NOT FOR
PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 27923
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
DIETER OFFERMAN, Defendant-Appellant
On appeal, Offerman asserts that the circuit court erred by: 1) denying Offerman's motion to suppress evidence that was obtained as the result of an administrative subpoena; 2) failing to sua sponte recuse itself from sentencing Offerman; and 3) sentencing Offerman to unwarranted terms of imprisonment. We affirm.
BACKGROUND
On February 7, 2005, Special Agent Nixon Medina discovered videos and pictures of child pornography in a shared folder (4) on a Hawai‘i computer with Internet Protocol (IP) address 24.161.143.172. On February 15, 2005, the Attorney General of the State of Hawai‘i (Attorney General) served an administrative subpoena on Internet Service Provider (ISP) Oceanic Time Warner Cable (Oceanic), requesting subscriber information (5) regarding the customer who occupied that IP address during a specified period on February 7, 2005. The subpoena was two-sided and written on the back was a section entitled "RECIPIENT'S RIGHTS" (hereinafter the "Recipient's Rights Section"), which explained the rights of the recipient and the procedure for enforcing and contesting the subpoena. The subpoena also stated: "You are further commanded not to release any information concerning this subpoena without approval from the First Circuit Court, State of Hawaii. To do so could interfere with an on-going criminal investigation."
Oceanic did not object to the subpoena, and on February 22, 2005, it faxed Special Agent Medina a letter identifying Offerman as the occupant of IP address 24.161.143.172. on the date and time in question and providing Offerman's address, phone number, and user names.
On March 1, 2005, law enforcement authorities executed a search warrant for Offerman's residence and seized an iMac computer and numerous DVDs and CDs. A forensic examination of Offerman's computer, DVDs, and CDs revealed over 100 videos and images of child pornography.
After he was indicted, Offerman filed a motion to suppress evidence obtained as a result of the administrative subpoena, arguing that the subpoena was defective because it: 1) failed to "contain" a statement of the recipient's rights as required by HRS § 28-2.5(c)(4) (1993); (6) and 2) improperly commanded Oceanic to not release any information regarding the subpoena without approval from the circuit court. The circuit court denied the motion, and it issued the following conclusions of law in support of its decision:
CONCLUSIONS OF LAW
2. The requirements for an administrative subpoena are codified in Section 28-2.5(c) of the Hawaii Revised Statutes. One of the requirements is that the subpoena shall contain a short, plain statement of the recipient's rights and the procedure for enforcing and contesting the subpoena.
4. The Attorney General's office was not attempting to hide the Recipient's Rights by including it on the back of the document. In fact, the Department of the Prosecuting Attorney also utilizes a two-sided administrative subpoena with the recipient's rights located on the back of the document.
5. The language in AG subpoena No. 2005-033, which commanded the recipient of the subpoena, Oceanic Time Warner Cable, to not release any information concerning the subpoena without approval from the First Circuit Court, did not in any way deny Oceanic Time Warner Cable of its right to contest the subpoena or in any way inhibit Oceanic Time Warner Cable from its ability to seek counsel.
7. The language was not an absolute bar to disclosure. If Oceanic Time Warner Cable had an issue with non-disclosure then it was informed that it merely needed to raise the issue with the Circuit Court of the First Circuit.
Offerman entered conditional guilty pleas to both counts in this case and was sentenced to concurrent terms of imprisonment of ten and five years. Offerman filed a motion for reduction of sentence, which was denied on September 8, 2006.
I.
HRS § 803-47.6(d)(2)(D) (Supp. 2000) (7) and 18 U.S.C. § 2703(c)(2), (8) which is part of the federal Electronic Communications Privacy Act (ECPA) on which HRS § 803-47.6(d)(2)(D) was modeled, (9) require an internet service provider to disclose subscriber information if served with an administrative subpoena. The subscriber information provided by Oceanic in response to the Attorney General's subpoena was used to obtain a search warrant for Offerman's residence. The execution of the warrant resulted in the recovery of videos and images of child pornography from Offerman's computer, DVDs, and CDs.A.
Offerman contends that the subpoena did not "contain" the statement of rights and procedures required by HRS § 28-2.5(c)(4) because the Recipient's Rights Section was placed on the back side of the subpoena. We disagree. The subpoena served on Oceanic was a single piece of paper with print on both sides. The Recipient Rights Section appears in legible, bold print on the back side of the document. (10) Neither the plain language of HRS § 28-2.5(c)(4) nor its legislative history indicates that the Legislature intended to prohibit the placement of the required statement of rights and procedures on the back side of the subpoena. We conclude that the back side of the subpoena was part of the subpoena, and therefore, the subpoena issued to Oceanic contained the Recipient's Rights Section and complied with HRS § 28-2.5(c)(4).
B.
We are not aware of any authority (and none is cited by Plaintiff-Appellee State of Hawai‘i) that would permit the Attorney General to command the recipient of an administrative subpoena for subscriber information not to release information concerning the subpoena to the subscriber without approval from the circuit court. However, assuming that the Attorney General's non-disclosure directive was improper, we conclude that the inclusion of the non-disclosure directive in the subpoena does not warrant the suppression of evidence obtained as a result of the subpoena.
It is well settled that "the proponent of a motion to suppress has the burden of establishing not only that the evidence sought to be excluded was unlawfully secured, but also, that his own Fourth Amendment rights were violated by the search and seizure sought to be challenged." State v. Abordo, 61 Haw. 117, 120-21, 596 P.2d 773, 775 (1979); State v. Balberdi, 90 Hawai‘i 16, 21, 975 P.2d 773, 778 (App. 1999). We conclude that Offerman had no expectation privacy in the subscriber information obtained by the Attorney General's Office pursuant to the administrative subpoena. See Freedman v. America Online, Inc., 412 F. Supp. 2d 174, 181-83 (D. Conn. 2005); United States v. Sherr, 400 F. Supp. 2d 843, 848 (D. Md. 2005). Federal courts, which have examined this issue in the context of subscriber information obtained pursuant to the ECPA, have uniformly held that a subscriber does not have a reasonable expectation of privacy in the subscriber information he or she provides to an internet service provider. United States v. Perrine, 518 F.3d 1196, 1204-05 (10th Cir. 2008) (citing numerous cases reaching this result). Because the subscriber has no expectation of privacy in the subscriber information he or she provides, courts have denied motions to suppress evidence even when the evidence was derived from subscriber information obtained pursuant to a defective subpoena, summons, or court order. United States v. Hambrick, 55 F. Supp. 2d 504, 506-09 (W.D. Va. 1999) (defective subpoena), aff'd, 225 F.3d 656 (4th Cir. 2000); Sherr, 400 F. Supp. 2d at 848 (defective summons); United States v. Kennedy, 81 F. Supp. 2d 1103, 1108-10 (D. Kan. 2000) (defective court order).
In this case, Offerman failed to demonstrate that he had an expectation of privacy in the subscriber information disclosed by Oceanic in response to the subpoena. Offerman also did not demonstrate that he had a right to prior notification from Oceanic of its disclosure of his subscriber information. Oceanic's disclosure policy advised subscribers such as Offerman that "under ECPA the government may require [Oceanic] or your ISP to disclose subscriber record information (but not the content of communications) pursuant to a warrant, court order or subpoena without any notice to you and without your consent." (Emphasis added.) Accordingly, Offerman did not meet his burden of establishing that the non-disclosure directive in the in subpoena violated personally-held rights that warranted the suppression of the evidence. (11)
II.
Offerman argues that Judge Alm should have sua sponte recused himself because he was predisposed to impose harsh sentences on defendants in child pornography cases. We disagree.
Offerman did not request that Judge Alm recuse himself at any time during the trial court proceedings. We therefore review for plain error Offerman's claim that Judge Alm erred by failing to recuse himself. State v. Gomes, 93 Hawai‘i 13, 17-18, 995 P.2d 314, 318-19 (2000); State v. Lioen, 106 Hawai‘i 123, 128, 102 P.3d 367, 372 (App. 2004).
A.
Offerman suggests that comments Judge Alm made while previously employed as the United States Attorney for the District of Hawai‘i raised concerns that the judge was predisposed to impose harsh sentences in child pornography cases and thus should have recused himself. (12) At the hearing on his motion to reduce sentence, Offerman cited two newspaper articles appearing in 1998 and 1999 as support for his concerns. The articles contained comments made by Judge Alm while he was the U.S. Attorney indicating that the U.S. Attorney's Office took child pornography cases seriously and would vigorously pursue child pornography offenses.
We conclude that comments made by Judge Alm while he was the U.S. Attorney did not warrant his recusal. The cited comments fell considerably short of showing that Judge Alm lacked the ability to be fair and impartial. "[T]he mere fact that a judge has previously expressed an opinion on a point of law, or has expressed a dedication to upholding the law or a determination to impose severe punishment within the limits of the law upon those found guilty of a particular offense," is ordinarily not enough to "satisfy the requirements for disqualification under [28 U.S.C.] § 455(a)[ (13)]." United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (citations omitted); see also In re Bouslog, 41 Haw. 270, 279 (1956) ("[A]n impersonal prejudice resulting from the judge's background, association or experience . . . is not sufficient" to warrant disqualification); Southern Pacific Communications Co. v. American Tel. and Tel. Co., 740 F.2d 980, 990 (D.C. Cir. 1984) ("It is well established that the mere fact that a judge holds views on law or policy relevant to the decision of a case does not disqualify him from hearing the case."); City of Cleveland v. Cleveland Elec. Illuminating Co., 503 F. Supp. 368, 377 (N.D. Ohio 1980) ("It is not sufficient if the alleged bias or prejudice arises out of the judge's background and associations rather than his appraisal of the complaining party personally. . .").B.
Offerman contends that comments made by Judge Alm during the sentencing proceedings "evidence a bias or prejudice against defendants charged with child pornography offenses which clouded his ability to impartially sentence Offerman . . . ." Offerman specifically cites the following comments made by Judge Alm at Offerman's sentencing hearing: "And, you know, many words came to mind when I look at the, you know, the charges that you're faced with and that you have plead [sic] guilty to: horrifying, abusive, degrading, vile. Sad certainly stands out but exploitative certainly stands out as well." Offerman argues that these comments "evidence, at a minimum, an appearance of impropriety such that the judge should have sua sponte recused himself from sentencing Offerman." Offerman's arguments are without merit.
When viewed in context, Judge Alm's comments did not reflect an improper personal bias or prejudice or suggest an appearance of impropriety in his presiding over Offerman's sentencing. The record shows that Judge Alm's comments were made in reference to his having viewed some of the child pornography seized from Offerman and involved an expression of the judge's view that the child pornography offenses that Offerman committed were not victimless crimes:
The -- just briefly in what I saw was just very disturbing. You see anal penetration with what appears to be, I don't know, a three-year-old, four-year-old, five-year-old. The image that stays with me that -- that I found, you know, that I thought it was disturbing was that a child was being raped. The little girl was on her back, she looked to be, I don't know, five, six, seven, and the rapist's hands went virtually all the way around her leg, her upper thigh, which showed how small she was.
And of course no faces of the offenders were shown but that's not surprising. And, you know, many words came to mind when I look at the, you know, the charges that you're faced with and that you have plead [sic] guilty to: horrifying, abusive, degrading, vile. Sad certainly stands out but exploitative certainly stands out as well. And it certainly is true that if there is no market for this, there is a reduced likelihood that something would happen to begin with.
(Emphasis added.)Under HRS §
706-606 (1993), a sentencing court is required to consider a number of
factors, including 1) the nature and
circumstances of the offense; and 2) the need for the sentence imposed
to reflect the seriousness of the offense, to provide
just punishment for the offense, and to afford adequate deterrence to
criminal conduct. Judge Alm's comments were made
in the course of his analysis of the factors he was required to
consider under HRS § 706-606 and were related to his
application of these sentencing factors to Offerman's case. Because
Judge Alm's comments were made in furtherance of
the requirements of HRS § 706-606, the fact that Judge Alm
described the evidence he reviewed and the nature,
circumstances, and seriousness of Offerman's offenses in harsh terms,
"without more, cannot be construed as an expression
of the judge's bias or prejudice." State v. Ortiz, 91 Haw.
181, 195-97, 981 P.2d 1127, 1141-43 (1999) (holding that the
judge's comments during sentencing that the defendant was a "menace to
society" and had devoted his life to a pursuit of
financial gain through crime were not improper and did not warrant the
judge's disqualification upon retrial); see Liteky v.
United States, 510 U.S. 540, 555 (1994) (stating that "opinions
formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible"). Based on our
review of the record, we find nothing to indicate that Judge Alm
harbored any bias, prejudice, or
predisposition that warranted his recusal in this case.
III.
Offerman contends that Judge Alm abused his discretion in imposing concurrent indeterminate terms of imprisonment that were unwarranted and unduly harsh.
A sentencing judge generally has broad discretion in imposing a sentence. The applicable standard of review for sentencing or resentencing matters is whether the court committed plain and manifest abuse of discretion in its decision. Factors which indicate a plain and manifest abuse of discretion are arbitrary or capricious action by the judge and a rigid refusal to consider the defendant's contentions.
State v. Kahapea, 111 Hawai‘i 267, 278, 141 P.3d 440, 451 (2006) (brackets and quotation marks omitted; block quote format changed).We conclude that Judge Alm did not abuse his discretion in imposing sentence. Judge Alm thoroughly discussed and explained his application of 1) the factors to be considered in imposing a sentence set forth in HRS § 706-606 and 2) the factors to be considered in determining whether to impose a term of probation set forth in HRS § 706-621 (1993 & Supp. 2007). Judge Alm's remarks show that he found and weighed factors both in favor of and against Offerman.
Clearly, Judge
Alm's evaluation of the relevant sentencing factors and the weight he
assigned to them differed from that
recommended by Offerman. However, the weight to be given relevant
sentencing factors is a matter generally left to the
discretion of the sentencing court, and that court is "afforded wide
latitude in the selection of penalties from those
prescribed . . . ." State v.
Akana, 10 Haw. App. 381, 386, 876 P.2d 1331, 1334 (1994). The
Legislature determined that a
person convicted of the child pornography offenses committed by
Offerman may be sentenced to indeterminate terms of
imprisonment of ten and five years, with the Hawai‘i Paroling Authority
responsible for determining the actual term of
imprisonment the defendant would serve before being paroled. See HRS §§
706-660 (1993), 706-669 (1993 & Supp.
2007), and 706-670 (1993 & Supp. 1996). It was within Judge Alm's
discretion to evaluate and weigh the relevant
sentencing factors differently than Offerman.
CONCLUSION
The April 7, 2006, Judgment of the circuit court is affirmed.
DATED: Honolulu, Hawai‘i, July 17, 2008.
On the briefs:
Phyllis J. Hironaka
1. The Honorable Steven S. Alm presided.
2. HRS § 707-751(1)(a) (Supp. 2007) provides:
3. HRS § 707-752(1)(a) (Supp. 2007) provides:
4. Files in a "shared folder" can be accessed by other internet users.
5. The subpoena sought "the identity of the account holder and all sub-accounts, billing address, method of payment, account status, and the address of service if different from the billing address."
6. HRS § 28-2.5 (1993) provides in relevant part as follows:
(b) The attorney general, when conducting a civil, administrative, or criminal investigation, or the county prosecuting attorneys, when conducting a criminal investigation in their respective jurisdictions, may, subject to the privileges enjoyed by all witnesses in this State, subpoena witnesses, examine them under oath, and require the production of any books, papers, documents, or other objects designated therein or any other record however maintained, including those electronically stored, which are relevant or material to the investigation.
(1)
Shall state the name of the issuing authority and
shall command each person to whom it is directed to attend
and give
testimony at the time and place specified therein, and may also command
the person to whom it is
directed to produce
books, papers, documents, or other objects specifically designated
therein;
(3)
Shall require attendance of the witness only in the
county wherein the witness is served with the subpoena or
at such
other place as is agreed upon by the witness and the issuing authority;
provided that if the subpoena
is served in a county
other than that in which the witness resides or is employed or
transacts the witness'
business in person,
the issuing authority
shall bear the expense of travel by the witness to and attendance at
the place named in
the subpoena to the same extent as
provided by the rules of court; and
(Emphasis added.)
7. At the time relevant to this case, HRS § 803-47.6(d)(2)(D) (Supp. 2000) provided as follows:
. . .
8. 18 U.S.C. § 2703(c)(2) provides as follows:
(A) name;
(C) local and long distance telephone connection records, or records of session times and durations;
(E)
telephone or instrument number or other subscriber
number or identity, including any temporarily
assigned network
address; and
9.
See
Sen. Stand. Comm. Rep. No. 1362, in 1989 Senate Journal at 1316
(discussing bill the became Act 164, 1989 Haw.
Sess. L. Act 164, at 304-23); Sen. Stand. Comm. Rep. No. 3318, in 2000
Senate Journal at 1384 (discussing bill that
became Act 91, 2000 Haw. Sess. L. Act 91, at 183-84). 10.
Offerman does not dispute that the Recipient's
Rights Section satisfied the content requirements of HRS §
28-2.5(c)(4),
namely, "a short, plain statement of the recipient's rights and the
procedure for enforcing and contesting the subpoena." 11.
Marsland v. First
Hawaiian Bank, 70 Haw. 126, 764 P.2d 1228 (1988), a case cited
by Offerman, is distinguishable. Marsland involved a prior
version of HRS § 28-2.5 (Supp. 1987) which precluded the Attorney
General from issuing an
administrative subpoena "when the matter under investigation is the
subject of a civil or criminal adjudication, or when the
attorney general or a designated subordinate, determines that an
adjudication is more probable than not," in which case the
attorney general was "subject to the relevant rules of court and shall
exercise subpoena powers no different than those
available to the probable opposing party." Marsland, 70 Haw. at 129
n.3, 764 P.2d at 1230 n.3. The Prosecuting Attorney
for the City and County of Honolulu (Prosecutor) had issued an
administrative subpoena to a bank for customer records in
circumstances where the use of an administrative subpoena was
prohibited under HRS § 28-2.5 but arguably permitted
under a city ordinance. Id.
at 127-32, 764 P.2d at 1229-32. The bank refused to honor the subpoena,
and the trial court
denied the Prosecutor's motion to compel production of the subpoenaed
documents. Id. at
127-28, 764 P.2d at 1229-30. On appeal, the Hawai‘i Supreme Court held
that the Prosecutor derived its prosecutorial power from the Attorney
General
and thus was bound by the restrictions set forth in HRS § 28-2.5. Id. at 130-32, 764 P.2d at
1230-32. Because HRS § 28-2.5 precluded the Prosecutor's use of an
administrative subpoena to obtain the subpoenaed records, the court
upheld the
denial of the Prosecutor's motion to compel. Id.
12.
At the hearing on Offerman's motion to reduce
sentence, Offerman raised concerns that Judge Alm was predisposed to
impose a harsh sentence based on comments made by the judge during his
prior employment. Offerman quotes portions of
the hearing transcript in which he raised these concerns in the
statement-of-the-case section of his opening brief and refers
to this transcript in his points of error on appeal. The argument
section of Offerman's brief, however, does not contain any
argument relating to comments made by Judge Alm during his prior
employment. We therefore may disregard Offerman's
argument on this point as waived. See Hawai‘i Rules of
Appellate Procedure (HRAP) Rule 28(b)(7) (2008) ("Points not
argued may be deemed waived.") In any event, as discussed infra, we reject Offerman's
contention. 13.
Title 28 U.S.C. § 455(a), which is
entitled "Disqualification of justice, judge, or magistrate judge,"
states as follows:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
28
U.S.C. § 455(a) is similar to Canon 3(E)(1) of the Hawai‘i Revised
Code of Judicial Conduct, which provides, in
pertinent part, that "[a] judge shall disqualify himself or herself in
a proceeding in which the judge's impartiality might
reasonably be questioned . . . ."