Commonwealth v. Gelfgatt

• Citation: 468 Mass. 512,11 N.E.3d 605
• Decision Date: 25 June 2014
• Docket Number: SJC–11358.
• Parties: COMMONWEALTH v. Leon I. GELFGATT.
• Court: United States State Supreme Judicial Court of Massachusetts

468 Mass. 512
11 N.E.3d 605

COMMONWEALTH
v.
Leon I. GELFGATT.

SJC–11358.

Supreme Judicial Court of Massachusetts,
Suffolk.

Submitted Nov. 5, 2013.
Decided June 25, 2014.

[11 N.E.3d 607]

Randall E. Ravitz, Assistant Attorney General (Thomas D. Ralph, Assistant Attorney General, with him) for the Commonwealth.

Paul Joseph Davenport (Stanley D. Helinski with him), Boston, for the defendant.

The following submitted briefs for amici curiae:

Daniel B. Garrie, of Washington, & Daniel K. Gelb, for Daniel K. Gelb & others. David H. Margolis, of Florida, for Florida

[11 N.E.3d 608]

Department of Law Enforcement & others.

Mark R. Gage & Christian J. Desilets, of West Virginia, for National White Collar Crime Center.

David W. Opderbeck, of New Jersey, for David W. Opderbeck & others.

Nathan F. Wessler, of New York, Hanni M. Fakhoury, of California, & Matthew R. Segal, Jessie J. Rossman, & Kit Walsh, for American Civil Liberties Union Foundation of Massachusetts & others.

Victoria L. Nadel, Brookline Village, for Massachusetts Association of Criminal Defense Lawyers.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

On May 5, 2010, a State grand jury returned indictments charging the defendant with seventeen counts of forgery of a document, G.L. c. 267, § 1; seventeen counts of uttering a forged instrument, G.L. c. 267, § 5; and three counts of attempting to commit the crime of larceny by false pretenses of the property of another, G.L. c. 274, § 6. The charges arose from allegations that the defendant, through his use of computers, conducted a sophisticated scheme of diverting to himself funds that were intended to be used to pay off large mortgage loans on residential properties. On November 21, 2011, the Commonwealth filed in the Superior Court a “Motion to Compel the Defendant to Enter His Password into Encryption Software He Placed on Various Digital Media Storage Devices that Are Now in the Custody of the Commonwealth” (motion to compel decryption). The Commonwealth also filed a motion to report a question of law to the Appeals Court prior to trial pursuant to Mass. R.Crim. P. 34, as amended, 442 Mass. 1501 (2004). The question concerned the lawfulness of compelling the defendant to privately enter an encryption key into computers seized from him by the Commonwealth.¹ Following a hearing on January 18, 2012, a judge denied the Commonwealth's motion to compel decryption, but he reported the following question of law:

“Can the defendant be compelled pursuant to the Commonwealth's proposed protocol to provide his key to seized encrypted digital evidence despite the rights and protections provided by the Fifth Amendment to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights?” ²

We transferred the case to this court on our own motion.³ We now conclude that the answer to the reported question is, “Yes, where the defendant's compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators.” Accordingly, we reverse the judge's denial of the Commonwealth's motion to compel decryption.⁴

[11 N.E.3d 609]

1. Background. The undisputed facts are taken from the parties' submissions to the motion judge.⁵

Beginning in 2009, the defendant, who is an attorney, allegedly orchestrated a scheme to acquire for himself funds that were intended to be used to pay off home mortgage loans. According to the Commonwealth, the defendant identified high-end properties that were listed in an online database as “under agreement.” He would research each one at the applicable registry of deeds to determine whether there was a mortgage on the property. If there was, the defendant, purportedly using a computer, would forge an assignment of the mortgage to either “Puren Ventures, Inc.” (Puren Ventures) or “Baylor Holdings, Ltd.” (Baylor Holdings). He then would record the forged assignment at the applicable registry of deeds and mail a notice to the seller stating that the mortgage on the property had been assigned to one of these sham companies, which he had set up.

The defendant fostered the illusion that Puren Ventures and Baylor Holdings were actual companies by giving each one Internet-based telephone and facsimile numbers. When a closing attorney would contact one of these companies to request a statement documenting the sum necessary to pay off the reassigned mortgage, the attorney would be instructed to send the request to the facsimile number that the defendant had created. Next, the defendant would request an actual payoff figure from the true mortgage holder. The defendant would transmit this information by Internet facsimile number to the closing attorney, doing so under the guise of the sham company. The defendant would instruct the closing attorney to send the payoff check to a Boston address where the defendant once had practiced law. Although ultimately unsuccessful, the defendant purportedly created seventeen fraudulent assignments of mortgages, totaling over $13 million. According to the Commonwealth, the defendant relied heavily on the use of computers to conceal his identity and perpetrate his alleged scheme.

On December 17, 2009, State police troopers arrested the defendant immediately after he retrieved what he believed to be over $1.3 million in payoff funds from two real estate closings. They also executed search warrants for his residence in Marblehead and for his vehicle. During the search of the defendant's residence,

[11 N.E.3d 610]

troopers observed several computers that were powered on, and they photographed the computer screens.⁶ The troopers seized from the defendant's residence two desktop computers, one laptop computer, and various other devices capable of storing electronic data. ⁷ They also seized one smaller “netbook” computer from the defendant's vehicle. Computer forensic examiners were able to view several documents and “bookmarks” to Web sites that were located on an external hard drive.⁸ However, all of the data on the four computers were encrypted with “DriveCrypt Plus” software.⁹

According to the Commonwealth, the encryption software on the computers is virtually impossible to circumvent. Its manufacturer touts the fact that it does not contain a “back door” that would allow access to data by anyone other than the authorized user. Thus, the Commonwealth states, the files on the four computers cannot be accessed and viewed unless the authorized user first enters the correct password to unlock the encryption. The Commonwealth believes that evidence of the defendant's purported criminal activities is located on these computers.

On the day of his arrest, the defendant was interviewed by law enforcement officials after having been advised of the Miranda rights. In response to questioning, he said that he had more than one computer in his home. The defendant also informed the officials that “[e]verything is encrypted and no one is going to get to it.” In order to decrypt the information, he would have to “start the program.” The defendant said that he used encryption for privacy purposes, and that when law enforcement officials asked him about the type of encryption used, they essentially were asking for the defendant's help in putting him in jail. The defendant reiterated that he was able to decrypt the computers, but he refused to divulge any

[11 N.E.3d 611]

further information that would enable a forensic search.

On November 21, 2011, the Commonwealth filed its motion to compel decryption pursuant to Mass. R.Crim. P. 14(a)(2), as appearing in 442 Mass. 1518 (2004). It sought an order compelling the defendant's compliance with a “protocol” that the Commonwealth had established to obtain decrypted digital data.¹⁰ As grounds for the motion, the Commonwealth stated that compelling the defendant to enter the key to encryption software on various digital media storage devices that had been seized by the Commonwealth was essential to the discovery of “material” or “significant” evidence relating to the defendant's purported criminal conduct. The Commonwealth further stated that its protocol would not violate the defendant's rights under either the Fifth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights.

In denying the Commonwealth's motion to compel decryption, the judge said that, on the one hand, the Commonwealth merely was requesting a sequence of numbers and characters that would enable it to access information on the computers, but that, on the other hand, the Commonwealth was asking for the defendant's help in accessing potentially incriminating evidence that the Commonwealth had seized. In the judge's view, there was merit to the defendant's contention that production of a password to decrypt the computers constituted an admission of knowledge, ownership, and control. Further, the judge continued, the scenario presented in this case was far different from compelling a defendant to provide a voice exemplar, a handwriting exemplar, or a blood sample, all of which are deemed to be nontestimonial. The judge said that the defendant's refusal to disclose the encryption key during his interview with law enforcement officials could be construed as an invocation of his rights under the Fifth Amendment and art. 12. Finally, it was the judge's understanding that neither the Federal nor the State Constitution requires

[11 N.E.3d 612]

a defendant to assist the government in understanding evidence that it has seized from a defendant.

2. Decryption under the Fifth Amendment. The Commonwealth contends that compelling the defendant to enter his encryption key into the computers pursuant to the Commonwealth's protocol would not violate the defendant's Fifth Amendment right against self-incrimination. In the Commonwealth's view, the defendant's act of decryption would not communicate facts of a testimonial nature to the...