New York Federal Criminal Practice Blog
June 18, 2008

EDNY Judge Issues Notable Decision on Computer Searches, Defendant’s Offer to Take a Polygraph, and Jury’s Knowledge of Potential Penalties

As an agent points out in United States v. Graziano, 07-cr-508 (JFB), 2008 WL 789886 (E.D.N.Y. March 20, 2008), computers can be repositories of one’s most private, even subconscious, thoughts.  Asked why he examined Internet history files when searching a defendant’s computer for gambling records, he explained they “help[ ] to give you what the user was thinking about . . . at this particular time.”  As a result, the agent uncovered and tagged an AOL search entitled “Arson RICO laws,” ostensibly for use in the gambling investigation, because RICO is “a federal statute that is used to prosecute illegal gambling offenses.”  In the end, however, it became key evidence in a parallel investigation that led to an indictment charging the defendant with arson of a competitor’s business.

The Computer Search

The defendant moved to suppress the search of the AOL search records as beyond the scope of the search warrant, which authorized a search for gambling records.  In denying the motion, the district judge reached two notable conclusions:

(a)     Overbreadth

First, the Court rejected the defendant’s challenge that the search warrant was overbroad because it failed to include a “search protocol,” delineating the particular computer files to be searched and the search terms that could be utilized.  Noting that “courts are ill-suited to micromanage in advance how the computer will be searched,” the court emphasized, however, that in seeking the warrant, “law enforcement must establish the basis for searching the computer and particularize the evidence being sought during such search.”

But computers can contain warehouse loads of documents, including the equivalent of boxes of photographs, personal e-mails and Internet search histories.  It is hard to see how any of this information could yield the specific documents sought in this search warrant: “records of bets, accounts and transactions, including betting slips, made in the course of illegal bookmaking activity.”  Thus, where is the prejudice from precluding law enforcement in advance from searching those files (and denying the agents an opportunity to turn the computer search into a general fishing expedition)? 
(b)        Reasonableness

The court also rejected the defendant’s argument that the manner of the search here was unreasonable, because the search involved a cursory review of every file, including Internet search files, and was not confined solely to obvious gambling files and documents.  Citing Supreme Court precedent that a brief review of apparently innocuous documents is permissible in searches for papers, the district court held that “it was entirely reasonable for the [forensic examiner] to engage in a cursory review of files and documents, by opening them, to determine whether they contained evidence of illegal gambling that was within the scope of the warrant.”

The court found that the bookmarking of the “arson RICO laws” search, once it had been uncovered, was reasonable given the agent’s credible testimony that he saved the evidence because gambling is prosecuted under the federal RICO statute (though, perhaps more plausibly, the evidence comes under the “plain view” exception to the warrant requirement).

The more critical issue is whether it was reasonable for the agent to search records containing Internet search histories at all (such files are listed with the designation “htm” or “html,” and are thus readily identifiable to the examiner in advance as Internet search history files).  The district court credited the agent’s “reasonable belief that evidence related to an illegal gambling operation might be contained in AOL search records.”  That may be true (searches for sports scores, etc.), but, as noted above, the search warrant here did not authorize a search for all documents related to an illegal gambling operation.  Rather, it specified particular gambling-related records that may be searched for and seized, documents that would not be contained in files with Internet search histories. 

The court does not address how Internet search records could reasonably be related to or produce the specific gambling records at issue.  (The case also does not address another interesting issue – raised by Judge Weinstein in United States v. Polizzi, 2008 WL 1886006 (E.D.N.Y. April 1, 2008) – that is, whether the searched files could have been independently obtained from AOL itself, as some courts have held that an Internet user can have no expectation of privacy in their Internet search histories).

Defendant’s Offer to Take a Polygraph

In the same decision, the court ruled on an issue of first impression in the Second Circuit - whether the defendant’s offer during an interview with the prosecutor to take a polygraph should be admitted at trial as consciousness of innocence.  Granting the government’s motion in limine to preclude the evidence, the found the offer had no probative value because it was not made in the context of an agreement that the results of the polygraph, whatever they were, would be admissible.  “Given the lack of adverse consequences from such an offer, there is no way to distinguish between the offer being made by an innocent defendant and the offer being made by a guilty defendant for purely strategic reasons.”

Advising Jury of Potential Penalties

Finally, in an interesting counterpoint to Judge Weinstein’s decision in Polizzi, the court ruled that the defendant could not cross-examine the cooperating witnesses as to the mandatory minimum sentences they had faced prior to their plea agreements, because “such reference would advise the jury as to the punishment the defendant is facing.”

6/22/08 Update Richard Willstatter adds this comment on Graziano's preclusion of cross-examination regarding the mandatory minimum sentences faced by the cooperating witness:  While Judge Bianco permitted some cross concerning potential sentences faced by the cooperating witnesses, the harsh mandatory minimum is at the heart of the witness's motive to curry favor with the government. Judge Bianco cites the Second Circuit's decision in United States v. Rosa, 11 F.3d 315 (2d Cir.1993), where the Court held that it was well within the trial judge's discretion to limit cross-examination on the "the vagaries of the sentencing guidelines." There is, however, nothing vague about mandatory minimums, and therefore, Rosa does not dictate the result the court reached in Graziano.  In fact, Second Circuit precedent dictates the opposite conclusion.  See United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990) (holding that cross-examination is not improperly curtailed if the jury is in possession of facts sufficient to make a discriminating appraisal of a witness's credibility); Cotto v. Herbert, 331 F.3d 217, 248-249 (2d Cir. 2003)("The Confrontation Clause is violated when a defendant is 'prohibited from engaging in otherwise appropriate cross-examination designed . . . to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness'") (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986)); Howard v. Walker, 406 F.3d 114 (2d Cir. 2005)("while the right to cross-examination is not absolute, it is effectively denied when a defendant is prohibited from 'exposing to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness'") (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).  If a defendant is prevented from exposing crucial facts that implicate the witness' reliability, he "states a violation of the Confrontation Clause."  Van Arsdall, 475 U.S. at 680.

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