CLEVELAND, Oh.—One of the most contentious elements in many prosecutions for possession of child pornography is whether the defendant knew or should have known that the photos or video that he was looking at were of actual children or simply young-looking adults—or morphed images where someone replaced the head of an adult having sex with that of a child.
Enter Ohio attorney Dean Boland, who testified for the defense as an expert in child pornography in two prosecutions in March and April of 2004; most notably U.S. v. Shreck, a federal case from the District of Oklahoma that gave rise to the current lawsuit.
"During Boland's testimony," recounted Judge Jeffrey S. Sutton of the Sixth Circuit Court of Appeals, "he displayed a series of 'before-and-after' images that he had digitally altered. The aim was to show it would be 'impossible for a person who did not participate in the creation of the image to know [the child depicted is] an actual minor.' Boland showed an image of a nude adult woman, then showed how he could edit the image to make it look like a nude child. He also showed innocent images of Jane Doe and Jane Roe followed by sexually explicit 'morphed' versions of them."
"Toward the end of the hearing, the prosecutors raised the possibility that Boland may have violated federal law by creating and possessing some of these images," the opinion continued. "The district judge responded that Boland’s photos were 'prepared expressly at court order,' but admonished him to purge the images from his hard drive. Boland did not remove the images from his hard drive, and later used the doctored images of the minor plaintiffs in two more state court proceedings while acting as an expert witness or counsel." [Citations removed here and below]
Although Shreck was convicted, the FBI's Cleveland office began an investigation of Boland, which included a search of his home, where they seized "several electronic files," including the morphed photos that Boland had been ordered to delete. As a result, Boland agreed to enter into a pre-trial diversion agreement three years later, admitting that he had violated 18 U.S.C. §2252A(a)(5)(B), which prohibits knowingly possessing child pornography—a prohibition which includes the morphed images Boland had created, as defined by 18 U.S.C. §2256(8)(C).
But those morphed photos had become part of the court record, and the guardians of two of the children whose facial images Boland had used sued him under 18 U.S.C. §2255 for "personal injury [suffered] as a result of such violation." The suit seeks to "recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney’s fee."
But the U.S. District Court for the Northern District of Ohio awarded summary judgment to Boland.
"Finding it a 'difficult and troubling case,' the court held 'it would not be fair' to impose 'crushing damages' on Boland for his testimony in Oklahoma federal court," Judge Sutton's opinion recounts. "Reading the federal statute to permit liability, the court explained, (1) could implicate a criminal defendant's Sixth Amendment right to counsel, (2) was hard to reconcile with the fact that Boland 'was responding to a federal court directive' when he created and possessed the images and (3) would implicate '[s]erious comity issues' because Ohio law provides immunity from state child pornography prosecutions for expert witnesses."
Those points would appear to be well-taken, especially since the morphed photos were not published anywhere in the media, so it's difficult to see what "actual damages" the children may have suffered from having their images used in court. However, the Sixth Circuit nonetheless overturned the district court's decision.
The Sixth Circuit decision hinges on the fact that Boland kept the morphed images on his computer, thus violating §2252A(a)(5)(B), which holds that, "Any person who ... knowingly possesses, or knowingly accesses with intent to view, any ... computer disk, or any other material that contains an image of child pornography ... that was produced using materials that have been mailed, or shipped or transported in or affecting interstate or foreign commerce by any means, including by computer ... shall be punished as provided in subsection (b)."
There's no question that Boland knowingly possessed the images, that they were child porn under the definition cited above, and that he had downloaded the children's images from the internet, which put the offense into the stream of interstate commerce. And since §2252A is one of the predicate statutes for recovery under §2255, Boland was on the hook for damages.
"The statute provides no exemption for this conduct, and [in his argument briefs] Boland offers only the will, not a way, for declining to enforce these terms," Judge Sutton wrote. "The provisions encompass all violations of §2252A(a), not some of them. As with the terms of the underlying substantive provision, so with the terms of the civil remedy provisions: They cover Boland’s conduct, and they supply a cause of action for individuals aggrieved or injured by his actions."
Judge Sutton went on to cite the Adam Walsh Child Protection and Safety Act of 2006, which specifies that any child porn images used as evidence "shall remain in the care, custody, and control of either the Government or the court," and defendants are only permitted "ample opportunity for inspection, viewing, and examination at a Government facility."
"If Congress did not want defense counsel to view, let alone possess, existing child pornography without governmental oversight, it is hardly surprising that Congress opted not to permit expert witnesses to create and possess new child pornography," Judge Sutton concluded. [Emphasis in original here and below.]
Boland argued that, as an expert, he should be entitled to retain the morphed images in order to "put on an effective defense under the Sixth Amendment," but the court disagreed: "[N]o constitutional principle at any rate allows a criminal defendant to defend one criminal charge by urging his lawyer or witness to commit another. Otherwise, an individual on trial for a murder-by-stabbing charge could try to prove that the knife was not long enough to kill someone by using it to stab someone else in the middle of the trial. Or individuals on trial for counterfeiting or manufacturing drugs might be able to make more of the contraband as part of a defense. If the Constitution is not a 'suicide pact,' it is not an instrument of crime either."
Boland had also argued that he was not liable because the Oklahoma court had permitted him to create and possess the images, but that didn't fly either.
"None of this authorized or required the creation or possession of new child pornography," Judge Sutton noted. "Boland could have illustrated the difficulty of discerning real from virtual images by combining two innocent pictures into another innocent picture. Or, if Boland wished to use pornography to make the point, he could have morphed an image of an adult into that of a minor engaging in sexual activity. Boland indeed did the latter as part of his preparations, and had he stopped there we would not be here. These images are not prohibited by federal law..."
Indeed, the Sixth Circuit held that Boland had violated federal law by creating the images even though they were "prepared expressly at court order," because Boland had created the images (and thus violated federal law) "before he stepped into the courtroom, and at no point before the hearing had the judge given him permission to create and possess new child pornography. All the judge said before the hearing was: 'Defendant's expert should be prepared to address [the topic of virtual pornography] with information regarding financial costs of producing virtual images, the amount of time needed to produce an image, as well as the skill level required in order to achieve results which can pass for "real" images.'" Apparently the ex post facto permission given to Boland by the trial judge was simply generosity in preventing an expert from being prosecuted for his expert testimony—but even then, the judge required the destruction of the images, which Boland failed to do. The Sixth Circuit similarly dismissed Boland's claim that creating the images was legal under Ohio's laws, since he need not have created child porn to prove his point.
Finally, Judge Sutton noted that the federal statute requires the "actual damages" suffered by the child "shall be deemed to [be] ... no less than $150,000 in value," and that the immunities conferred by case law on expert witnesses were inapplicable here, since Boland created the child porn at his own volition. The Sixth Circuit therefore remanded the case to the trial court for further proceedings; i.e., a trial on the substantive issues.
"In view of these conclusions, we need not reach other defenses Boland has raised and that the district court has not yet considered," the opinion states. "Boland, for example, argues that the children did not suffer 'personal injury,' as required under §2255, because the parties have stipulated that each child does not know about the images. The fact that Congress has set such a sizeable damages threshold ($150,000) may suggest that the personal injury requirement is a serious one. He also argues that none of the plaintiffs can show they are 'aggrieved' under §2252A(f). And it is possible that constitutional defenses remain. We entrust the initial resolution of these issues to the capable hands of the district court judge."
The case is Jane Doe, et al. v. Dean Boland, United States Court of Appeals for the Sixth Circuit, No. 09-4281; decided January 19, 2011.
(h/t to Howard Bashman of website How Appealing)
