Posted by BNB Quiz Questions:
1. Once a person is found to have committed a 21 U.S.C. § 841(a) drug violation, does subsection 841(b)(1)(C) require an additional mens rea for the death-results enhancement to apply?
2. Does Google’s “hash-value matching” procedure—an automated determination that an image’s hash value matches the hash value of an image previously determined by a human Google employee to be CSAM—constitute a valid “private search” for Fourth Amendment purposes?
3. In a prosecution for CSAM production, may an otherwise innocent image of a nude minor child constitute “sexually explicit conduct” (i.e., a lascivious exhibition) under 18 U.S.C. § 2256(8)?
Eleventh Circuit Opinions:
“Should a man spend the rest of his life in prison because his drugs were stolen?” In US v. Lebarron, the Eleventh Circuit answered: Yes. Lebarron was sentenced to two life sentences for drug conspiracy and drug distribution crimes that resulted in a death under 21 U.S.C. § 841(b)(1)(C). At trial, he was not permitted to argue as a defense against the distribution charge that the victim stole the drugs that caused her to overdose. The district court reasoned that “according to the law, if you possess with intent to distribute a controlled substance, even if you didn’t actually distribute it . . . because somebody stole it first, you’re still guilty.” In other words, actual distribution to the victim of the death-resulting drugs was irrelevant. Thus, the government was not required to prove that Lebarron intended to give drugs to the victim or even knew she stole his drugs. The majority elaborated that “once a defendant is convicted under subsection 841(a), the language of subsection 841(b)(1)(C) is clear that there is not an additional mens rea analysis required for its sentence enhancement to apply.” Accordingly, Lebarron’s life sentences were affirmed on the basis that he violated § 841(a) by possessing drugs with intent to distribute, that he distributed drugs, and that the victim’s death resulted from his drugs. The court ultimately landed on the troubling conclusion that a man could indeed spend life in prison because his drugs were stolen. [By Roz Chang].
Under the “private search doctrine,” agents are allowed—without a warrant—to “replicate and verify” a private party’s earlier search (even if the private party’s search was unreasonable). In US v. Brillhart, the Eleventh Circuit explored whether humans have to be involved in order for the “private search” doctrine to apply. When Google detects a file suspected to be child sex abuse material (CSAM), it compares the file’s “hash value” (think of it as a digital fingerprint) to the hash values of all the images in an existing Google repository of files previously determined by a human Google employee to be CSAM. If there’s a match, Google alerts law enforcement. If there is no match, then a human Google employee reviews the file to see if it is CSAM. If it is, the file gets added to the CSAM database, and Google alerts law enforcement. In Brillhart, the panel held that Google’s procedure was a valid “private search” that did not implicate the Fourth Amendment. So, if CSAM is flagged by Google, and law enforcement later views and seizes the files without a warrant, that is constitutionally permissible. At the end of the day, Google’s procedure still requires that a human, at some point, verify that the image is CSAM. Thus, the human element of certain Fourth Amendment doctrines remains relevant—for now. [By Sean Young].
Using hidden spy cameras, Rivera surreptitiously recorded his girlfriend’s minor daughter in various states of undress. Convicted at trial of two counts of production and one count of attempted production of CSAM, Rivera argued on appeal that the images he produced did not constitute “sexually explicit conduct” under 18 U.S.C. § 2256(8). He maintained that the images of the girl undressing did not rise to a lascivious exhibition of the anus, genitals, or pubic area, as required by the statute. In US v. Rivera, the Eleventh Circuit rejected this argument. Relying upon US v. Holmes, 814 F.3d 1246, 1247 (11th Cir. 2016), the panel held that depictions of otherwise innocent conduct by a minor (e.g., getting dressed) could constitute a lascivious exhibition based on the actions of the individual creating the depiction. Here, there was ample evidence to show that Rivera intended to produce a lascivious exhibition of the minor’s genitals or pubic area. Such evidence included Rivera placing the hidden cameras in the minor’s bedroom, where it could be expected that the minor would be undressing; arranging the cameras to focus on the minor’s dresser, which contained her underwear and bras; and retaining a handful of still frames from the recorded videos that depicted the minor’s exposed breasts, buttocks, and pubic area. As such, Rivera intended to produce a lascivious exhibition of the minor in violation of 18 U.S.C. § 2256 and was guilty of producing CSAM. [By Steve Johnson].
Answers:
1. No, the automatic nature of 21 U.S.C. § 841(b)(1)(C)’s death-results application means that a separate and additional mens rea finding is not required once a violation of subsection 841(a) is established.
2. Yes, Google’s “hash-value matching” procedure constitutes a valid “private search,” so the 4A does not require agents to seek a search warrant.
3. Yes, an innocent image of a nude minor child may constitute “sexually explicit conduct” under 18 U.S.C. § 2256(8), but the answer depends upon the intent of the adult who produced the image.
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