the defendants did not pay approximately $80 million in duties and tariffs because of this scheme. The United States attorney has charged the defendants with violations of 18 U.S.C. § 1519 because the conspiracy involved filing false sales contracts and filing false records with the U.S. Department of Commerce, as well as destroying potentially incriminating documents and emails.

The consequences for violating this provision can be severe; there is a 20-year maximum prison term that undoubtedly appeals to some prosecutors. But the most significant aspect of this law from a prosecution standpoint is likely that there is no requirement under § 1519 to show that a defendant intended to obstruct a particular investigation, reducing the burden on the prosecution. These recent cases illustrate a previously unprecedented use of § 1519. Kernell and Wolff could prove to be bellwether cases if prosecutors continue to utilize this provision.

Sixth Circuit Tackles Valuation Under the Computer Fraud and Abuse Act

January 31, 2011, by The McKellar Law Firm, PLLC

Although the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030, has been alive and well for 25 years, Courts have varied in their approach on determining valuation under this statute. Under the CFAA, valuation plays a pivotal role in determining whether the crime will be treated as a misdemeanor or felony, the appropriate Sentencing Guidelines Range, and the amount of restitution.

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In United States v. Batti, 2011 WL 111745, (6th Cir., Jan 14, 2011), the Defendant was charged with violating the CFAA and particularly with improperly accessing information from a protected computer, in violation of 18 U.S.C. § 1030(a)(2)(C) and (c)(2)(B)(iii). Batti appealed the trial court's finding that the value of the information that he obtained exceeded $5,000 and the district court's order of $47,565 in restitution. The Sixth Circuit determined that the trial court properly used the "value of production" in determining the value of the information that Batti illegally took, and the Court further decided that the trial court did not abuse its discretion in ordering restitution in the amount of $47,565.

18 U.S.C. § 1030(a)(2)(C) sets out the prohibited conduct as follows:

(a) Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains ... (C) information from any protected computer ... shall be punished as provided in subsection (c) of this section.

Per the indictment, the prosecution sought a felony conviction by alleging, pursuant to subsection (B)(iii) of the CFAA, that Batti "obtained information valued in excess of $5,000.00." The only portion of this charge that Batti challenged in the court below was whether the value of the information that he obtained exceeded $5,000. The appellate court ultimately agreed with the trial court's valuation for both sentencing and restitution purposes.

Batti first argued that since he did not damage the stolen information, the "value of the information obtained" could not have exceeded $5,000. The Sixth Circuit echoed the view of the trial court by stating, "There simply is no requirement under the pertinent subsections of § 1030 that Defendant's unauthorized access must have led to any sort of loss, that the value of the information must have been diminished as a result of his conduct, or that he somehow must have profited from his actions. Rather, the trier of fact-in this case, the Court-is called upon only to determine the value of the information through some appropriate means."

Batti also argued that there was no "market value" to the information that was stolen, and accordingly, the court could not assess a value to the information. Again, the Sixth Circuit rejected this argument by stating, "We believe there is also no merit in this argument, because, as we explain below, although there may be no readily ascertainable market value for the video footage that Batti obtained, the cost of production of that footage was a permissible basis on which the district court could rely in determining whether the value of the information obtained exceeded $5,000."

The Sixth Circuit Court of Appeals concluded:

...where information obtained by a violation of § 1030(c)(2)(B)(iii) does not have a readily ascertainable market value, it is reasonable to use the cost of production as a means to determine the value of the information obtained. The district court here believed that the amount Campbell-Ewald paid for the "spots" or video footage that Batti later obtained could be viewed as the footage's market value, but the district court also recognized that footage of this type is not sold on a typical retail market. As a result, the district court believed that the amount that Campbell-Ewald paid for the footage could also be viewed as the cost of production for the development of advertisements or commercials. We see no error in this approach.

The Court acknowledged that the "value of production" method is not the only way to calculate value under the CFAA, and in fact, other circuits have not agreed with the analysis used by the Sixth Circuit. However, computer fraud attorneys in the Sixth Circuit should be aware of the implications of this ruling on a client's sentencing and restitution amounts.