US v. Barry Gitarts

Filing 920090828

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5003

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BARRY E. GITARTS, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O'Grady, District Judge. (1:07-cr-00464-LO-1)

Submitted:

July 29, 2009

Decided:

August 28, 2009

Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jonathan L. Katz, JON KATZ, P.C., Silver Spring, Maryland, for Appellant. Dana J. Boente, United States Attorney, Jay V. Prabhu, Assistant United States Attorney, Josh Goldfoot, Tyler G. Newby, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Barry defraud (2006). the E. Gitarts States, a was in convicted violation of of of 18 conspiracy U.S.C. § to 371

United He

received Gitarts

sentence

eighteen issues on and

months' appeal: remote

imprisonment. (1) evidence

raises

several of

obtained

from

searches

his

home

computer server should have been suppressed; (2) the indictment should have been dismissed for failing to sufficiently charge a crime; (3) statements made by Gitarts during questioning at his residence properly should lay in have the been Eastern suppressed; District of (4) venue did (5) not the

Virginia;

district court improperly admitted business records in violation of the Confrontation Clause; (6) the evidence against him was insufficient to support the conviction; (7) the district court abused its discretion in providing the indictment to the jury during its deliberations; and (8) his sentence was unreasonable. We affirm.

I.

Searches of Gitarts's Home and the TSV Server Gitarts asserts that the searches executed on his home

and

on

the have

TSV

server,

a

computer

server the

located

in

Texas, lacked

should

been

suppressed

because

authorities

probable cause. motion to

In reviewing the district court's ruling on a we review 2 the district court's factual

suppress,

findings for clear error and its legal determinations de novo. United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). The

facts are reviewed in the light most favorable to the prevailing party below. Cir. 2007). The relevant inquiry when reviewing the propriety of the issuance of a search warrant is whether, under the totality of the circumstances, the issuing judge had a substantial basis for concluding there was probable cause to issue the warrant. See Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The facts United States v. Jamison, 509 F.3d 623, 628 (4th

presented to the issuing judge need only convince a person of reasonable caution that contraband or evidence of a crime will be found at the place to be searched. 730, 742 (1983). Texas v. Brown, 460 U.S.

Reviewing courts afford great deference to a See Gates, 462 U.S. at

magistrate's finding of probable cause. 236. It probable is clear The that the TSV

warrant

was in

supported of

by the

cause.

affidavits

presented

support

warrant explicitly detailed the information given to the FBI by the Recording an Industry underground Crew Association music piracy and of America ("RIAA") known as of the

concerning Apocalypse pirated

conspiracy its

Production A

("aPC")

distribution worked with

material.

confidential

informant

RIAA, allowing the RIAA to access infringing music files stored 3

on the TSV server and download them directly to an independent contractor provided working the with the RIAA. On this basis, the RIAA

government

with

(1) infringing

music

titles

downloaded by the independent contractor from TSV; (2) transfer logs showing such downloads; (3) sample screen shots of the

downloads; (4) a listing of several TSV directories; (5) logs of chat groups between aPC members. This information was

independently analyzed and confirmed by the FBI.

The FBI then

learned the location of the server by way of its IP address, and through the server's internet service provider ("ISP"). In

light of the great deference due to the judgment of the issuing magistrate, Gates, 462 U.S. at 236, we find that probable cause supported the issuance of the warrant for the TSV server. We reach the same result regarding the affidavit In

supporting the warrant for a search of Gitarts's residence.

addition to incorporating the information in support of the TSV warrant, the affidavit contained further information linking

Gitarts to aPC and the TSV server.

Records turned over by the

ISP indicated that Gitarts was paying for the TSV's ISP services from his New York residence. Records from PayPal, an online

money transfer service, indicated a monetary transfer from Paul Davis, the leader of aPC, to Gitarts. data contained the on the TSV as an server Moreover, analysis of that on someone than had one

indicated

accessed

server

administrator 4

more

occasion

from

a

computer

located

at

Gitarts's

residence.

Therefore, we find that probable cause supported issuance of the warrant for a search of Gitarts's residence.

II.

Statements Made by Gitarts

Gitarts next contends the district court erroneously determined Gitarts was not in custody at the time he gave

statements to authorities during the search of his apartment. Therefore, according to Gitarts, the district court erred in denying the motion to suppress his statements. Statements obtained from an individual during a

custodial interrogation are presumptively compelled in violation of the Fifth Amendment, unless the Government shows that law enforcement officers adequately informed the individual of his Miranda 1 rights and secured a waiver of those rights. United An

States v. Cardwell, 433 F.3d 378, 388 (4th Cir. 2005).

individual is in custody for Miranda purposes when, under the totality of the circumstances, the individual's "freedom of

action is curtailed to a degree associated with formal arrest." Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (internal

quotation marks and citation omitted).

Thus, an individual may

still be "in custody" even when informed that he is not under
1

Miranda v. Arizona, 384 U.S. 436 (1966).

5

arrest,

if

a his

"reasonable situation

man to

in be

[his] one of

position

would

have

understood

custody."

United

States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal quotation marks and citation omitted). Here, questioning. Gitarts was not in custody during his

Gitarts was questioned in his own home in the He was not handcuffed or otherwise

presence of his family.

restrained, was not told he was under arrest, and was told he could leave at any time. See United States v. Parker, 262 F.3d

415, 419 (4th Cir. 2001) (finding no Miranda violation where subject questioned in own home, without restraint, and never told she was not free to leave). Accordingly, because a

reasonable person in Gitarts's situation would not have felt his freedom was curtailed to the degree associated with a formal arrest, Miranda was not implicated during Gitarts's questioning. Therefore, the district judge did not err in denying Gitarts's motion to suppress.

III. Denial of Motion to Dismiss Indictment Next, Gitarts contends that the district court erred in denying his pretrial motion to dismiss his indictment for failure to sufficiently charge a crime. Where a district

court's denial of a defendant's motion to dismiss an indictment depends on a question of law, we review de novo the propriety of 6

such a denial. Cir. 2009).

United States v. Hatcher, 560 F.3d 222, 224 (4th Rule 7(c)(1), Fed. R. Crim. P., provides, in

pertinent part:

"The indictment or information must be a plain,

concise, and definite written statement of the essential facts constituting attorney for the the offense charged and must be signed by an the

government."

Gitarts

contends

that

indictment is not sufficiently plain, concise, or definite, and fails to contain the "essential facts constituting the offense charged." Gitarts's assertion lacks merit. The indictment

clearly delineates the scope of the online piracy conspiracy, in which Gitarts, in cooperation with others, "would obtain, rip, . . . and distribute copyrighted music files to group-affiliated Internet file storage sites . . . throughout the world." furtherance administered of a that computer conspiracy, server in Gitarts Texas in paid order for "to In and store

hundreds of unauthorized copies of copyrighted works." the indictment was clearly adequate.

We find

IV.

Venue

Gitarts next contends that his conviction should be reversed for improper venue, as he "was never alleged to have been physically present in the Eastern District of Virginia, nor

7

to have known of any conspiracy-related activity taking place in the Eastern District of Virginia." We review de novo a district court's ruling on a

motion to dismiss for improper venue. 256 F.3d 231, 238 (4th Cir. 2001).

United States v. Stewart, The U.S. Constitution and

Rule 18 of the Federal Rules of Criminal Procedure require that a criminal defendant be tried for an offense in the district where the offense was committed. United States v. Cabrales, 524

U.S. 1, 6-7 (1998); United States v. Ebersole, 411 F.3d 517, 524 (4th Cir. 2005) ("As a general proposition, venue is proper in any district where the subject crime committed.") "It is well-

accepted that there may be more than one appropriate venue, or even a venue in which the defendant has never set foot, so long as it meets the relevant constitutional and statutory

requirements."

United States v. Johnson, 510 F.3d 521, 524 (4th

Cir. 2007) (internal quotation marks and citation omitted). Here, the indictment alleged sufficient conspiracy-

related activity to justify venue in the Eastern District of Virginia. The indictment alleged that a former leader of aPC

used his access to a computer server located in the Eastern District additional conspiracy. connection of Virginia to reward for aPC various their member aPC members in with the

copyrighted In

works an

involvement using an of

addition, in

internet Virginia

located

the

Eastern 8

District

downloaded an infringing work from the TSV server paid for and administered by Gitarts. As the sole purpose of the conspiracy

was to gain access to additional infringed works, these actions in furtherance of the conspiracy are sufficient to place venue in the Eastern District of Virginia, despite the fact that

Gitarts alleges he was never physically present in the district.

V.

Business Records

Gitarts next alleges that the trial court violated his Sixth Amendment rights in allowing the Government to introduce business records into evidence through "declarations of

purported records custodians" instead of the live testimony of a records custodian. Gitarts alleges that such records are

testimonial, and are therefore inadmissible under Crawford v. Washington, 541 U.S. 36 (2004). Where evidentiary issues relate to an asserted

violation of the Sixth Amendment, the appropriate standard of review employed by courts of appeal is de novo. United Under

States v. Robinson, 389 F.3d 582, 592 (6th Cir. 2004). Crawford, the Confrontation Clause of the Sixth

Amendment

prohibits the introduction of out-of-court testimonial evidence unless the witness is unavailable and the defendant has had a prior opportunity for cross-examination. 541 U.S. at 68.

9

However, records are not

Crawford

explicitly evidence. to

states 541

that U.S.

business at of err 56. the in

testimonial are not and

Therefore,

they

subject the

the

requirements did not

Confrontation

Clause,

district

court

allowing the introduction of the business records. 2

VI.

Sufficiency of the Evidence

Next, Gitarts contends that the evidence presented to the jury was insufficient to support the jury's finding of

guilt. be

Specifically, Gitarts asserts that his conviction should because the Government failed to introduce

reversed

certificates of copyright registration in order to demonstrate infringement and generally failed to prove the existence of a conspiracy, or that Gitarts was part of any conspiracy.

Subsequent to briefing, Gitarts filed notice pursuant to Fed. R. App. P. 28(j) advising this Court of the Supreme Court's recent decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009). In Melendez-Diaz, the Supreme Court applied Crawford to preclude the admission into evidence of "certificates of analysis" detailing the results of forensic testing performed on seized cocaine. See id. at 2542. Gitarts asserts that Melendez-Diaz requires "the exclusion of business records and all other testimonial hearsay" and requests oral argument, or, in the alternative, briefing on this issue. However, because Melendez-Diaz explicitly reaffirms Crawford's holding that traditional business records are not testimonial evidence, we conclude that Melendez-Diaz does not advance Gitarts's position. See id. at 2539-40.

2

10

"A

defendant

challenging

the

sufficiency

of

the

evidence faces a heavy burden."

United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008). We review a sufficiency of the evidence challenge by whether, viewing the evidence in the light most

determining

favorable to the Government, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. United States v. Collins, 412 F.3d 515, 519 (4th Cir. We

2005); see Glasser v. United States, 315 U.S. 60, 80 (1942).

review both direct and circumstantial evidence, and accord the Government all reasonable inferences from the facts shown to those sought to be established. F.3d 326, 333 (4th Cir. 2008). In order to prove conspiracy to defraud the United States, the Government must demonstrate: "(1) the existence of United States v. Harvey, 532

an agreement, (2) an overt act by one of the conspirators in furtherance of the objectives, and (3) an intent on the part of the conspirators to agree, as well as to defraud the United States." 1986). to United States v. Tedder, 801 F.2d 1437, 1446 (4th Cir. Though Gitarts asserts that the Government was required certificates of registration in order to

introduce

demonstrate copyright infringement, this contention is without merit. While he may be correct that the Government must "show certificate registration 11 to maintain a copyright

copyright

infringement action," Gitarts overlooks the fact that he was not prosecuted for criminal infringement of copyright. In so doing,

Gitarts "confuses the offense of criminal conspiracy with the substantive goal of the conspiracy." 376 F.3d 236, 238 (4th Cir. 2004). United States v. Tucker, In a prosecution for

conspiracy, the Government need not prove "that the object of the conspiracy was achieved or could have been achieved, only that the parties agreed to achieve it." record indicates that the Government Id. Our review of the sufficient

provided

evidence to allow a rational trier of fact to find the essential elements of the conspiracy beyond a reasonable doubt.

VII. Submission of Indictment to the Jury As contends the final challenge to his erred conviction, in Gitarts the

that

the

district

court

submitting

indictment to the jury.

In support of this argument, Gitarts

lists roughly ten paragraphs of the indictment that he asserts contain allegations not established at trial. We review a district court's decision to submit an indictment to the jury for abuse of discretion. See United

States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986) ("The submission matter of an the indictment district to the jury is a discretionary irrelevant

with

court.")

Generally,

allegations contained in the indictment should be redacted prior 12

to

its

submission

to

the

jury.

See

id.

However,

if

no

redaction occurs, there is no reversible error so long as "the jury is unequivocally instructed that the indictment is not

evidence, that the indictment is distributed solely as an aid in following the court's instructions and the arguments of counsel, and that certain counts should be disregarded as irrelevant to the defendants currently before the district court." Here, the district court specifically Id. informed the The

jury that the indictment was not evidence of any kind.

court also stated that the Government was not required to prove all the methods of conspiracy alleged in the indictment, but that, in order to convict, every juror must agree on at least one alleged method of conspiracy engaged in by Gitarts. Because

the court unequivocally informed the jury that the indictment was not evidence, and that it could consider nothing but the evidence presented before it, the court did not abuse its

discretion in submitting the indictment to the jury.

VIII. Gitarts district court asserts was

Sentencing Issues that the sentence in two imposed respects. by the When

unreasonable

considering the reasonableness of a sentence, we review legal conclusions de novo and factual findings, such as loss

13

calculations, for clear error. F.3d 210, 261 (4th Cir. 2008). Gitarts incorrectly offense level. first the

United States v. Abu Ali, 528

contends amount in an

that of loss

the

trial

court his

calculated

arising

from

conduct,

resulting

improperly

elevated

offense

Though loss must be established by a preponderance of

the evidence, the district court "need only make a reasonable estimate of the loss, given the available information." States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). district court appropriately considered the loss United

Here, the calculation

and, after hearing extensive argument from both sides regarding the loss evidence, acted reasonably by accepting the estimate of the government. merit. Next, Gitarts contends that the district court erred by adding two points to his offense level for obstruction of justice. Under U.S. Sentencing Guidelines Manual ("USSG") We therefore find this issue to be without

§ 3C1.1 (2003), If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant's offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.

14

Specific examples of such behavior include the destruction of evidence, USSG § 3C1.1, cmt. n.4(d), and providing a materially false statement to a law enforcement officer, USSG § 3C1.1, cmt. n.4(g). lied to Here, the evidence at trial was persuasive that Gitarts federal investigators on more than one occasion and

attempted to overwrite the hard drive of his computer in an attempt to destroy the evidence of his crimes. Accordingly, we

find that the district court did not err in increasing Gitarts's offense level for obstruction of justice. Therefore, sentence. we affirm Gitarts's conviction and

We deny Gitarts's request for oral argument because

the facts and legal contentions are adequately presented in the materials before the court, and argument would not aid the

decisional process. AFFIRMED

15