Mark Giancola Defense Lawyer

Duty, Privilege and Immunity

My Journey Defending a Federal Child Pornography Prosecution
As criminal defense attorneys, we are ethically obligated to provide competent and effective legal representation to our clients. For one South Dakota attorney, however, the pursuit of competence landed him on the wrong side of the law.

Leo Thomas Flynn is a practicing attorney licensed in the state of South Dakota.  The majority of his practice centers on criminal defense, however, he also takes some family law cases.  Mr. Flynn shares an office with two other attorneys. 

On July 21, 2009, Mr. Flynn left his law office at approximately 9:00 a.m. As he was walking toward his car, he was approached by ICE Agent Charla Aramayo and SDBCI Investigator Troy Boone, members of the Internet Crimes Against Children Task Force (ICAC), a multi-jurisdictional task force consisting of federal, state, and local law enforcement officials. The agents informed Mr. Flynn that they had a search warrant for his law office because two different members ICAC had downloaded child pornography from a computer with an IP address that registered to his law office. Mr. Flynn - innocently and without hesitation - immediately told law enforcement that the pornography was from his computer, and that he had been doing some research for a client related to child pornography and the availability/existence of child pornography on the Limewire network.

Shortly thereafter, Mr. Flynn agreed to give a statement to law enforcement. In that statement, he explained that he was a criminal defense attorney. He explained that he had been conducting an investigation in order to provide legal advice to a client.  And, he explained that his clients' identities were privileged.

The investigators told Mr. Flynn that he had been distributing child pornography over the internet and that his story was ridiculous. They even told him that a jury would never believe his story.  The investigators also told Mr. Flynn that he had a problem with child pornography, and it was time to admit it so that he could get on with the rest of his life.  Throughout the interview process, the investigators kept badgering Mr. Flynn to reveal the identities of his clients, and they told him that the attorney-client privilege didn't apply to his particular situation.

Despite the unique circumstances involved, Mr. Flynn was indicted for two counts of distribution of child pornography and one count of possession of child pornography in violation of 18 U.S.C. Č▀ 2252. And because Mr. Flynn practiced frequently in South Dakota Federal Court, the case was conflicted out to the U.S. Attorney's Office for the District of Minnesota.

When I met with Mr. Flynn, I was shocked and surprised that the federal government was pursuing the prosecution. More so after Mr. Flynn showed me SDCL 22-24A-19, a state statute immunizing attorneys from prosecution for possession of child pornography so long as they are possessing it the course of their official duties. Unfortunately, there is no concomitant federal statute, and it became very clear that the federal prosecutor had no intention of honoring South Dakota's immunity statute.
Outrage and indignation drove a serious discussion about strategy and tactics as we began planning his defense. The key to defending this case was getting a federal judge to recognize South Dakota's immunity statute. As such, we filed various pretrial motions claiming that Mr. Flynn's prosecution at the hands of the federal government violated his rights under the First and Tenth Amendments to the United States Constitution.

Magistrate Judge, The Honorable John Simko declined to dismiss the indictment on constitutional grounds, but he indicated that 18 U.S.C. Č▀ 2252 might be overbroad on occasion. Deciding to proceed on a case by case analysis, he stated that: ?─˙it is the defendant's right to deny that his alleged possession of child pornography was in violation of 18 U.S.C. Č▀ 2252, but he must demonstrate more than his membership in the South Dakota Bar Association to successfully defend against the charge.?─¨ 4:10-cr-40012-LLP, Docket 29, p.9.

At this point, we felt that there was a good chance of getting a jury instruction on SDCL 22-24A-19. But, according to our scheduling order, jury instructions were not to be discussed until a week prior to trial. This would obviously not work for us because whether we got a jury instruction or not drove our entire defense/case. In short, this case was never ab out whether or not Mr. Flynn possessed child pornography - it was always about whether we could get a judge to apply the protections of SDCL 22-24A-19 to a federal prosecution.  If we could get some sort of instruction, we thought we at least had a fighting chance.  If we could not get some sort of jury instruction on SDCL 22-24A-19, we would simply enter a conditional plea under Fed R.Crim.Pro. 12, and then appeal the pre-trial rulings.
So, we filed a formal motion asking the court to timely consider the issue of granting a jury instruction on SDCL 22-24A-19 creating an affirmative defense. The Honorable Lawrence L. Piersol concluded that ?─˙an attorney acting in accordance with SDCL 22-24A-19 is not precluded from asserting the operation of this statute as an affirmative defense in a federal child pornography prosecution brought against him if the evidence at trial supports such a defense.?─¨ 4:10-cr-40012-LLP, Docket 33, p.6. Accordingly, we would get an instruction if we presented credible evidence at trial. But, Judge Piersol made it clear that the defense would not be available for the distribution counts.

In response to Judge Piersol's ruling, the prosecution filed a superseding indictment adding one count of receipt of child pornography. Additionally, the prosecution received the assistance of the Department of Justice in the form of Alexandra Gelber, an accomplished attorney with the  Child Exploitation Unit in Washington DC who travels around the country assisting with prosecutions of this type. The DOJ then examined Mr. Flynn's computer several more times, whereby two additional superseding indictments were filed - the last one two weeks prior to trial. It was incredible; rarely in my career have I seen a prosecution so focused on obtaining a conviction: they even filed a motion trying to prevent Mr. Flynn from testifying on his behalf two days into trial.

Ultimately, the battle plans were drawn - we had two primary goals, and we knew exactly how we were going to achieve them. Our first goal was to prove by a preponderance of the evidence that Leo Thomas Flynn was acting in the course of his official duties. To do that, we would have to teach the jury what an attorney is. And, we would have to explain the duties and obligations of a lawyer. Then, we would teach the jury about the attorney-client privilege, and we would explain when and how the attorney-client relationship was formed.

We would also have to explain to the jury, that for every period of time that child pornography was found on Mr. Flynn's computer, he was working on a particular investigation. For example, the pornography from March of 2008 dealt with a divorce client who found the material/disk from her husband's computer. Likewise, the June 2009 Limewire material dealt with the concerns of a long distance trucker (who had dealt with Mr. Flynn in the past) who had possibly downloaded child pornography while navigating through the world of Limewire.

In its attempt to discredit Mr. Flynn, the prosecution went to great lengths to try and show that Mr. Flynn was not acting as an attorney when he possessed, viewed, and received child pornography. The prosecution attempted to introduce misleading evidence such as unidentifiable and unretrievable images from Mr. Flynn's unallocated space on his hard-drive. The prosecution tried to prejudice Mr. Flynn by attempting to flood the jury with legal, but clearly inflammatory, pornography. And, the prosecution tried to overwhelm the jury with horrific file titles - files that seemed to describe the worst possible pornography, but in actuality contained perfectly legal and oftentimes innocuous images.
Naturally, it became of great import to show that Mr. Flynn had none of the characteristics or traits so often associated with individuals accused of these types of offenses. Take a look at any search warrant, federal or state, they are all pretty similar. At some point, the investigating officer swears to a judge that: (1) child pornography has endearing value to those who view it; (2) that the material is rarely if ever destroyed; (3) that the material is kept in a secret or safe place - usually at a person's home; (4) that the material is collected or hoarded; (5) that the material is placed on disks, diskettes, tapes, cds, or alternate hard-drives; (6) that the material often found in encrypted or encoded files; (7) the material is often placed in secret files or deceiving file names or file-paths; and (8) the material or computers are often booby-trapped.

 Mr. Flynn did not meet any of the eight criteria or characteristics listed immediately above, so it was critical to effectively relay this to the jury.  On cross-examination we went over the case agent's search warrant application in great detail, and then we painstakingly asked - one by one - if Mr. Flynn met any of the criteria listed above - which we knew he did not. The effect was profound.
Our second goal was to show the jury that Mr. Flynn did not knowingly distribute child pornography over the internet.  The basis for the distribution counts centered on members of ICAC downloading four videos from Mr. Flynn's computer via his Limewire account. When he was confronted by law enforcement, Mr. Flynn was shocked to find out that he had actually distributed anything over his computer. He had no idea that people could go onto his computer and download anything that he had previously downloaded from Limewire.

Limewire - although currently shut down by the federal government - is still accessible and functional to those individuals that have previously downloaded its installation software. There have been several versions of Limewire software available for installation over the years. What Mr. Flynn didn't know is that Limewire's default settings automatically set up a shared folder which others can view and download from. The various versions of Limewire instruct/inform its users differently.  In the version of Limewire that Mr. Flynn installed, the instructions/information related to default file sharing was removed from the installation process and placed in the End User Licensing Agreement.
Nobody ever reads an end user licensing agreement.  So, we decided that we would show the various Limewire installation instructions - or the lack thereof - to the jury. Mr. Flynn would also testify as to his lack of computer understanding.  And, Mr. Flynn's office mates would testify to his lack of computer savvy as well. I thought it would also be important to get a good definition of ?─˙distribute?─¨ in one of the jury instructions, because after all, ?─˙distribute?─¨ is an action word meaning ?─˙to deliver?─¨, and Mr. Flynn took no action.  They - law enforcement - took it from him. He did nothing. I remember at one point in my closing argument asking the jury: ?─˙If you order a pizza, and don't hear a knock on the door from the pizza guy, has that pizza been delivered??─¨  I think that was pretty effective, as several jurors nodded their heads in agreement with the point I was trying to make.
Ultimately, it was brutal fight. And, there were more than a few heated discussions out of the presence of the jury.  Finally, after four days of trial, and six hours of deliberation, the jury had reached a verdict. Not Guilty on all five counts.

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