Jane Doe v. Dean Boland

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0016p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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JANE DOE, c/o her guardian and next friend;
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PETER LORA; JANE ROE, c/o her guardian and
next friend; VICTORIA BLOOM, -
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No. 09-4281
Plaintiffs-Appellants, ,>
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v.
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DEAN BOLAND, -
Defendant-Appellee. -
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N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 07-02787—Dan A. Polster, District Judge.
Argued: December 8, 2010
Decided and Filed: January 19, 2011
Before: SUTTON and GRIFFIN, Circuit Judges; BERTELSMAN, District Judge.*

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COUNSEL
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.

*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

1
No. 09-4281 Doe et al. v. Boland Page 2

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OPINION
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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.
No. 09-4281 Doe et al. v. Boland Page 3

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
No. 09-4281 Doe et al. v. Boland Page 4

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.
No. 09-4281 Doe et al. v. Boland Page 5

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.
No. 09-4281 Doe et al. v. Boland Page 6

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 view, let alone
possess, existing child pornography without governmental oversight, it is hardly
surprising that Congress opted not to permit expert witnesses to create and possess new
child pornography.

Without an exemption for this kind of expert testimony, Boland argues, a
defendant’s right to put on an effective defense under the Sixth Amendment would be
hindered, requiring a narrowing of the civil-remedy provisions under the constitutional-
avoidance doctrine. Neither premise of the doctrine applies. “[T]he canon of
constitutional avoidance has no application in the absence of statutory ambiguity.”
United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 494 (2001). And no
constitutional principle at any rate allows a criminal defendant to defend one criminal
charge by urging his lawyer or witness to commit another. Otherwise, an individual on
trial for a murder-by-stabbing charge could try to prove that the knife was not long
No. 09-4281 Doe et al. v. Boland Page 7

enough to kill someone by using it to stab someone else in the middle of the trial. Or
individuals on trial for counterfeiting or manufacturing drugs might be able to make
more of the contraband as part of a defense. See State v. Brady, 894 N.E.2d 671, 679
(Ohio 2008). If the Constitution is not a “suicide pact,” Terminiello v. City of Chicago,
337 U.S. 1, 37 (1949) (Jackson, J., dissenting), it is not an instrument of crime either.

Even when federal law allows participants in the criminal justice system to
possess contraband, it does not allow the creation and possession of new contraband. Cf.
21 U.S.C. § 885 (immunizing federal, state and local officials from civil or criminal
liability when they are “lawfully engaged in the enforcement” of federal drug laws).
Individuals cannot defend criminal charges by having their lawyers or witnesses initiate
new offenses. Cf. ABA Model Code Canon 7, DR 7-102 (“In his representation of a
client, a lawyer shall not . . . [k]nowingly engage in . . . illegal conduct.”).

Nor do reasonable limits on defense counsel’s access to the child pornography
at issue in a criminal case, whether old or new, raise constitutional concerns. In United
States v. Paull, the defendant argued that the absence of an exception in § 2252A for his
counsel to possess child pornography violated his right to a fair trial. 551 F.3d 516, 524
(6th Cir. 2009). Noting that the defendant had made “no allegations that the government
used the law to disrupt his defense,” we disagreed. Id. at 525. The defendant “could
have worked with the district court and the government to ensure that he could put on
the defense he wanted. But he chose not to.” Id.; see also United States v. McNealy,
625 F.3d 858, 868 (5th Cir. 2010) (restrictions on a defense expert’s ability to possess
child pornography do not violate the fair trial rights of defendant); United States v.
Shrake, 515 F.3d 743, 745–46 (7th Cir. 2008) (the Walsh Act does not violate a
defendant’s Fifth and Sixth Amendment rights).

Boland separately argues that the civil-remedy provisions do not apply because
the Oklahoma district court in Shreck permitted him to create and possess these images.
But that is not what happened. The Shreck judge did not authorize Boland to violate the
pornography laws, and Boland did not seek permission to do so. Boland offered, and
obtained permission, to present expert testimony and images illustrating the difficulty
No. 09-4281 Doe et al. v. Boland Page 8

of establishing Shreck’s “knowledge” that he possessed child pornography because
digital-imaging technology makes it difficult to know if an image represents an actual,
as opposed to a virtual, child. R.84-1 at 8.

None of this authorized or required the creation or possession of new child
pornography. Boland could have illustrated the difficulty of discerning real from virtual
images by combining two innocent pictures into another innocent picture. Or, if Boland
wished to use pornography to make the point, he could have morphed an image of an
adult into that of a minor engaging in sexual activity. Boland indeed did the latter as
part of his preparations, and had he stopped there we would not be here. These images
are not prohibited by federal law, see 18 U.S.C. § 2252A(c), and are protected by the
First Amendment to the extent they are not obscene, see Ashcroft v. Free Speech
Coalition, 535 U.S. 234, 250–51 (2002).

Boland did something else. He morphed images of minors into pornography,
images that “implicate the interests of real children.” Id. at 242. The law expressly
covers such images, 18 U.S.C. § 2256(8)(C), and the reality that Boland himself did not
“use” real children to produce the images makes no difference, see id. § 2252A(c). Free
Speech Coalition did not address the constitutionality of § 2256(8)(C), and any potential
First Amendment challenge to it is not now before us. Once Boland modified the images
of the minors, he crossed the line between possessing lawful images and violating the
statute.

After Boland had finished testifying in the Shreck case and after the prosecutors
had raised concerns about the legality of Boland’s testimony, it is true, the district court
judge said that the images were “prepared expressly at court order.” R.77-2 at 141. But
that statement cannot change what happened. Boland had already violated § 2252A(a)
before he stepped into the courtroom, and at no point before the hearing had the judge
given him permission to create and possess new child pornography. All the judge said
before the hearing was: “Defendant’s expert should be prepared to address [the topic of
virtual pornography] with information regarding financial costs of producing virtual
images, the amount of time needed to produce an image, as well as the skill level
No. 09-4281 Doe et al. v. Boland Page 9

required in order to achieve results which can pass for ‘real’ images.” R.84-1 at 9.
Perhaps appreciating the point, the same court later said (through a different judge; the
first one retired) that Boland had no right to possess the images. The court held that
Boland, as Shreck’s counsel, “can sufficiently make [his] arguments and points relating
to the ease of creating digital images that are indistinguishable from actual images, . . .
without creating images that depict minors in sexually explicit situations.” Shreck, slip
op. at 17. In the last analysis, this simply is not the case Boland claims it is: that of one
federal court authorizing him to do something and of another federal court punishing him
for it.

Nor is this a case in which state law authorized Boland’s conduct while federal
law punished it. Ohio law provides immunity from state child pornography statutes if
the images are used for “bona fide judicial purposes.” See Ohio Rev. Code. Ann.
§§ 2907.321(B)(1), .322(B)(1), .322(B)(3). But this immunity does not help Boland.
It applies if there was a “bona fide” need to create and possess these images, and Boland
has not shown how that was so, given the other means at his disposal to illustrate the
difficulty of discerning real from virtual images. And it cannot be invoked in the Ohio
courts in this setting. In State v. Brady, the defendant argued that the absence of an
exemption for possessing these kinds of images in the federal child pornography laws
precluded him from receiving a fair trial in state court on state law child pornography
charges and required dismissal of the case. 894 N.E.2d at 677. The Ohio Supreme
Court disagreed, holding that it was “axiomatic that an expert’s conduct must conform
to the law.” Id. at 679.

Neither does the size of the damages award for one of the civil remedies establish
that it does not apply in this setting. Section 2255(a) creates a cause of action for anyone
“who suffers personal injury as a result of such violation,” permits the recovery of
“actual damages,” then says that actual damages per violation “shall be deemed to [be]
. . . no less than $150,000 in value.” Perhaps, one might say, Congress could not have
meant to treat images of children that were innocent as photographed (and later morphed
into pornographic images) the same as images of children that were pornographic from
No. 09-4281 Doe et al. v. Boland Page 10

the outset, particularly if at least $150,000 must be awarded in damages for each
violation. That is one way of looking at the all-inclusive nature of the prohibition—that
Congress did not expect conduct like Boland’s to violate the statute.

But it is not the only way. Congress instead might have been focused on the
victims and wanted to avoid painful damages hearings without regard to how the
defendants created the images. Once both kinds of images are created and run the risk
of becoming accessible to the public, Congress rationally could conclude that all affected
children are seriously injured and deserve a high threshold amount of damages. Either
way, the words Congress chose offer no basis for drawing this kind of line, and it is not
our place to second guess the judgment Congress put into law when we “interpret, rather
than author, the federal criminal code.” Oakland Cannabis, 532 U.S. at 495 n.7.

If we follow the words of the statute where they take us, Boland warns, then all
manner of participants in the criminal justice system will become subject to similar civil
actions, as they too often “possess” these types of pornography. The argument has more
bark than bite. A series of common law immunities prevents such actions, and nothing
in the child pornography laws purports to overrule these immunities.

Section 1983 offers a good place to start. Even though § 1983 provides broadly
for civil remedies for the violation of constitutional and statutory rights, “[c]ertain
immunities were so well established . . . when § 1983 was enacted” that the Court
“presume[s] that Congress would have specifically so provided had it wished to abolish
them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). Because the “legislative
record gives no clear indication that Congress meant to abolish wholesale all
common-law immunities,” Pierson v. Ray, 386 U.S. 547, 554 (1967), the Court has held
that § 1983 “is to be read in harmony with general principles of tort immunities and
defenses,” Imbler v. Pachtman, 424 U.S. 409, 418 (1976). These immunities include
absolute immunity for judges, grand jurors and prosecutors in carrying out their official
duties, see id. at 422–24 & n.20, and for defense counsel when they make defamatory
statements in court, id. at 439 (White, J., concurring in the judgment).
No. 09-4281 Doe et al. v. Boland Page 11

There is no reason to think that this “cluster of immunities,” Butz v. Economou,
438 U.S. 478, 512 (1978), applicable to § 1983 (and Bivens) actions, does not apply
equally to actions under the child pornography laws. Nothing in the text of that statute
suggests Congress intended to “impinge on a tradition so well grounded in history and
reason.” Tenney v. Brandhove, 341 U.S. 367, 376 (1951). We reached a similar
conclusion in Cullinan v. Abramson, which held that the civil RICO statute did not
abolish common law absolute immunity for judges and prosecutors. “It would be
anomalous,” we reasoned, “if officials who are immune from suit for alleged violations
of the Constitution itself should be denied immunity from suit for alleged violations of
a statute that does not incorporate the Constitution—particularly a statute as amorphous
as RICO.” 128 F.3d 301, 307–08 (6th Cir. 1997).

Absolute immunity, it is true, also extends to witnesses, but it does not apply to
the kind of conduct at issue here. The “immunity of parties and witnesses from
subsequent damages liability for their testimony in judicial proceedings was well
established in English common law,” and accordingly § 1983 “does not allow recovery
of damages against a private party for testimony in a judicial proceeding” even if the
testimony constituted perjury (and even assuming the witness was acting under color of
state law). Briscoe v. LaHue, 460 U.S. 325, 329–30 (1983). But this defense originated
as an immunity “only against suits for defamation,” Burns v. Reed, 500 U.S. 478, 501
(1991) (Scalia, J., concurring in the judgment in part and dissenting in part), and is
limited to in-court statements. That some “acts may ultimately lead to witness testimony
does not serve to cloak these actions with absolute testimonial immunity.” Spurlock v.
Satterfield, 167 F.3d 995, 1001 (6th Cir. 1999). Otherwise, if immunity “relate[d]
backwards,” a witness could shield his illegal conduct from suit simply by presenting the
fruits of his conduct at trial. Gregory v. City of Louisville, 444 F.3d 725, 738–39 (6th
Cir. 2006). Because Boland created and possessed the images prior to testifying in
court, he has no claim to any such immunity.

In view of these conclusions, we need not reach other defenses Boland has raised
and that the district court has not yet considered. Boland, for example, argues that the
No. 09-4281 Doe et al. v. Boland Page 12

children did not suffer “personal injury,” as required under § 2255, because the parties
have stipulated that each child does not know about the images. The fact that Congress
has set such a sizeable damages threshold ($150,000) may suggest that the personal
injury requirement is a serious one. He also argues that none of the plaintiffs can show
they are “aggrieved” under § 2252A(f). And it is possible that constitutional defenses
remain. We entrust the initial resolution of these issues to the capable hands of the
district court judge.

III.

For these reasons, we reverse the district court’s judgment and remand the case
for further proceedings.