In re: DEAN MAYNARD BOLAND, Debtor. JANE DOE; JANE ROE, Plaintiffs-Appellants, v. DEAN MAYNARD BOLAND, Defendant-Appellee.
No. 17-8019
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
Decided and Filed: February 13, 2019
19b0001p.06
Before: BUCHANAN, DALES, and HUMPHREY, Bankruptcy Appellate Panel Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION. On Appeal from the United States Bankruptcy Court for the Northern District of Ohio at Cleveland. No. 16-10250—Jessica E. Price Smith, Judge. Argued: May 8, 2018.
ARGUED: Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants. Stephen D. Hobt, Cleveland, Ohio, for Appellee. ON BRIEF: Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants. Stephen D. Hobt, Cleveland, Ohio, for Appellee.
HUMPHREY, J., filed the opinion of the Bankruptcy Appellate Panel in which BUCHANAN, J., joined. DALES, J. (pp. 27–28), filed a separate opinion concurring in the result.
GUY R. HUMPHREY, Bankruptcy Appellate Panel Judge. Appellants, Jane Doe and Jane Roe, appeal a determination of the bankruptcy court that a civil judgment for statutory damages awarded pursuant to
I. ISSUES ON APPEAL
The issues Appellants raised are:
- Whether the bankruptcy court erred when it discharged damages imposed upon Debtor pursuant to
18 U.S.C. § 2255 as a penalty for committing criminal conduct prohibited by18 U.S.C. § 2252A by finding that Debtor was not substantially certain that he would injure the two minor Plaintiffs when he morphed their images into child pornography for public display as [court] exhibits [in criminal cases]. - Whether the Doctrine of Collateral Estoppel precluded Debtor from denying in an adversary proceeding that he was substantially certain his actions would cause injury because it was determined . . . in prior litigation between identical parties.
Statement of Issues Presented for Appeal, Adv. No. 16-01058 ECF No. 53.
As will be explained, the majority finds that the bankruptcy court did not err in determining that collateral estoppel did not apply on the issue of whether debtor Dean Boland intended to injure the Appellants since intent to injure was not actually litigated or necessary to the outcome of the prior federal litigation. However, the Panel concludes that the stipulations Boland made through his Pretrial Diversion Agreement and the decisions rendered by the United States District Court for the Northern District of Ohio and the Sixth Circuit Court of Appeals on the issue of his civil liability to Appellants established as a matter of law that Boland knowingly created and possessed pornographic images involving images of real children. Further, because the bankruptcy court misapprehended the nature of the harm the Appellants suffered, the Panel holds that the bankruptcy court made clearly erroneous findings as to Boland‘s intent to harm. The bankruptcy court did not consider the legal injury suffered by the Appellants as a result of
II. JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel, and no party has timely filed to have this appeal heard by the district court.
A determination of the dischargeability of a debt presents mixed questions of law and fact. Kraus Anderson Capital, Inc. v. Bradley (In re Bradley), 507 B.R. 192, 196 (B.A.P. 6th Cir. 2014). The appellate court “must break it down into its constituent parts and apply the appropriate standard of review for each part.” Id. (citing Bank of Montreal v. Official Comm. of Unsecured Creditors (In re Am. HomePatient, Inc., Inc.), 420 F.3d 559, 563 (6th Cir. 2005) (citations omitted)). Legal determinations are reviewed de novo and factual findings are reviewed under the clearly erroneous standard. Bradley, 507 B.R. at 196. “Mixed questions are not all alike.” U.S. Bank N.A., Trustee ex rel. CWCapital Asset Mgmt. v. Village at Lakeridge, LLC, U.S., 138 S. Ct. 960, 967 (2018). “[T]he standard of review for a mixed question all depends—on whether answering it entails primarily legal or factual work.” Id.
III. FACTS
Dean Boland, now known as Jack Boland, a lawyer licensed in Ohio, was an expert witness and defense counsel for criminal defendants charged in federal and state child pornography cases. His expertise was to demonstrate that pornographic images may be manipulated or altered to appear that minors were engaged in sexual conduct when they were not. To demonstrate this point, Boland purchased innocent images of minors from web pages that sold stock photos and included the images of those minors in pornographic images by altering or “morphing” the images. This type of expert testimony was apparently considered important because the defendants in these criminal cases argued they did not knowingly view or possess child pornography.
In 2004, an issue was raised while Boland was testifying as an expert witness in the criminal case of United States v. Shreck in the United States District Court for the Northern District of Oklahoma as to whether Boland committed a crime in creating and displaying these images of child pornography. Boland was instructed by the judge presiding over that case to delete the images from his computer. While Boland deleted the images from his computer, he did not permanently remove the images from his computer. Apparently fearing that he may be prosecuted in the Northern District of Ohio upon his return to Ohio if he flew back with the images on his computer, Boland shipped his computer by Federal Express to his mother in Ohio.
As a result of an investigation and a negotiation between Boland and the United States Attorney, on February 5, 2007, Boland voluntarily entered into a Pre-Trial Diversion Agreement (the “Diversion Agreement“)1 in the United States District Court for the Northern District of Ohio. The Diversion Agreement stated:
It appearing that you, Dean M. Boland, committed an offense against the United States from on or about March 16, 2004 through April 1, 2004, in violation of
Title 18, United States Code, Section 2252A(a)(5)(B) ,2 in that you did knowingly possess a computer and computer disks that contained images of child pornography, as defined inTitle 18, United States Code, Section 2256(8) ,3 to wit, visual depictions created, adopted and modified to appear that Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, each a minor child, whose identity is known to the United States Attorney‘s Office . . . was engaging in sexually explicit conduct, and which child pornography was produced using materials that had been shipped and transported in interstate and foreign commerce by any means including by computer.
Pre-Trial Diversion Agreement (“Trial Ex. 1“) at 1-2, Adv. No. 16-01058 ECF No. 42-2 (footnotes added).4 A stipulation of facts was entered into on April 5, 2007 between Boland and the United States Attorney as part of the Diversion Agreement:
- Between February, 2004, and March 15, 2004, Dean M. Boland (Boland) connected to the Internet from his home and office in the Northern District of Ohio. During that time period, and while connected to the Internet, Boland downloaded at least four (4) images, from the Internet, depicting four (4) real, identifiable minors in innocent poses. Boland knew or should have known that such images depicted real, identifiable minors. Boland downloaded two (2) such images from Istockphoto.com, a website located in Canada. Boland downloaded two (2) such image from websites hosted by Webe web, located in the State of Florida.
- Boland digitally manipulated such images and combined them with other images to create a series of visual depictions. Such visual depictions were created, by Boland, to appear that each of the four (4) real, identifiable minors engaged in sexually explicit conduct.
- Boland created and used these visual depictions in his capacity as an attorney and/or witness in a variety of criminal cases in several different courts. Between March, 2004 and January, 2005, Boland transported such visual depictions to, and/or displayed such visual depictions in courts in Summit, Columbiana, Hamilton and Warren Counties, in the State of Ohio, as well as in U.S. District Court in Tulsa, Oklahoma.
Id. at 9. In addition, Boland was required to issue a Public Statement in the Cleveland Bar Journal that was incorporated by reference into the Diversion Agreement. Boland stated that:
In a previous issue of the Cleveland Bar Journal, as well as in certain articles published in the Plain Dealer and the Columbus Dispatch, I have made certain statements regarding a federal investigation surrounding my creation and use, in court, of certain digital images.
In preparation for my testimony, as an expert witness on behalf of defendants, in child pornography cases in several counties in Ohio as well as Federal District Court in Tulsa Oklahoma, I created a series of trial exhibits. I downloaded images, from the Internet, depicting four minors in innocent poses. There was nothing about these images to suggest that they were not real identifiable children and I now know that they were in fact real. I then digitally manipulated such images and combined them with images depicting sexual conduct to create a series of visual depictions. Such visual depictions were created, by me, to appear that each of the four children was engaged in sexually explicit conduct. Despite my good faith belief that my actions taken in my capacity as an expert witness were appropriate under the circumstances, I do recognize that such images violate federal law.
I created the images solely for use in court, and indeed, only used the images in the course of my testimony as an expert witness. While the Ohio Revised Code includes an exception in its child pornography statutes for material used for a judicial purpose, the United States Code contains no such statutory exception. While I do not agree with the law and feel that an exception for judicial purposes is constitutionally mandated, current federal law contains no such exception. I acknowledge that federal authorities based upon a good faith belief, acted reasonably in their effort to enforce federal criminal law and was therefore, wrong for making disparaging comments about the involved investigators and prosecutors. They did act appropriately in their enforcement of federal criminal laws and the protection of the children depicted. I also realize that while I only used the visual depictions in my efforts to educate judges and juries as to the issues surrounding virtual child pornography, it is wrong to do so with the images of innocent children. Believing that all images were to be utilized in court without further exposure or distribution, it was never my intention to harm any child. Accordingly, I apologize to each child and their respective parents and/or guardians for any embarrassment or harm they suffered from the public dissemination of this material.
Id. at 10. The Diversion Agreement placed certain requirements on Boland but did not impose any damages. Id. at 3-6.
In September 2007 two of the minors, depicted in the sexual images Boland created, sued him under
Initially, the district court determined that the liability under these facts could raise Sixth Amendment right to counsel issues, would be unfair in that Boland created the images under a federal court directive in Oklahoma, and raised comity issues with the Ohio state courts since Ohio provided a statutory exception for a bona fide judicial purpose. Lora v. Boland, No. 1:07 CV 2787, 2009 WL 2901306 (N.D. Ohio Sept. 1, 2009). The Sixth Circuit reversed and remanded, finding no exception for expert witnesses and left any constitutional issues for the district court to resolve. Doe v. Boland, 630 F.3d 491 (6th Cir. 2011).
[W]hether any of the Plaintiffs are “persons aggrieved” entitling them to monetary damages under
§ 2252A(f) ; whether the minor Plaintiffs suffered “personal injury” under§ 2255 as a result of the criminal violations; whether the definition of child pornography in§ 2256(8)(c) violates the First Amendment; and whether the application of the federal child pornography statutes to an expert witness in Boland‘s circumstances violates the Sixth Amendment right to effective counsel.
Lora v. Boland, 825 F. Supp. 2d 905, 907 (N.D. Ohio 2011).
On summary judgment, the district court determined that the Appellants suffered personal injury and were persons aggrieved under
Informed by that decision as well as his independent analysis, the judge in the statutory damages case found, as many cases had before, that “‘morphed’ child pornography is not protected speech[.]” Boland, 825 F. Supp. 2d at 912. Additionally, the district judge noted that an expert witness could make this same point without victimizing minors, and he rejected the argument that these restrictions amount to a denial of the Sixth Amendment right to counsel. Id. at 912-13. The court awarded damages of $300,000, $150,000 for each victim. Upon a second
Boland subsequently filed a Chapter 7 bankruptcy petition in the Bankruptcy Court for the Northern District of Ohio. Appellants filed an adversary proceeding, asserting the damages awarded under
The second request of the Motion in Limine sought to prevent Mr. Boland from denying that he “was substantially certain that he would cause injury to the plaintiffs when he morphed their images into child pornography . . . .” There is nothing in either the Diversion Agreement or the District Court opinion regarding the intent to injure. Since the issue of intent to injure was not fully and fairly litigated in the prior proceeding and the issue of intent was not necessary to the judgment, the second request of the Plaintiffs’ Motion in Limine was denied.
Accordingly, the only issue in this trial is intent to injure . . . .
Doe v. Boland (In re Boland), Adv. No. 16-1058, 2017 WL 2312854, at *1-2 (Bankr. S.D. Ohio May 26, 2017) (emphasis added).
The trial occurred on May 10, 2016. There were three witnesses.
Sullivan testified that when Boland testified as a defense expert witness in a federal criminal proceeding in Oklahoma and used the altered images for demonstrative purposes, “the prosecution became concerned that what he had done in court may have violated federal law, and the – I believe it was the Judge at that time ordered him at the end of that hearing to delete the images that he had just shown in court.” Tr. 19:4-9.
Boland, following only the strict letter of the Judge‘s instructions, did not destroy the images, but did delete them from the computer he had at the trial. As Sullivan explains:
I interviewed an Assistant County Prosecutor . . . that had attended a continuing legal education seminar, of which Mr. Boland was presenting. And in interviewing the prosecutor, Mr. Boland had at that time joked about the Judge ordering him to purge his – purge these pictures, and joking that, you know, I deleted them by hitting the delete button, kind of mocking the Judge, knowing that just deleting them that way didn‘t purge them from his system.
Tr.19:20-20:5. Sullivan testified Boland used one picture in a subsequent criminal trial and two pictures in another, both in Ohio state court proceedings. Tr. 20:9-13.
In addition, Michael A. Sullivan, an Assistant United States Attorney for the Northern District of Ohio, testified that during the civil litigation Boland denied, during discovery, that the victims in the civil case were the same as referenced in the Diversion Agreement. Boland filed amended discovery responses because such a position was in contradiction of the Diversion Agreement and could have voided its terms.
The only other witness was Boland. Boland testified about his résumé, which was up-to-date for the time the relevant events occurred. See Tr. Ex. 5. Boland explained that he was aware
Boland testified in the bankruptcy court as to his expert testimony provided in the Shreck case. During the hearing or trial, but following Boland‘s testimony in Shreck, the United States Attorney in Oklahoma raised concern about whether Boland may have violated “certain criminal child pornography statutes.” Tr. 52:24-5:13. Boland testified that:
The Judge admonished me because I left the witness stand and communicated with defense counsel my concern that the prosecutors were preparing to arrest me in association with my testimony that day. So the defense attorneys . . . asked that the Court give me an admonishment on the record to protect me from potential action by the prosecutors. Then the Court, in fact, did that admonishment while noting to the prosecutors that my testimony in that case was I had no knowledge whether any of the individuals were even real people, much less their identity, and therefore the Court stated there‘s no way he violated the law and it would be Orwellian to arrest him after creating these exhibits that I asked him to come here and create.
Tr. 53:13-54:2.7 As noted, Boland deleted those images from his computer as requested by the judge; however, he subsequently answered questions about those same images in other cases,
Boland testified repeatedly that he did not know what generated law enforcement‘s concern except that the word “crime” was used and he did not know if that was because real children may have been used in his created images. Nevertheless, Boland did acknowledge that he sent his computer by Federal Express to his mother because of his concern about whether his actions would be interpreted, erroneously in his view, as unlawful. Despite the resolution of the issue in Oklahoma, he did not know if the Cleveland FBI or the United States Attorney‘s Office in Cleveland might conclude he had violated the law.
He did not inform anyone associated with the Ohio criminal cases about the possible law enforcement concerns raised in Oklahoma. Boland stated that he only testified as an expert in Ohio because he believed Ohio explicitly authorized it by statute. Boland also testified he had no legal obligation to determine if the downloaded pictures of the minors were real.
Following the trial, the bankruptcy court determined that the judgment was dischargeable because Appellants failed to meet their burden under
The bankruptcy court focused on Boland‘s motivation for his actions as an expert. The decision stated that Boland only created these images as a consultant and expert witness. The court noted that the depictions which Boland created from the minors’ images were only displayed in court and appeared to give significance to Boland‘s lack of control over the images during the Ohio criminal proceedings that occurred after the Shreck trial in Oklahoma. The court also addressed the Appellants’ argument that, following his testimony in the Shreck case, Boland was on fair notice as to the possible criminality of his actions. The bankruptcy court commented that Boland‘s testimony that the images were in sealed court records and out of Boland‘s control was undisputed. The court gave significant weight to Boland‘s statement that he did not know if the innocent images purchased on the internet were real children.
The court determined that Jane Doe and Jane Roe failed to establish the necessary intent and, therefore, failed to meet their burden to show Boland commited a willful injury within the meaning of
There was no evidence offered by Plaintiffs contradicting Mr. Boland‘s stated reason for why he downloaded innocent images of what appeared to be minors and altered them to be used in courtroom demonstrations. There was also no evidence offered by the Plaintiffs demonstrating that Mr. Boland actually intended harm to the Plaintiffs, or knew it was virtually certain to occur.
Boland, 2017 WL 2312854 at *3. The court did not address the element of malice.
IV. ANALYSIS
A. Dischargeability Under 11 U.S.C. § 523(a)(6)
The Bankruptcy Code does not discharge an individual‘s debt that a creditor can prove was “for willful and malicious injury by the debtor to another entity or to the property of another entity[.]”
Shortly after the Supreme Court‘s issuance of Geiger, the Sixth Circuit decided Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464 (6th Cir. 1999). In Markowitz the court held that a willful injury occurs when the debtor “desires to cause consequences of his act, or . . . believes that the consequences are substantially certain to result from it.” Id. (citing Restatement (Second) of Torts § 8A). In the Sixth Circuit, this is a subjective standard. Markowitz, 190 F.3d at 464. See Trost v. Trost (In re Trost), 735 F. App‘x. 875, 878 (6th Cir. 2018); Brown v. Ausley (In re Ausley), 507 B.R. 234, 240 (Bankr. W.D. Tenn. 2014); Hamerly v. Salupo (In re Salupo), 386 B.R. 659, 669 (Bankr. N.D. Ohio 2008). It does not matter if a reasonable, objective person would have been aware of the consequences of his or her action; if the debtor did not subjectively intend those consequences or was not subjectively aware that the consequences were substantially certain to occur then the debtor‘s action was not willful.9 The debtor, however, need not intend or anticipate the precise nature of the injuries suffered, only that injury would ensue from his acts. Yeager, 553 B.R. at 111 (”Geiger does not stand for the proposition that the debtor must intend to cause the precise injury that resulted (i.e., a leg injury)).”
The other required element of
Beginning with the second issue on appeal, Appellants seek a determination that the bankruptcy court erred in failing to apply collateral estoppel or issue preclusion11 to preclude Boland from introducing evidence to deny that he intended to injure the children or that he was substantially certain that the children would be injured from his conduct. The Appellants’ position is that the district court and Sixth Circuit decisions in the underlying civil damages litigation established that he was substantially certain that the children would be injured from his conduct.
The majority finds that the bankruptcy court did not err in not applying issue preclusion to prevent Boland from proceeding to trial as to his intent to injure because the district court and Sixth Circuit decisions did not determine whether Boland intended the injury to the children. Intent to injure was not an element of the criminal and civil statutes at issue in the civil litigation. Rather, the majority finds that the issue of Boland‘s intent to harm was a question of fact appropriate for determination through the bankruptcy court trial.12 Issue preclusion applies in nondischargeability proceedings when facts or legal issues determined in prior litigation are relevant to the elements of a creditor‘s
Federal issue preclusion requires “that the precise issue in the later proceedings have been raised in the prior proceeding, that the issue was actually litigated, and that the determination was necessary to the outcome.” Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.
The triggering event for the district court litigation was Boland entering into the Diversion Agreement through which he stipulated that he violated
knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or 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[.]
The elements required to prove an individual knowingly possessed child pornography in violation of
- the defendant knowingly possessed visual depictions of child pornography;
- the visual depictions were transported in or affecting interstate or foreign commerce, or were produced using materials that had been transported in or affecting such commerce; and (3) the defendant knew of the sexually explicit nature of the material and that the visual depictions were of actual minors engaged in that sexually explicit conduct.
Busching v. United States, TDC-15-0107, 2018 WL 3546720, at *5 (D. Md. July 24, 2018) (quoting United States v. Koegel, 777 F. Supp. 2d 1014, 1022 (E.D. Va. 2011) (internal quotation marks omitted)).
Knowing possession of child pornography is a general intent crime. Busching, 2018 WL 3546720, at *4. “‘[A] general intent crime does not require that the defendant intend the precise purpose or results of the crime but only that the defendant intentionally engage in the actus reus [the physical act] of the crime[.]‘” Id. at *3 (quoting United States v. White, 670 F.3d 498, 508 (4th Cir. 2012)). Accordingly, the issue of Boland‘s intent to injure the Appellants was not a required element of the underlying crime.
Any person who, while a minor, was a victim of a violation of section … 2252A . . . of this title 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 or liquidated damages in the amount of $150,000, and the cost of the suit, including a reasonable attorney‘s fee. Any persons described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.
Any person aggrieved by reason of the conduct prohibited under subsection (a) or (b) or section 1466A may commence a civil action for compensatory and punitive damages, injunctive relief, and reasonable attorney fees and costs.
The pertinent issues in the civil litigation were (1) whether the Appellants suffered “personal injury” under
Like a defamatory statement, pornography injures a child‘s reputation and emotional well-being, and violates the individual interest in avoiding disclosure of personal matters. Morphed images are of a piece, offering a difference in degree of injury but not in kind. Boland created lasting images of Doe and Roe, two identifiable children, purporting to engage in sexually explicit activity. If the point of Boland‘s exercise was to demonstrate that the naked eye cannot distinguish morphed images of child pornography from real child pornography, as he claims it was, that goes a long way toward confirming that morphed images may create many of the same reputational, emotional and privacy injuries as actual pornography. And like defamation, those harms are “personal injuries.”
***
In this instance, the plaintiffs became victims of Boland‘s conduct at the same time that they suffered injuries, namely the moment Boland created the morphed images with their likenesses.
Doe v. Boland, 698 F.3d 877, 880-81 (6th Cir. 2012) (internal quotation marks and citations omitted). The focus of the civil litigation was on whether the Appellants were injured by Boland‘s conduct and therefore entitled to damages—not on whether Boland intended to injure the Appellants. Indeed, in dicta, the Sixth Circuit noted:
This $300,000 award undoubtedly amounts to tough medicine for Boland. When he created morphed images, he intended to help criminal defendants, not harm innocent children. Yet his actions did harm children, and Congress has shown that it “means business” in addressing this problem by creating sizeable damages awards for victims of this conduct.
Id. at 885 (citations omitted). Accordingly, the issue of whether Boland intended to injure the Appellants was not actually litigated or necessary to the outcome of the prior federal litigation. As such, the bankruptcy court did not err in denying Appellants’ motion in limine as to the intent element.
C. By Misconstruing the Nature of Appellants’ Legal Injury, the Bankruptcy Court Erred in Finding the Debts Owed Appellants Were Dischargeable
The bankruptcy court based its conclusion regarding Boland‘s lack of intent to harm the Appellants on Boland‘s purpose or motive for creating and possessing the images, which was not to harm children, but to assist courts, lawyers, and criminal defendants with his expert testimony and demonstrative exhibits. See Doe v. Boland, Adv. No. 16-1058, 2017 WL 2312854 (Bankr. N.D. Ohio May 26, 2017). The bankruptcy court, however, misapprehended the nature of the injuries suffered by the Appellants and the violations committed by Boland.
An injury is “the invasion of any legally protected interest of another.” Doe v. Boland, 698 F.3d at 881; see also Steier v. Best (In re Best), 109 F. App‘x. 1 (6th Cir. 2004). In order for the injury to result in a nondischargeable debt under
The Sixth Circuit characterized the Appellants’ injuries as a violation of the children‘s legally protected interests in their reputation, emotional well-being and right to privacy. Doe v. Boland, 698 F.3d at 880-84. When one focuses on this true injury to the Appellants, the Panel is left with the definite and firm conviction that the bankruptcy court erred in finding that Boland‘s debt owed to the Appellants is dischargeable.
A debtor‘s intent to injure for purposes of
To conclude that these actions, which took place over an 11-month time period, were undertaken with anything other than the intent to cause Allison injury or with the belief that injury to her was substantially certain to occur, would strain logic beyond all reasonable bounds.
Id. Similarly, in a case involving adult pornography, a court found that the invasion of the creditor‘s right to privacy by posting nude photos of the creditor on a “revenge porn” website without her consent was substantially certain to cause harm, leaving no doubt that the debtor intended to harm the creditor. Hoewischer v. White (In re White), 551 B.R. 814, 822 (Bankr. S.D. Ohio 2016) (finding the debtor was substantially certain that the act of posting nude photos of the creditor on a “revenge porn” website without her consent would cause harm for purposes of
Boland was well-versed in the law and particularly computers and digital imaging, holding himself out at the pertinent time as an expert in that area. Tr. 50:11-12. From 1996 until 2000 he worked as an assistant prosecutor with the Cuyahoga County Prosecutor‘s Office. He then taught classes as an adjunct professor of law in the computer and technology area at Case Western Reserve University School of Law (Computers and Crime, Fall 2000 & 2001; eEvidence, Spring 2001), Cleveland State University John Marshall School of Law (Computers and the Law, Spring 2001 – [“Present”]; Computers and the Law, Electronic Evidence), Cuyahoga Community College (Computers and Criminal Justice, Spring 2004; Criminal Law, Spring 2004). Tr. 49:13-50:4; Trial Ex. 5. Boland was also the author of two books: Boland‘s Computer Crime Manual, which he described as “[a] practice manual for prosecutors, defense attorneys, judges and law enforcement officials handling cutting edge cybercrime issues,” and Boland‘s Electronic Evidence Manual, which he described as “[a] practice manual for prosecutors, defense attorneys, judges and law enforcement officials handling electronic evidence and digital images.” Trial Ex. 5. He also wrote a number of articles for various legal publications pertaining to computers, technology, and the law. Id.
As a lawyer and expert witness in the field of criminal defense in child pornography cases, Boland was aware that the use of identifiable real children14 in pornographic images was
Boland‘s actions further support that he was substantially certain that harm would follow from creating and displaying the morphed pornographic images containing the Appellants’ likenesses. Following the Shreck trial in Oklahoma, Boland admitted that he was aware that some people may have viewed his actions as having constituted a crime. Tr. 71:11-14. He even took steps to avoid potential arrest upon his return to Cleveland by sending his computer by FedEx to his mother‘s address. Tr. 62:6-63:5, 69:6-70:8, 87:18-21. These actions indicate a subjective knowledge of intentional wrongful conduct, the inherent consequences of which were well known to Boland as a lawyer and expert in this area of the law.
Boland‘s motivation for creating and displaying the pornographic images of the children does not absolve him from liability. While his purpose in doing so may have been to aid criminal defendants and courts with his expert testimony and presentations, the resulting consequences, of which he was well aware, were to harm the privacy and reputational interests of the children. See Monsanto Co. v. Trantham (In re Trantham), 304 B.R. 298, 307 (B.A.P. 6th Cir. 2004) (noting that the motive of a bank robber is to enrich himself, not to injure the bank; but, nonetheless, the bank robber has committed an intentional tort and it is substantially certain that injury will result); Kraus Anderson Capital, Inc. v. Bradley (In re Bradley), 507 B.R. 192, 204 n. 5 (B.A.P. 6th Cir. 2014) (concluding that a debtor‘s motivation to save his business did not mean that he did not intend to deprive the creditor of its collateral).
In summary, by focusing on Boland‘s motive or purpose for creating and using the images, the bankruptcy court misconstrued the nature of the Appellants’ legal injury. The bankruptcy court should have determined whether Boland intended to invade the Appellants’ legally protected interests—that being their reputation, emotional well-being and right to privacy—or whether Boland was substantially certain that those interests would be invaded as a
D. Boland‘s Actions Meet the Standard for Maliciousness Under § 523(a)(6)
In addition to the requirement of proving that the injury was willful,
In the prior litigation, Boland argued that his conduct in creating, possessing and using the morphed pornographic images of the Appellants was legally excused because he was defending criminal defendants and assisting courts in child pornography cases. Thus, he argued that: a) he was only using the images to defend criminal defendants; b) the morphed images were only displayed during court proceedings before limited court participants; c) he was subject to immunity because of the use of the images in court proceedings; and d) his conduct was constitutionally protected. In short, Boland, as a leading expert in this niche area of the law, believed that his situation was different from other individuals who create or possess child pornography because he was acting as an expert or a lawyer using these images for what he considered legitimate legal purposes.
The federal rejections of Boland‘s justification, excuse, and immunity arguments are contained in the district court and Sixth Circuit decisions in the Doe v. Boland litigation. Boland argued that his use of the morphed images of the children was constitutionally protected under the First and Sixth Amendments to the United States Constitution. As to his First Amendment argument, the Sixth Circuit stated:
Even if Doe and Roe never see the images, the specter of pornographic images will cause them “continuing harm by haunting [them] in years to come.” As a result, it is immaterial that Boland never displayed these images outside of a courtroom and never transmitted them electronically. The creation and initial publication of the images itself harmed Jane Doe and Jane Roe, and that is enough to remove Boland‘s actions from the protections of the First Amendment.
Doe v. Boland, 698 F.3d 877, 884 (6th Cir. 2012) (citation omitted). As to his Sixth Amendment argument that a criminal defendant has the right to put on an effective defense, the Court stated:
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 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. If the Constitution is not a “suicide pact,” it is not an instrument of crime either.
Doe v. Boland, 630 F.3d 491, 496 (6th Cir. 2011) (citations omitted).
Boland also argued that his conduct was protected by state statutes providing immunity from prosecution for child pornography if the images are used for “bona fide judicial purposes.”
Brady‘s argument that he would like his expert to create exhibits for use at trial is also not well taken. It is axiomatic that an expert‘s conduct must conform to the law. If in preparing for trial, Boland were to create images of real children engaging in sexually explicit conduct, or modify images of identifiable children to appear that they are engaging in sexual conduct, his conduct would violate federal law.
Ohio v. Brady, 894 N.E.2d 671, 679 (Ohio 2008). Following the Ohio Supreme Court‘s decision in Brady, the Sixth Circuit stated:
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.” 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.
Boland, 630 F.3d at 497 (citation omitted). The Sixth Circuit went on to hold that his conduct also was not protected by any common law immunities. Id. at 498-99. The district court also rejected his claim of immunities. Doe v. Boland, Case No. 1:07-cv-2787, 2007 U.S. Dist. LEXIS 85254, at *5 (N.D. Ohio 2007).
Accordingly, Boland‘s various arguments seeking to legally justify or be excused from his intentional conduct in morphing the children‘s photographs into pornographic images, possessing those images, and then publishing those images to court participants, were rejected by the United States District Court for the Northern District of Ohio, the United States Sixth Circuit Court of Appeals, and the Ohio Supreme Court. The injury he caused, therefore, qualifies as “malicious” within the meaning of
V. CONCLUSION
For the foregoing reasons, the order of the bankruptcy court contained within its Amended Memorandum of Opinion and Order is reversed and vacated. The bankruptcy court shall enter judgment for Jane Doe and Jane Roe consistent with this decision.
SCOTT W. DALES, Bankruptcy Appellate Panel Judge, concurring in the judgment.
I concur in the result the Panel announces, but write separately regarding my view of the willful injury Mr. Boland inflicted on the Appellants.
As the Sixth Circuit explained in affirming the imposition of the $300,000 statutory award under
Mr. Boland‘s own testimony establishes that he intended to falsely portray the Appellants as engaging in sexual activity and to publish the images, albeit to a limited audience. His manipulation and publication of the Appellants’ photographs — the invasion of their privacy and reputational interests —was not inadvertent, but entirely intentional, as the pre-bankruptcy litigation established. Under the unusual circumstances of this case, this very act was the injury, as the Sixth Circuit held. Doe v. Boland, 698 F.3d 877, 881 (6th Cir. 2012) (“[T]he plaintiffs became victims of Boland‘s conduct at the same time that they suffered injuries, namely the moment Boland created the morphed images with their likenesses.”).
That Mr. Boland was indifferent to the harm or other embarrassment that might befall the Appellants, or that he assumed they would never find out about the offending images, does not undercut his admission that he deliberately sacrificed their privacy interests for the sake of his criminal clientele. Though only for a moment (until he revealed his artifice in court), he intended his criminal court audiences to believe that the Appellants, as minors, had engaged in the sex acts depicted in the images he quite intentionally created and published. Though acquittal of his clients was his purpose in creating the pornography using the images of innocent children, he clearly intended to create the photographs. Neither the trial court nor the Panel need
For this reason, and others set forth in the majority‘s opinion, I concur in declaring that Mr. Boland‘s debt to the Appellants must be excepted from discharge under
Notes
(a) Any person who—
. . .
(5) either—
(A) . . .
(B) knowingly possesses, or knowingly accesses with intent to view, any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography that has been mailed, or shipped or transported using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce by any means, including by computer, or 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).
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
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.” But that statement cannot change what happened. Boland had already violated
Boland, 630 F.3d at 497 (citations omitted).