The Utah Bar Journal published an article I drafted: “Dealing with Metadata in the Non-Discovery Context.”
Metadata is truly a trap for the unwary.
In a bizarre set of facts, a Utah man pleads not guilty this week in federal court to charges of bank fraud, computer fraud and aggravated identity theft.
According to a federal indictment, John Bradley Egan had talked his fiancee into selling her North Salt Lake condo and starting a new life with him in Tampa, Fla., where they were to be married. Egan persuaded the woman to drive to Florida where he told her he would meet her. Instead, police say Egan drained her bank account of about $109,000 and stole his parents’ passports and Social Security cards before he vanished in June 2006.
In June 2007, federal officials were notified that Egan had been picked up in a broken-down boat in Cuba.
Egan told Cuban officials that he had tried to set sail from Mexico to Ireland when his boat broke down. Egan spent some time in Cuban jail for having a forged passport. Through a diplomatic exchange, Cuba handed Egan over to U.S. officials.
UNITED STATES OF AMERICA, Plaintiff, vs. KERRY DEAN BENALLY, Defendant.
Case No. 2:07CR256 DAK
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
2007 U.S. Dist. LEXIS 85620
November 20, 2007
Judge Dale A. Kimball
Criminal trial was held on October 9-10, 2007. The jury returned a verdict of guilty on the afternoon of October 10, 2007. On October 11, 2007, counsel for defendant was contacted by a juror who expressed concern regarding racially prejudicial statements made by two jurors during the deliberations. The prejudice of these jurors had not been disclosed to the court and counsel during voir dire. Defense counsel then talked with another juror, who confirmed that such statements had been made during deliberations. Motion for New Trial was subsequently filed by defense counsel.
The court asked questions during voir dire that were specifically targeted at determining whether anyone had any prejudice toward Native Americans or held any preconceived notions about the Native American race that may impact their ability to be impartial in the case. Both jurors remained silent when these questions were asked, and did not convey to the court that they held any prejudice. Moreover, they failed to disclose to the court that they had lived on or near a reservation, and did not bring to the court’s attention that they had preconceptions about Native Americans due to their contact with that culture.
The court also stated that “had they [the jurors] answered the voir dire questions honestly and revealed their past contact with reservations and their belief that all Native Americans get drunk and get wild or violent, they would have been challenged for cause.”
“During jury deliberations, there was a conversation regarding the need to send a message back to the reservation, and one of the jurors clearly introduced information that was not in evidence. The juror considered and relied upon information contained in stories he had heard from his family members who were involved in law enforcement. These stories related directly to the type of case that was at issue in the instant case. It is unknown how many jurors relied on the information communicated by this juror.”
Based on two jurors’ failure to answer material voir dire questions honestly and the consideration of information not in evidence, Defendant’s Motion for New Trial was granted and the jury prior verdict was set aside.
Judge Tena Campbell sentenced Charles Granere to 60 months in federal prison after previously pleading guilty to transportation of child pornography.
Granere and Matthew Duhamel were charged with transporting, receiving and possessing child pornography for the site, which court documents said featured 9- and 10-year-old girls dressed in sexually provocative and skimpy clothing.
Both men previously argued the pictures were not pornographic because the minors were clothed. However, Judge Campbell pointed out in a ruling that the U.S. Supreme Court has determined nudity was not required to constitute pornography.
Duhamel was convicted after a bench trial in February of charges of transporting, receiving and possessing child pornography. He is scheduled to be sentenced June 19, 2007.
At approximately 3:00 a.m. on the morning of June 16, 2006, a Taylorsville police officer observed a vehicle traveling without a front or rear license plate. Pursuant to the lack of license plates, the officer conducted a traffic stop. As he neared the vehicle on foot, the officer realized there was a temporary tag on the back window. However, the temporary tag was not readable as the tint on the back window was so dark, even with the officer’s vehicle headlights shining on the back window.
The officer requested the driver’s license, registration and proof of insurance. The driver was unable to produce any of these. The driver did give the officer his name, date of birth, but claimed he didn’t know his own social security number. The officer became suspicious, and the driver ultimately admitted that he gave false information regarding his identity.
Pursuant to the false information, the officer arrested the driver and conducted a search of the vehicle. Defendant requested that the evidence found in the search of the vehicle be suppressed.
Defendant claimed that when the officer realized there was a temporary tag on the back window, the officer should have let the driver go on his way, without even asking for the driver’s license, registration and proof of insurance. In support of this position, Defendant cites McSwain v. United States and Edgerton v. United States. 29 F.3d 558, 60-61 (10th Cir. 1994); 438 F.3d 1043, 1051 (10th Cir. 2006).
As stated by Judge Stewart, “in the present case, the Court agrees that McSwain and Edgerton are distinguishable. As noted above, the Court finds the Detective’s testimony credible that in the light provided by his headlights, he could not read the temporary tag and that he could not see the presence of an individual in the back seat due to the dark tint on the windows. Because the Court has found that the tag was not legible to the Detective as he walked up to the vehicle, the Court finds that he ‘properly detained [Defendant] because he continued to have an objectively reasonable suspicion that a traffic violation was occurring,’ namely, that the vehicle did not have a valid registration. Accordingly, the extended detention to request and check the driver’s license, proof of insurance and registration did not violate the Fourth Amendment. Once the driver was unable to produce any of this documentation and the Detective was unable to verify any of the information that he did provide, the Detective had probable cause to suspect that he had provided false information and to arrest him. Accordingly, the Court finds and concludes that there was no Fourth Amendment violation.”
Motion to Suppress denied.
Judge Tena Campbell fined a South Ogden radiator shop $40,000 after it plead guilty to eight counts of illegally dumping contaminated water down a sewer drain. As part of the agreement, Radiators Inc. also agreed to contribute $20,000 to the Western States Project to help state and local law enforcers investigate and prosecute environmental crimes.