Jane Doe v. Boland (In re Boland)

• Decision Date: 03 January 2020
• Docket Number: Nos. 19-3205/3211,s. 19-3205/3211
• Citation: 946 F.3d 335
• Parties: IN RE: Dean Maynard BOLAND, Debtor. Jane Doe; Jane Roe, Plaintiffs-Appellees/Cross-Appellants, v. Dean Maynard Boland, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

946 F.3d 335

IN RE: Dean Maynard BOLAND, Debtor.

Jane Doe; Jane Roe, Plaintiffs-Appellees/Cross-Appellants,

v.Dean Maynard Boland, Defendant-Appellant/Cross-Appellee.

Nos. 19-3205/3211

United States Court of Appeals, Sixth Circuit.

Argued: December 11, 2019

Decided and Filed: January 3, 2020

ARGUED: Stephen D. Hobt, Cleveland, Ohio, for Appellant/Cross-Appellee. Jonathan E. Rosenbaum, Elyria, Ohio, for Appellees/Cross-Appellants. ON BRIEF: Stephen D. Hobt, Cleveland, Ohio, for Appellant/Cross-Appellee. Jonathan E. Rosenbaum, Elyria, Ohio, for Appellees/Cross-Appellants.

Before: McKEAGUE, BUSH, and NALBANDIAN, Circuit Judges.

McKEAGUE, Circuit Judge.

This is the final chapter in the story of Dean Boland, the lawyer and expert witness who unfortunately chose to create child pornography in defense of his clients charged with possessing child pornography. Two of the children victimized by Boland won a $300,000 civil judgment against him, which he tried to wipe away ("discharge") in bankruptcy. A judgment can be discharged in bankruptcy, provided the judgment wasn’t the result of the debtor knowingly injuring someone. The bankruptcy court here discharged the civil judgment, but only because it bought Boland’s implausible pleas of ignorance. That was clear error, so we REVERSE .

I

The story begins in 2004, when Boland was serving as a technology expert for Oklahoma and Ohio defendants charged with possessing child pornography. Boland provided his clients a simple defense: doubt. Here’s how it went. Boland created "before-and-after" exhibits. The "before" exhibits were innocuous stock photographs Boland found online of two young girls, Jane Doe and Jane Roe. Boland manipulated ("morphed") these photographs on his computer to create the "after" exhibits: images of Doe and Roe engaged in sex acts. If Boland could whip up doctored pornography this easily, the argument went, then it’s possible the pornography his clients downloaded was doctored, too. In essence, the defense was that there’s just no way of knowing whether real children are depicted in pornography found on the internet.

Boland tried out his exhibits in an Oklahoma federal court. After he testified, to his surprise, the prosecution turned toward him. The "after" exhibits, prosecutors claimed, were actionable child pornography. The judge interrupted that the exhibits were prepared "at court order" but told Boland to delete the images anyway. Boland didn’t comply. Instead, he called federal prosecutors in his hometown, Cleveland, to see if they agreed his exhibits were illegal. The prosecutors didn’t call back. So Boland shipped his computer from Oklahoma to his mother in Ohio, fearing prosecution. Nevertheless, he also continued using the exhibits in testimony in Ohio courtrooms.

As it turns out, Boland’s exhibits were in fact illegal. 18 U.S.C. § 2256(8)(C) defines as "child pornography" any image which is morphed to make it appear that a real minor is engaging in sexually explicit conduct. Ohio federal prosecutors caught up with Boland and offered him a pre-trial diversion agreement in lieu of prosecution, which Boland signed. In the agreement, Boland admitted he violated federal law ( 18 U.S.C. § 2252A(a)(5)(B), specifically) in morphing the images of Doe and Roe into child pornography.

Federal prosecutors identified Doe and Roe as part of their investigation and told Doe and Roe’s parents what Boland had done. The parents promptly sued Boland under the civil-remedy provision of the federal child pornography statute, 18 U.S.C. § 2255, which provides minimum damages of $150,000 to victims of child pornographers. Seeing as Boland admitted he violated the law, Doe and Roe won a combined $300,000 judgment. We rejected all of Boland’s challenges to criminal and civil liability. Doe v. Boland , 698 F.3d 877 (6th Cir. 2012) (" Boland II "); Boland v. Holder , 682 F.3d 531 (6th Cir. 2012) ; Doe v. Boland , 630 F.3d 491 (6th Cir. 2011) (" Boland I ").

II

Boland then filed for Chapter 7 bankruptcy in the Bankruptcy Court for the Northern District of Ohio. Chapter 7 allows the "honest but unfortunate debtor" to discharge his debts in exchange for liquidating most of his assets. Marrama v. Citizen’s Bank of Mass. , 549 U.S. 365, 367, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007) (quotation omitted); see also In re Krohn , 886 F.2d 123, 125 (6th Cir. 1989). But not all debts are discharged, because not all debtors are honest but unfortunate. Any debt resulting from "willful and malicious injury by the debtor" is excepted from discharge. 11 U.S.C. § 523(a)(6). The creditor has the burden, however, of showing a judgment is not dischargeable. Grogan v. Garner , 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).

Doe and Roe accordingly sued Boland in bankruptcy court to prevent their judgment’s discharge. Before getting to the evidence that Doe and Roe put before the bankruptcy court, though, we first explain what it means to willfully and maliciously injure someone in this unique context.

A

The easy part is explaining what "willful and malicious injury" means. A debtor willfully and maliciously injures a creditor if, acting without just cause or excuse, he knows or is substantially certain that his actions will cause injury. In re Trost , 735 F. App'x 875, 878 (6th Cir. 2018) ; accord Jendusa-Nicolai v. Larsen , 677 F.3d 320, 323–24 (7th Cir. 2012) (collecting cases). See also Kawaauhau v. Geiger , 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998) (explaining that 11 U.S.C. § 523(a)(6) contemplates "a deliberate or intentional injury , not merely a deliberate or intentional act that leads to injury").

The more complicated part is explaining what all that means in the context of a judgment under 18 U.S.C. § 2255 like Doe and Roe’s. As Geiger emphasizes, a debtor might act intentionally but simply not know that the act will cause injury. 523 U.S. at 61–62, 118 S.Ct. 974. That is typically the case with judgments involving negligence. In such cases, the creditor will need to show that the debtor knew injury would result from his actions to except the judgment from discharge. See id. ; In re Markowitz , 190 F.3d 455, 464–66 (6th Cir. 1999) (remanding for the bankruptcy court to determine whether the debtor knew his legal malpractice would cause injury).

But the law will sometimes presume that injury results from an act. Such is the case for false statements imputing a lack of chastity, which are defamatory per se. See In re Kennedy , 249 F.3d 576, 582–83 (6th Cir. 2001) (applying Michigan law). The law presumes that those statements will injure. Id. Thus, all a creditor needs to prove to except a defamation per se judgment from discharge is that the debtor knew the facts which made his statements actionable: that they were false and published without privilege to a third party. See id. ; cf. Wheeler v. Laudani , 783 F.2d 610, 615 (6th Cir. 1986) (the debtor must "know[ ] the published statements were false" because "[m]ere reckless disregard for the truth or falsity of the statement, which can support a libel verdict, is not a willful and malicious injury" under § 523(a)(6) ). The judgment precludes the debtor from arguing that he thought his words weren’t harmful. See Kennedy , 249 F.3d at 582–83. Any debtor who makes a knowingly false, defamatory per se statement is at least substantially certain that his statement will injure. Id. at 583.

Doe and Roe’s § 2255 judgment falls into this category. The law deems victims of child pornography "to have sustained damages of no less than $150,000 in value." 18 U.S.C. § 2255(a) (2006) (amended 2018). That’s a legal presumption of injury. And just as with defamation per se, the injury Doe and Roe suffered materialized the moment Boland created his doctored exhibits and published them in court. Boland II , 698 F.3d at 882, 884. So to convince the bankruptcy court that their judgment was the result of willful and malicious injury, Doe and Roe had to prove only that Boland knew he was dealing with child pornography, either when creating his exhibits or using them in court—in particular, that he knew the images of Doe and Roe depicted real minors. See 18 U.S.C. § 2256(8)(C) and (9). The law does the rest. Cf. Kennedy , 249 F.3d at 582–83.

B

Back to the bankruptcy court. Doe and Roe introduced plenty of evidence showing Boland knew Doe and Roe were real minors, at least by the time Boland used his exhibits in Ohio courtrooms. There was the pre-trial diversion agreement that Boland signed. He stipulated in that agreement that he "knew or should have known" the stock photographs of Doe and Roe "depicted real, identifiable minors" at the time he downloaded them, and that "[t]here was nothing about these images to suggest that they were not real identifiable children ...." There were also admissions Boland made through discovery in Doe and Roe’s civil case. Each photograph at the time of downloading, Boland admitted, "appeared to depict an actual minor." And then there was the circumstantial evidence. The Oklahoma prosecutors and judge warned Boland his exhibits were illegal. Boland was worried about being prosecuted for his exhibits, so he called Ohio federal prosecutors for advice and shipped his computer out of Oklahoma to his mother. Why would Boland, a lawyer and expert in image manipulation, be so concerned unless he knew the images he morphed depicted real minors? Not two years earlier, the Supreme Court struck down definitions of child pornography which covered images not depicting real children as unconstitutional. See Ashcroft v. Free Speech Coal. , 535 U.S. 234, 242, 256–58, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002).

Boland countered that he never used his exhibits after testifying in Oklahoma—they were "previously admitted as sealed court records" in Ohio courts, and he had no control over their display during his expert testimony. Nor did Boland know the images of Doe and Roe depicted real minors. They appeared to be real, but his ...