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Police Blotter: Can a cell phone camera intimidate a witness?

Court rules that trial defendant committed crime when pretending to photograph an undercover officer with his cell phone.

Police Blotter is a weekly report on the intersection of technology and the law.

What: Massachusetts defendant acts like he's taking a photograph of an undercover officer with a cell phone camera.

When: Massachusetts appeals court rules on November 15.

Outcome: Defendant is found guilty of additional criminal offense of witness intimidation.

What happened, according to court documents and other sources: On December 1, 2004, David Casiano was on trial, facing criminal charges relating to drug possession, when he noticed that an undercover police officer was present to testify against him. With camera-equipped cell phone in hand, Casiano exited the court room and acted as if he was taking photographs of the undercover officer and other police officers who were in the hallway outside.

Those officers complained to the judge, who ordered that the phone be confiscated. Casiano was reported saying, after his phone was seized: "What do you think I am...stupid? I already e-mailed the pictures to my house before you took the phone."

A court officer who was asked to inspect the cell phone could not find any photographs of either the undercover officer or any of the other police officers, and couldn't even determine whether the phone was capable of sending e-mail messages.

That led Casiano, 37, to be additionally charged with witness intimidation. (A local news report says he pleaded guilty to and went to jail for trespassing charges related to his original drug charges. Court records say the jury returned a not-guilty verdict on the original drug charge.)

During his subsequent trial on the witness intimidation charge, Casiano essentially invoked the I-was-just-kidding defense. He produced an affidavit from T-Mobile saying his cell phone wasn't even operational on the day of the incident. But the judge rejected it, saying the affidavit was not relevant, apparently on grounds that the threat of a photograph was what mattered. Casiano was found guilty, and he also lost on appeal.

This raises the obvious question: Under what circumstances should defendants--or members of the news media, for that matter--be able to publish photographs of undercover police officers or police informants? And when can merely taking a photograph constitute "intimidation?"

Police have already been alarmed at Web sites like Who's A Rat, which collect reports of alleged police informants and make them available publicly. Boston-area disc jockey Sean Bucci launched Who's A Rat when he was facing his own marijuana charges, and that it outed at least one paid informant for the FBI in Boston.

But because the First Amendment's guarantee of freedom of expression likely protects such Web sites, Who's A Rat remains online.

Excerpts from the court's opinion: It is not disputed that the complainant was a witness against the defendant in a criminal trial and that the defendant made a physical gesture consistent with taking a photograph of the witness.

The defendant maintains, however, that there is no evidence that he used, in his words, "intimidation, force, or threats of force," arguing that he did not show any hostility toward the witness prior to the action taken; that the witness's purported concern did not prompt him to take any additional precautions as an undercover officer; and that a reasonable police officer in the complainant's position would not have been intimidated.

An action does not need to be overtly threatening to fall within the meaning of "intimidation." Although the defendant did not expressly threaten the officer's person, his action threatened the undercover officer's continuing safety. That the defendant did not exhibit hostility toward the officer prior to his actions is inconsequential, as a single act by a defendant is sufficient to satisfy the intimidation statute.

Further, it is irrelevant whether a victim takes precautions in response to the defendant's behavior, as "the statute punishes anyone who 'willfully endeavors' to intimidate a witness; it does not require that the intimidation be successful."

The defendant also maintains that even if his actions did rise to the level of intimidation, the prosecutor did not prove that they were intended to influence the complainant's testimony. Assuming arguendo that in this case, an obvious connection between the defendant's actions and his intent is lacking, one can make an inference based upon "the place, time, and circumstances (of the incident)."

Although the defendant did not make any statement indicating that his action was taken to influence the officer's testimony, he did make a threatening statement to the complainant suggesting that he had already sent the photographs to his home computer. The logical import of the statement is that the photographs were irretrievable and could be exploited at a later time. Considering the "time" and "place" of both his action and statement, the jury could readily infer that the defendant intended to influence the complainant's impending testimony.

The defendant next claims that there is no evidence that any photographs were ever taken, affecting the "circumstances" aspect of the inference. It is irrelevant whether any photographs were taken, as the police officer was made to believe that the defendant was taking pictures of him and could disseminate his likeness, an act intended to intimidate.

In sum, the jury had adequate evidence from which to infer that the defendant intended to influence the officer's testimony.

Excerpts from Massachusetts law: (1) Whoever, directly or indirectly, willfully
(a) threatens, or attempts or causes physical injury, emotional injury, economic injury, or property damage to;
(b) conveys a gift, offer, or promise of anything of value to; or
(c) misleads, intimidates or harasses another person who is:
a witness or potential witness at any stage of a criminal investigation, grand jury proceeding, trial, or other criminal proceeding of any type...shall be punished by imprisonment for not more than 2 1/2 years in a jail or house of correction or not more than 10 years in a state prison, or by a fine of not less than $1,000 nor more than $5,000.