596 B.R. 532
6th Cir. BAP2019Background
- Dean (Jack) Boland, an attorney and expert in digital imaging, created "morphed" pornographic images by digitally combining innocuous photos of real children with sexually explicit material and used them as demonstrative exhibits in criminal trials.
- Boland entered a Pre-Trial Diversion Agreement in federal court admitting he knowingly possessed images he had created that depicted real, identifiable minors as engaging in sexually explicit conduct; he issued a public apology incorporated into the agreement.
- Two victims sued under 18 U.S.C. § 2255/2252A(f) and obtained $300,000 in statutory civil damages ($150,000 each); district court and Sixth Circuit rejected Boland's First and Sixth Amendment and state-immunity defenses.
- Boland later filed Chapter 7 bankruptcy; the victims filed an adversary proceeding seeking a § 523(a)(6) determination that the § 2255/2252A debt was nondischargeable as willful and malicious injury.
- Bankruptcy court held the debt dischargeable, finding plaintiffs failed to prove Boland intended to injure or was substantially certain injury would follow; plaintiffs appealed.
- BAP reversed: collateral estoppel did not bar relitigation of subjective intent, but the Panel concluded the prior stipulations and appellate rulings established Boland knowingly created/possessed pornographic images of real children and, given his expertise and conduct, he was substantially certain and acted without legal justification — satisfying willful and malicious elements under § 523(a)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collateral estoppel precludes Boland from denying he was substantially certain his conduct would injure the victims | Doe: prior civil litigation and Boland's diversion stipulations established facts including knowledge that images depicted real minors and resulting injury, so intent (substantial certainty) is precluded | Boland: intent to injure was not litigated in the prior proceeding; those proceedings did not require a finding of intent to harm | Court: Issue preclusion does not apply to subjective intent because it was not actually litigated or necessary in prior actions |
| Whether Boland's creation/possession/publication of morphed images was a "willful" injury under § 523(a)(6) | Doe: creating and publishing morphed images that invaded privacy/reputation was the injury; Boland, given expertise and conduct, intended or was substantially certain harm would result | Boland: motive was to assist courts/defendants; he did not intend to harm and lacked subjective awareness that harm was substantially certain | Court: Focusing on legally protected interests (privacy/reputation), evidence shows Boland knew and was substantially certain his conduct would harm — willful intent satisfied |
| Whether the injury was "malicious" under § 523(a)(6) (i.e., without justification or excuse) | Doe: prior federal and state rulings rejected Boland's legal justifications (First/Sixth Amendment and state judicial-purpose exceptions), so conduct was without legal excuse | Boland: actions were for bona fide judicial/expert purposes and constitutionally protected | Court: Legal defenses were rejected by district court, Sixth Circuit, and Ohio Supreme Court; conduct was without justification — malicious element satisfied |
| Effect of Diversion Agreement stipulations on issues in bankruptcy adversary | Doe: Diversion Agreement admissions (knowingly possessed images of real minors, created morphed depictions) are binding and establish knowing possession and related facts | Boland: Diversion Agreement did not resolve subjective intent to injure; it addressed possession/creation but not the willful intent element | Court: Diversion Agreement and prior rulings preclude denial of knowing creation/possession of images, but not subjective intent; however, separate evidence supports intent and malice for § 523(a)(6) |
Key Cases Cited
- Kawaauhau v. Geiger, 523 U.S. 57 (Sup. Ct.) (willful injury requires intent to cause the consequences, not merely the act)
- Markowitz v. Campbell (In re Markowitz), 190 F.3d 455 (6th Cir.) (Sixth Circuit test: willful = desire to cause consequence or belief that consequence is substantially certain)
- Doe v. Boland, 698 F.3d 877 (6th Cir.) (appellate decision affirming statutory damages and describing injury as invasion of privacy/reputation from morphed images)
- Doe v. Boland, 630 F.3d 491 (6th Cir.) (earlier opinion addressing constitutional and immunity defenses)
- Wheeler v. Laudani, 783 F.2d 610 (6th Cir.) (malice under § 523(a)(6) means conscious disregard of duties or lack of justification)