Ninth Circuit: USA v. Volodymyr Kvashuk

 Proof that an IP associated with the house was used to access relevant email and crypto-coin sites, combined with affidavit statement that financial and personal records are often kept at the home, was sufficient probable cause for a search of the house in an online fraud investigation.  The fact that the fraudulent transactions were committed before moving there isn't dispositive of whether there was likely to be evidence at the house.

A 15-20 month gap between the thefts and the affidavit didn't make the affidavit claims stale, given the nature of computer memory.

Discrepancy in URL TLD on the warrant affidavit was inconsequential.

Personally issued website development test accounts sufficiently identify their authorized users to be the basis for a charge of aggravated identity theft.

Deft's immigration status wasn't critical to establishing a defense for the use of crypto-coin; court did not abuse its discretion in excluding it.

Juror's work with the same large corporate division was insufficient for a claim of implied bias, since the fact patterns at issue in the trial weren't similar to the events of their employment.

USA v. Volodymyr Kvashuk

Eighth Circuit: Colby Beal v. Outfield Brew House

 Telephonic communications device that stores a predefined list of numbers and then randomly or in a defined manner selects and dials certain numbers doesn't come within the statutory proscription of random dialing machines.

CONCURRENCE IN PART:

Footnote that recites Supreme Court GVR's and denials of certiorari is error, as they're not precedential.

Colby Beal  v.  Outfield Brew House

Eighth Circuit: United States v. Ivan Espinoza

 

As those possessing abuse images tend to hoard them, the uploading of an image was sufficient probable cause for a search of the deft's electronic devices seven months later.   

Under-guidelines sentence not substantively unreasonable.

http://media.ca8.uscourts.gov/opndir/21/08/203049P.pdf

Seventh Circuit: USA v. Elijah Vines

Expert testimony of federal investigator on the recalcitrance of victims wasn't an abuse of discretion or beyond the rule, since it was from experience and did not directly address the credibility of any witness.

Identification of deft from Facebook photo after victim provided name and the information that deft had a Facebook account was not an unduly suggestive photo identificaiotn, given the lack of police arrangement.

Phone voluntarily provided by a third party without access to its passcode could lawfully be searched under a subsequent warrant, since the third party held a valid possessory interest in the phone seperate from the privay interest in the data inside the phone.  Analogy to a locked safe discussed in circuit precedent.

No clear error in denial of Franks hearing due to claimed misstatements supporting the warrant affidavit, as warrant had independent basis of probable cause apart from that testimony.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-13/C:19-2316:J:Rovner:aut:T:fnOp:N:2747530:S:0

First Circuit: Emmanuel v. Handy Technologies, Inc.

 

Independent contractor sufficiently manifested assent to clickwrap terms of service containing an arbitration provision, despite the fact that the button clicked to accept the agreement wasn't at the end of the document.

Claim of unconscionability arising from the terms' unilateral modification provision does not address the threshold question of scope of arbitration, and is reserved in the first instance to the  arbitration.

 Emmanuel v. Handy Technologies, Inc.

Fourth Circuit: US v. Daniel Harris

 

Physical presence in the courtroom is sufficient to give a criminal court jurisdiction over a deft.

Habeas grounds not raised at trial or on direct appeal and then raised for the first time on a collateral challenge are subject to de novo review on matters of law if the government doesn't argue the procedural default at the District Court.

If the conduct relative to the statute's focus, the object of the statute's solicitude, occurred in the US, it is a permissible domestic application of the statute, even if related conduct occurred abroad.  Since the protected victim was in the US while being coerced into the activity by means of the Internet, the present case is a permissible domestic application of the statute, even though the deft was abroad.

US v. Daniel Harris

Seventh Circuit: Kevin Pack v. Middlebury Community Schools

 

The website statement preexisting the nondisparagement agreement that applied to prospective communication, statements, and conduct did not breach the agreement, since the statement was published to the website before the agreement.

Litigation affidavit enjoyed absolute immunity from the nondisparagement terms, since it was relevant and pertinent to the matter before the court.

Statements made to plaintiff's agents posing as prospective employers did not implicate the nondisparagement agreement's limitations on communications with potential employers.

Kevin Pack v. Middlebury Community Schools

Second Circuit: James Domen v. Vimeo, Inc.

 

Since the video streaming service's removal of the Plaintiff's account was a good faith effort to enforce an internal policy that was aimed at removing objectionable content, the federal statutory safe-harbor applies, preempting state antidiscrimination laws and state public forum content-neutrality laws.

James Domen v. Vimeo, Inc

Third Circuit: USA v. Marcus Walker

 

Historical cell site information obtained without a warrant appropriately considered under the good faith exception.

Where the underlying data was also admitted, testimony by only one of several collaborating investigators did not violate the Confrontation Clause.

Investigator's testimony that the technical evidence was consistent with the physical investigation was not improper vouching or bolstering.

As Hobbs Act Robbery is simply the common law felony in an interstate commerce and a non-physical threat therefore wouldn't fall within its scope, the completed crime is categorically a crime of violence.

As the attempt presumes the full offense, the US Code generally defines attempts specific to each offense, and the intent of the legislature was to prevent violent crime, attempted Hobbs Act Robbery is categorically a crime of violence.

Jury instructions sufficiently identified the robbery, and not the conspiracy as the predicate for convictions under the Hobbs Act.

USA v. Marcus Walker

Fourth Circuit: US v. James Cobb

 

Warrant was sufficiently particular, as it specified the device to be searched and the offense for which the search was seeking evidence.

It would not have been reasonable to require the warrant affiant to explain where in the computer file structure the evidence was to be found.

Catch-all provision in warrant authorizing seizure of evidence of any and all other crimes was overbroad, but the remedy is to sever it from the otherwise sufficiently particular warrant.

Circuit precedent compels admissibility of evidence from plain view exception in a computer search.

Dissent:

Police had a sufficient theory of the case to explain the type of thing that they were looking for in the search.

If the warrant was flawed, plain view is out, since police could only seize the device.

No good faith exception for facially flawed warrant. 

US v. James Cobb

Sixth Circuit: Todd Courser v. Keith Allard

 

Court appropriately dismissed S1983 & S1985 claims, as the constitutional interests were not pleaded with particularity.

Court appropriately did the same to state constitutional claims, as those are limited to official-capacity claims.

Alleged CFAA violations resulted in no harm, and there is no civil c/a to enforce the criminal elements of the statute.

Defamation claim was time-barred under state SOL.

To state a claim for civil conspiracy, the underlying tort harm needs to be established -- the defts can't be implicated in a tort that requires them to be the tortfeasors by a claim of conspiracy.

Other tort and RICO claims legally or factually insufficient.

Wiretap Act time-barred.

Court appropriately set aside default judgment against one deft on equitable grounds.

Todd Courser v. Keith Allard

Eighth Circuit: United States v. Shari Natysin

Company's software allowed deft sufficient discretion to justify sentencing bump for abusing a position of private trust, as she could structure the finances singlehandedly.

United States  v.  Shari Natysin

Eighth Circuit: United States v. Mark Ringland

Private searches by email provider subsequent to first report to authorities did not transform the provider into a government agent for the purposes of the Fourth Amendment; Carpenter scope not implicated by email provider's capacity for private search.

United States  v.  Mark Ringland

DC Circuit: Strike 3 Holdings, LLC v. John Doe

The socially offensive nature of the copyrighted material cannot be considered in a motion to allow discovery in an infringement suit against an unknown deft.

Claim alleging infringement by an IP address has right to discovery process to discover the identity of the owner of the connection, as the information might reasonably be used to state a claim against a specific person or determine that such a claim would be impossible.

While a court can take judicial notice of a party's lawsuits in other forums, the number of suits cannot be the sole basis for concluding that the present suit is without merit, and the number of suits settled before trial is not sufficient basis to infer improper purpose in the present suit.

Strike 3 Holdings, LLC v. John Doe

Second Circuit: United States v. Muzio

Insufficient substantive error in sentencing where mandatory minimum is imposed for acquisition and possession of abuse images where the contact with the victims was virtual rather than physical.

Insufficient procedural plain error in sentencing where a 200 year Guidelines maximum is calculated to be 500 years, where the sentence ultimately follows statutory minimums instead.

United States v. Muzio

Second Circuit: La Liberte v. Reid

Motion to strike pleading in Federal court based on state statute requiring an elevated pleading for defamation cases is not valid, as it conflicts with FRCP pleading and summary judgement rules.  As the statute awards fees only for its own process, dismissal under the Federal pleading rules does not automatically justify an award of fees.

Deft is not shielded by the CDA for independently authored social media posts that include information available elsewhere on social media.  Sole authorship of the post in question is sufficient material contribution to establish the poster as the sole information source for the purposes of a defamation claim.

Testifying at public meetings in addition to a lot of other public speech is insufficient to establish a person as a limited purpose public figure, since the designation was created to recognize that some figures had sufficient media clout to respond to attacks on their own.

A juxtaposition of an image of the plaintiff with an image of racist conduct was sufficiently clear, both in itself and within the frame of general knowledge, to establish libel per se by implication.

 La Liberte v. Reid

Third Circuit: Carol Walker v. Brian Coffey

Production of work emails by a public university in response to a facially infirm subpoena did not violate a clearly established constitutional right, as there was no legitimate expectation of privacy in emails which an employer could freely disclose.  Dismissal without prejudice to allow a refiling for statutory claims.

http://www2.ca3.uscourts.gov/opinarch/172172p.pdf

Eighth Circuit: Charter Advanced Services v. Nancy Lange

Voice-IP system is properly considered an information service, as the data is transformed to the traditional telephony format before entering the network.  State regulation therefore preempted by the field of federal law.

Dissent: There is no noticeable transformation between end users, some networks use voice-IP internally, transforming to traditional format before routing to user.

http://media.ca8.uscourts.gov/opndir/18/09/172290P.pdf

Third Circuit: USA v. Amy Gonzalez

Sufficient evidence for conspiracy conviction where the deft claims a genuine belief in the inciting statements, but finder of fact holds them to be objectively false.

Specific unanimity instruction not required, as the different mental states enumerated are alternate means of accomplishing the crime, not distinct potential elements of the crime.  Where a statute lists several acts, commission of any two of which would be an element of the crime, specific unanimity as to the underlying acts is not required, as the point of the list is to identify conduct that violates the actual prohibition.

For the statutory finding that death had resulted from the crime, the finder of fact must find it to be a forseeable proximate cause; there is no need to establish that the defts actually intended to cause death, and culpability can be established by the liability of a co-conspirator.

As the cyberstalking was defamatory and part of the commission of the crime, the law as applied in this case does not violate the First Amendment.

A recusal order that might reasonably be read to transfer venue but is then amended to clarify that it only recuses the present judge does not impugn the present venue.

Possibly prejudicial prior family court records properly admitted with limiting instructions.

Statements to a therapist as part of the therapy are admissible under the hearsay exeption for statements made for medical diagnosis or treatment, in addition to being evidence of the state of mind.

Hearsay emails to third parties properly admitted, as they spoke to how the acts referenced affected the writer's state of mind.

,Statements to therapist insufficiently testimonial to trigger the Confrontation Clause.

Question on cross as to whether the law enforcement officer had doubts about the defts' guilt opened the door for a vouching statement on redirect.  Vouching appropriately limited by instruction.

Court did not err in holding that testimony as to deft's honesty, peacefulness, and law abiding behaviour opened the door to testimony as to specific acts related to the present prosecution.

Factual findings by the judge during sentencing increased the advisory range, and not the statutory maximum -- these findings therefore could be made by a preponderance. and without reference to the jury's findings.

Deft's presence in courthouse should have put him on notice that it was foreseeable that a law enforcement officer might be injured in the coming imbroglio.

Injury to victim's children justified the increase of sentence for harming a vulnerable victim.

Life sentence for cyberstalking conspiracy resulting in death does not offend the Eighth Amendment.

http://www2.ca3.uscourts.gov/opinarch/161540p.pdf

First Circuit: Boudreau v. Lussier

Expert testimony is required to establish that time-stamped screenshots taken of employees computer are, for purposes of the statute, contemporaneous intercepts of electronic communications.

Impoundment and subsequent inventory search of arrestee's vehicle from employer's private lot were justified under the community caretaker exception; even if the motive was investigatory, subjective intent is irrelevant, and the towing was objectively justified.

Employer defts would be protected by qualified immunity for consenting to search of employees computer where their authority to do so was not plain.

http://media.ca1.uscourts.gov/pdf.opinions/16-1049P-01A.pdf