Appellate Law

CA1: First Circuit really bends to say that tapes ?contain? photos (and some sentencing)

By S. COTUS

US v. Rogers, No. 06-2532.  In a child pr0n prosecution, the cops got a warrant for a house, specifying that they were to look for ?photos of [a minor child].?  They found a videotape.  He was charged in state court, and later in federal court.  He says that this exceeds the scope of the warrant because videotapes are not photographs.  They are not.  Photographs are not magnetic media.  Videotapes are.  Completely different process. The First seems to think that a hard drive, a tape, or any sort of digital or magnetic media is a ?container? for a photograph.  This is crap.  A container for photos is usually called a ?frame? or a ?wallet? or an ?album.?  This is the "common sense."  But the First has other ideas.  Whatever is on a tape or a hard drive is a reproduction or a rendering of something.  Likewise, a ?my money? but a ?representation? of my money (or my right to collect some money).  In fact, it is only because my bank is stable and the FDIC exists that I am pretty sure that I can get my money out of it. 

So, the First bends to help the cops.  Predictable.  The First calls everything else ?hypertechnical? with little analysis of the major philosophical or legal issues at stake.

What is sad about this, is that if you take their decision to its conclusion, natural persons are contained on hard drives and videotapes.  After all, if you think that a hard drive ?contains? a photo, you must conclude that a photo contains as person.  Therefore, guess what?  Your firm?s web server (which contains a photograph of you) contains you.  Likewise, if you are one of those idiots on Myspace, you now exist in the computer.  Also, contained in my tape of ?The Blues Brothers? is Jon Belushi and that lady that played Princess Leia.  In the First Circuit, life is like Tron, and I have quite the party in my den.

There is more.  Keep reading.

A second search warrant was later obtained for an actual hard drive. So, that hard drive isn?t directly implicated.

What is surprising is that it seems like the police did a fairly good job investigating this case and they should not be faulted, and their screw-up on the warrant affidavit (necessitating a diminution in privacy for the rest of us) could easily have been avoided. 

Anyway, with that major screwup behind us, we can proceed to the defendant?s argument that his federal sentence, under § 5G1.3(b), should have run concurrently with his state sentence.  The court rejects this argument, noting that some of the state convictions for ?gross sexual assault of Child A (Count 1) and sexual abuse of Child C (Count 6) were not considered ?relevant conduct,? and, even if they had been, did not impact the determination of Rogers? federal offense level...?  Looking at the application notes, the First says that a combination of credit for the state sentence and consecutive time was within the court?s discretion.

Strangely, the First has absolutely not problem being ?hypertechnical? when it comes to putting people in jail.

Full post as published by Appellate Law and Practice on March 25, 2008 (boomark / email).