Doe v. Boland

• Decision Date: 19 January 2011
• Docket Number: No. 09–4281.,09–4281.
• Parties: Jane DOE, c/o her guardian and next friend; Peter Lora; Jane Roe, c/o her guardian and next friend; Victoria Bloom, Plaintiffs–Appellants,v.Dean BOLAND, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

630 F.3d 491

Jane DOE, c/o her guardian and next friend; Peter Lora; Jane Roe, c/o her guardian and next friend; Victoria Bloom, Plaintiffs–Appellants,

v.Dean BOLAND, Defendant–Appellee.

No. 09–4281.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 8, 2010.Decided and Filed: Jan. 19, 2011.

ARGUED: Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants. Dean Boland, Lakewood, Ohio, for Appellee. Mark R. Freeman, United States Department of Justice, Washington, D.C., for Amicus Curiae.

ON BRIEF: Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants. Dean Boland, Lakewood, Ohio, for Appellee. Mark R. Freeman, Thomas M. Bondy, United States Department of Justice, Washington, D.C., for Amicus Curiae.Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.^*

OPINION

SUTTON, Circuit Judge.

In the course of preparing expert testimony and exhibits for a criminal trial, Dean Boland downloaded images of children from a stock photo website, digitally “morphed” them into pornography, then used the images to help his clients resist child pornography charges in federal and state courts. Boland's actions, as it turned out, created potential problems of their own. On the criminal side, the government alleged that Boland's conduct violated federal criminal child pornography laws, leading to a deferred prosecution agreement with him. On the civil side, the one at issue here, the parents of the depicted children found out about the exhibits, prompting them to sue Boland under the civil remedy provisions of the federal child pornography statute. The district court rejected the civil claims as a matter of law, holding that Congress did not intend the law to apply to expert witnesses. The law contains no such exception, however, and no common law exemptions apply in this setting. We reverse the district court's judgment, remand the case to the district court and allow it to consider other lingering legal defenses in the first instance.

I.

Licensed to practice law in Ohio, Dean Boland specializes in technology-related legal issues. In February 2004, Boland downloaded innocent-looking images of the minor plaintiffs, Jane Doe and Jane Roe, from a stock photo website, where photographers may upload images and viewers may download them for a fee. Boland digitally manipulated the pictures to make it look like the children were engaging in sexually explicit acts. Two examples: he took a picture of 5–year–old Jane Roe eating a doughnut and replaced the doughnut with a male penis, and he placed a picture of 6–year–old Jane Doe's face on the image of the body of a nude woman performing sexual acts with two adult males. In March and April 2004, Boland used these images in the course of testifying as an expert witness in two Ohio state court criminal proceedings dealing with child pornography.

In April 2004, Boland served as an expert witness in United States v. Shreck, a federal criminal child pornography prosecution in Oklahoma. See No. 03–CR–0043–CVE, slip op. at 2 (N.D.Okla. May 23, 2006). The defendant moved to dismiss the charges against him on the theory that 18 U.S.C. § 2252(a)(4)(B), which prohibits “knowingly” accessing child pornography, violated the First Amendment on vagueness and overbreadth grounds because a defendant “cannot determine whether what he is viewing is an actual or virtual image of a child,” given the sophistication of modern computer-imaging technology. Shreck, slip op. at 2. The district judge allowed the defendant to present expert testimony on the point at an evidentiary hearing.

During Boland's testimony, 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.” R.77–2 at 119. 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 district judge responded that Boland's photos were “prepared expressly at court order,” R.77–2 at 141, 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.

In May 2004, the FBI's Cleveland office started an investigation of Boland. FBI agents searched Boland's home and seized several electronic files. In April 2007, Boland entered into a pre-trial diversion agreement with the U.S. Attorney's Office for the Northern District of Ohio, in which he admitted violating § 2252A(a)(5)(B)'s prohibition against knowing possession of child pornography, as defined to include a “visual depiction [that] has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct,” 18 U.S.C. § 2256(8)(C). In return for the government's agreement to defer prosecution for 18 months, Boland agreed to various conditions. One of them required him to make a public apology in the Cleveland Bar Journal, where he stated, “I do recognize that such images violate federal law.” R.73–1 at 12.

In September 2007, the children and their guardians filed this lawsuit against Boland under 18 U.S.C. § 2252A(f) and § 2255, which respectively provide civil remedies to “any person aggrieved” and to minor victims who have suffered “personal injury” from a violation of 18 U.S.C. § 2252A(a). The plaintiffs also filed various state law claims.

The district court awarded summary judgment to Boland on the federal claims and opted not to resolve the state law claims. 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. R.85 at 7, 11. 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. Id. at 8, 11–12. The plaintiffs appealed.

II.

The question presented—do the federal child pornography laws exempt those who violate the law in the course of providing expert testimony?—implicates three statutory provisions.

The first provision establishes the standard of care. It says:

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).

18 U.S.C. § 2252A(a)(5)(B).

As this case comes to us, Boland has no basis for denying that he (1) knowingly possessed (2) a computer disk containing child pornography, (3) which was produced using materials that affected interstate commerce. In his deferred prosecution agreement, he suggested as much, stipulating that he “downloaded at least four ... images, from the Internet, depicting four ... real, identifiable minors in innocent poses,” and then “digitally manipulated such images ... to appear that each of the ... minors was engaged in sexually explicit conduct.” R.73–1 at 10. In his apology, he added, “I do recognize that such images violate federal law.” Id. at 12.

That leaves the civil remedy provisions. One says:

In general.—Any person aggrieved by reason of the conduct prohibited under subsection [§ 2252A](a) ... may commence a civil action for the relief set forth in paragraph (2).

18 U.S.C. § 2252A(f)(1). The other says:

Any person who, while a minor, was a victim of a violation of section ... 2252A ... and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.

18 U.S.C. § 2255(a).

The statutes provide no exemption for this conduct, and Boland offers only the will, not a way, for declining to enforce these terms. 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.

A separate statute shows the extent to which Congress means business when it comes to enforcing the child pornography laws. The Adam Walsh Child Protection and Safety Act of 2006 says that, in any criminal proceeding, child pornography “shall remain in the care, custody, and control of either the Government or the court.” Pub.L. No. 109–248, § 504 (codified at 18 U.S.C. § 3509(m)). Even though Criminal Rule 16(a)(1)(E) usually allows defendants to copy material documents in the government's possession, the Act requires federal courts to deny these requests when the materials contain child pornography, instead permitting the defendant only to have an “ample opportunity for inspection, viewing, and examination at a Government facility.” 18 U.S.C. § 3509(m)(2)(B). If Congress did not want defense counsel to...