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U.S. Constitution Title: Judge Torruella calls on courts to “reevaluate” Commerce Clause decisions Judge Torruella calls on courts to “reevaluate” Commerce Clause decisions The constitutional power to regulate “commerce . . . among the several states” continues to serve as a broad catch-all basis for federal authority over intrastate activity. Federal statutes routinely assert federal jurisdiction over run-of-the-mill crimes based upon any connection to interstate commerce, no matter how tenuous. Courts, for their part, have been extremely permissive, allowing federal prosecution on the barest showing of a connection to commerce. Not all judges are happy with these developments, nor do all judges believe the courts’ permissive approach is consistent with recent Supreme Court decisions, including NFIB v. Sebelius. One such judge is Judge Juan Toruella of the U.S. Court of Appeals for the First Circuit. In United States v. Joubert, involving a federal sex crime prosecution, Judge Toruella wrote a separate concurring opinion expressing reservations about the scope of the federal commerce power as it is currently understood and applied in federal court. Here is what Judge Toruella wrote: I join the court’s opinion in full but write separately to note my disagreement with the state of our Commerce Clause jurisprudence. It seems counterintuitive that interstate commerce is affected when Joubert purchases a VHS videotape in New Hampshire, records on the VHS videotape in New Hampshire, and neither sells nor attempts to sell the VHS videotape outside of New Hampshire. Indeed, the only argument in support of a connection to interstate commerce is that, in aggregate, this type of behavior has an effect on interstate commerce. This borders on the farcical, as the evidence suggests that the content of the videotape was made exclusively for Joubert’s own personal use. Any commonsense understanding of “interstate commerce” excludes the conduct at issue here. Yet, as the court correctly notes, and Joubert himself concedes, this court and most (if not all) of the other circuits have found this connection perfectly acceptable, and thus constitutional. . . . This “link” to interstate commerce, which is tenuous at best, also effectively gives the federal government unlimited jurisdiction, since there is very little in today’s society that, when aggregated, would have no impact on interstate commerce. We have put aside common sense in order to federalize conduct which we believe needs to be punished. Let there be no doubt: I am in full agreement that the behavior Joubert was convicted of must be punished, and punished harshly. This punishment, however, should be meted out by the state under its plenary police power, and not by the federal government with its limited jurisdictional reach. [FN: This is not a situation where if the federal government did not have jurisdiction, the crime would go unpunished. The investigation began with police in York, Maine, and it continued as a joint state/federal task force. I have little doubt that had the FBI not been involved and had not brought these federal charges, state prosecutors would have brought charges.] . . . Recent Supreme Court cases suggest a push in this direction. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591 (2012) (“Although the [Commerce] Clause gives Congress authority to legislate . . . , it does not license the exercise of any great substantive and independent power[s] beyond those specifically enumerated. Instead, the Clause is merely a declaration . . . that the means of carrying into execution those [powers] otherwise granted are included in the grant.” (second and third alterations in the original) (internal citations and quotation marks omitted)); . . . Given this trend of narrowing the reach of the Commerce Clause, I believe this court should reevaluate its precedents and lead the return to a more faithful reading of the term “interstate commerce.” Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: tpaine, nolu chan, Vicomte13 (#0) In United States v. Joubert, involving a federal sex crime prosecution, Judge Toruella wrote a separate concurring opinion expressing reservations about the scope of the federal commerce power as it is currently understood and applied in federal court. The Founders never conceived of any kind of federal criminal justice system that could punish pervs. The realm of criminal justice was dominated by the States, almost exclusively. In addition, commerce is not smuggling or trade in banned goods. Commerce is properly conceived as legal trade operations, not the operations of criminal elements and perverts. For this reason, the tobacco and alcohol industries are commerce because they are established in law and regulation but the new marijuana industry is not commerce as it remains illegal under federal law and all but a few states.
#2. To: TooConservative (#1) --- commerce is not smuggling or trade in banned goods. Commerce is properly conceived as legal trade operations, not the operations of criminal elements and perverts. For this reason, the tobacco and alcohol industries are commerce because they are established in law and regulation but the new marijuana industry is not commerce as it remains illegal under federal law and all but a few states. The federal 'law' making certain drugs 'illegal' uses the wording of the commerce cause at issue. Thus, claiming this type of commence "remains illegal" is a circular, invalid argument..
As you say, -- "The Founders never conceived of any kind of federal criminal justice system that could punish pervs. The realm of criminal justice was dominated by the States, almost exclusively."
#3. To: (#0) Legalism piles upon legalism. Reality operates differently.
#4. To: TooConservative (#1) According to court documents, he did transport the VHS tape across state lines. Meaning the federal authorities had the authority to get involved. But this was really a state crime. Now, if the state refused to pursue the case, that's a different matter.
#5. To: TooConservative, tpaine, Vicomte13 (#1) The Founders never conceived of any kind of federal criminal justice system that could punish pervs. The realm of criminal justice was dominated by the States, almost exclusively. Correct. Originally, Federal criminal jurisdiction extended over treason. Crimes occurring in States were under State jurisdiction. That said, the expanded government is not going away.
#6. To: nolu chan, misterwhite, y'all (#5) Originally, Federal criminal jurisdiction extended over treason. Crimes occurring in States were under State jurisdiction. As you see, misterwhite differs.. Perhaps you can get him to explain his reasoning. He's too chickenshit to debate me anymore..
#7. To: tpaine, misterwhite (#6) [misterwhite] According to court documents, he did transport the VHS tape across state lines. Meaning the federal authorities had the authority to get involved.-- misterwhite In order to reply, the actual statute is necessary, along with making the Opinion of the Court available. media.ca1.uscourts.gov/pdf.opinions/14-1259P-01A.pdf The complete Opinion of the Court and the Concurring Opinion of Judge Torruella are at the link. The law in question is here.
SEXUAL EXPLOITATION AND OTHER ABUSE OF CHILDREN - 18 U.S.C. § 2252 (2012) I saw no indication of how he transported or shipped by means or facility of interstate commerce. The video was made in one state and discovered much later in another state. How it made the trip is up to conjecture. Where is the proof beyond a reasonable doubt that it was by means or facility of interstate commerce? Carrying a VHS tape across state lines, in itself, is not a crime and does not invoke federal jurisdiction. This case appears to contain a good deal of bootstrapping. The law itself is unconstitutional if interstate or foreign commerce is not a required element of the crime. You may want to review it. I find the defense of the search warrant probable cause to be strained (at 7-12), and it looked more like reasonable suspicion. The admission of uncharged child molestation evidence appears questionable (at 12-16). At 11, a farcical claim regarding what was described as the described evidence justifying the search warrant:
The affidavit's only photographing allegations are of photographing at athletic events, at the beach, or similar settings. This argument misses the mark completely. To start with, this argument is not a challenge to the nexus with the location, but rather a challenge to the specification of an object of the search. If photographs at the beach are "relevant [] evidence for building a case that the alleged abuse actually occurred," would a Mt. Everest of such pictures provide sufficient evidence? Would showing beyond a doubt that Joubert knew his accusers prove the charges? This is like a wish sandwich. If the "affidavit contained no allegations of child pornography," what crime were they investigating, and what evidence of that crime were they searching for? I am afraid I can't really help you get a response from misterwhite. A few months ago, misterwhite took exception to my dissent to his claims here. All the people, including misterwhite enjoy the right of freedom of association, or non-association.
#8. To: nolu chan (#7) "The video was made in one state and discovered much later in another state. How it made the trip is up to conjecture." True. And it's up to a jury to determine if he was one one who transported it across state lines. But the feds had probable cause to charge him. You seems to think that a jury must find him guilty of interstate transportation first before the feds can even charge him. Ummm. That's not how it works. "I find the defense of the search warrant probable cause to be strained (at 7-12), and it looked more like reasonable suspicion. If the jury agrees with you, any evidence obtained by that warrant will be thrown out. "A few months ago, misterwhite took exception to my dissent to his claims here." And this is how you respond -- by whining about it in another thread? Next time, address my statement point by point and try to refute it ... if you can. Don't cry about it 3 months later.
#9. To: misterwhite (#8)
True. And it's up to a jury to determine if he was one one who transported it across state lines. But the feds had probable cause to charge him. That is incorrect. The Court must find an alleged act of interstate or foreign commerce to find that the Court has jurisdiction to hear the case. No alleged act of interstate commerce equals no subject matter jurisdiction. It is a legal question that is not considered by the jury at all. The text of the statute makes clear that an act of interstate or foreign commerce is an integral part of the offense. It is a crucial element to establish Federal jurisdiction. The Court must find sufficient facts alleged which, if true, would prove each element of the offense. All matters of law are decided by the Court. Jurisdiction must be pleaded in every case, and it is decided before a jury is ever selected.
#10. To: nolu chan (#9) "The text of the statute makes clear that an act of interstate or foreign commerce is an integral part of the offense. It is a crucial element to establish Federal jurisdiction. The Court must find sufficient facts alleged which, if true, would prove each element of the offense." Well, according to you, "The video was made in one state and discovered much later in another state." Isn't that sufficient probable cause to get the feds involved?
#11. To: misterwhite (#10)
Well, according to you, "The video was made in one state and discovered much later in another state." Usually that probable cause thingee is needed before the search and seizure to obtain the warrant. Do you claim that they can they can perform a general search for whatever, find a video as evidence, and use said evidence not described in the affidavit, of a crime not described in the affidavit, to provide the probable cause for the completed search?
#12. To: nolu chan (#11) "Do you claim that they can they can perform a general search for whatever, find a video as evidence, and use said evidence not described in the affidavit, of a crime not described in the affidavit, to provide the probable cause for the completed search?" If the police have a valid search warrant for, say, drugs and find a dead body, yeah, that dead body can be used as evidence against you in a murder trial. Are you saying that because the warrant was for drugs the police have to ignore the dead body?
#13. To: nolu chan (#11) "Usually that probable cause thingee is needed before ..." Usually? So even you admit sometimes it's not needed before. Well, this is one of those times I guess.
#14. To: misterwhite (#13) Usually? So even you admit sometimes it's not needed before. I can play that game. Are you admitting they were granted a warrant without demonstrating probable cause? It was just one of those times?
#15. To: misterwhite (#12)
If the police have a valid search warrant for, say, drugs and find a dead body, yeah, that dead body can be used as evidence against you in a murder trial. Nah, more like a warrant to search for a dead body, with no homicide mentioned in the affidavit, and finding drugs in a plastic container inside a metal box, inside a dresser drawer without finding a dead body. Or finding the dead body in question and continuing to search by opening dresser drawers. Or looking for a dead body by opening dresser drawers. The warrant must specify a crime, and specify what suspected evidence of the crime is to be searched for. If the evidence of the crime is found, the search ends. No evidence found as a result of a continued search would be admissible. You could not search his computer looking for a corpse. Bringing a cadaver dog would be fine, bringing a drug dog would be outside the warrant. Let us say the warrant was for drugs. The warrant would not cover a search of the data on his hard drive. The search is for what is specified on the warrant. It only extends to searching places where the specified evidence may reasonably be found. If a corpse cannot reasonably fit in a pill box, you cannot open pill boxes purporting to search for a corpse. If the warrant is found to have lacked probable cause, the drugs, the body, and all else found as a result of that search, or any subsequent search resulting from that search, is considered fruit of the poisonous tree and cannot be used against you. The reviewing court may only look within the four corners of the affidavit filed with the request for the warrant to find the alleged probable cause.
#16. To: nolu chan (#15) Government doesn't need no stinckin' warrant anymore. All they need is a SWAT breaking down doors, collecting evidence and then claiming, it was all a mistake. There is no probable clause, either.
#17. To: nolu chan (#15) Nah, more like a warrant to search for a dead body, with no homicide mentioned in the affidavit, and finding drugs in a plastic container inside a metal box, inside a dresser drawer without finding a dead body. Oh, please. A first-year law student could get that evidence suppressed. "The search is for what is specified on the warrant." "In late June 2012, police applied for a warrant to search Joubert's parents' home. The warrant application sought permission to search for several categories of evidence including: "[a]ny and all computers or related storage devices and media"; "[a]ny and all cameras . . . including cassette tapes, VCR/VHS tapes"; and "[a]ny and all photographs, electronic images, and videos of minors/ juveniles/ youth/ youth groups that Robert Joubert has or may have had contact with." Now, what are you babbling about?
#18. To: nolu chan (#14) "Are you admitting they were granted a warrant without demonstrating probable cause?" Not I. You were the one who said "usually". See my post #17. Now explain to me why you think the police were looking for something else and "found" the VHS tape.
#19. To: misterwhite, Pridie.Nones (#17) (Edited) [Deleted to make ccn.]
#20. To: misterwhite, Pridie.Nones (#18)
[nolu chan #15] "The search is for what is specified on the warrant." ... The reviewing court may only look within the four corners of the affidavit filed with the request for the warrant to find the alleged probable cause. I was babbling about the affidavit and what was, and was not, in it. I was talking about the requirement that the issuing magistrate must find the alleged probable cause within the four corners of the affidavit, to the exclusion of all other sources. Prior law: From 1999, before Chief Judge Torruella. The same Chief Judge Torruella. http://law.justia.com/cases/federal/appellate-courts/F3/176/565/596769/ United States, Appellee, v. Robert A. Vigeant, Defendant, Appellant, 176 F.3d 565 (1st Cir. 1999) Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge. STAHL, Circuit Judge.
24 Probable Cause There is nothing in the affidavit in Joubert about pictures or photographs or video of any sexual nature. The witness statements about pictures/photographs/video from every relevant paragraph follows:
11. On 03/27/2012 SA. MacDonald interviewed David Hoyt, owner/operator of USA Training Center, Newington, NH (formerly Home Run USA). [...] Hoyt related that some parents had complained that Joubert had photographed players at a swimming pool, while the team was on a road trip to Florida. [snip] The affidavit contains no mention of pictures or photographs of a sexual nature. There is only hearsay video evidence of a non-sexual nature. The only evident question asked about child pornography is shown in the statement of SJ (Joubert's non-biological son) provided below. At ¶11, the witness related hearsay that he was told about Joubert taking photographed players at a swimming pool in Florida. At ¶15, the FBI and a detective interview Joubert and give unsupported characterizations and conclusions. No quotes or actual record of the conversation is made available. At ¶17, Mrs. Coppinger relates hearsay from her husband about video at a swimming pool in Florida. There is no evidence that the alleged witness, Mr. Coppinger was interviewed. Mrs. Coppinger relates that the incident was "related" to David Hoyt, see ¶15. No information on who or how it was "related" to Hoyt, but Hoyt said he received a report of photographing, not video. At paragraph ¶40, "MT disclosed" on date unknown to persons unknown, what he allegedly disclosed. Joubert allegedly took pictures of MT playing sports, fishing, and at the beach and other locations. At ¶43, (as recently as 2009) Joubert was observed photographing juvenile players at a NH ball field. That fall, Joubert was observed coaching a southern Maine baseball team. At ¶46, Joubert photographed juvenile members of his (Hoppers') Exeter (NH) based baseball team at the Roger Allen baseball tournament. Hopper observed Joubert using a "flipup" phone photographing players from a distance. There is precisely nothing to establish probable cause that sexual photographic evidence existed, or that any video evidence of a sexual nature existed, beyond paragraphs 54 and 55. There is only one hearsay claim of any video, contradicted by another hearsay claim. The existence of video evidence was pure conjecture.
54. Based on my training and experience, and supported by the actions of the suspect in this investigation, I know that persons engaged in the molestation and exploitation of the minors often maintain possession and/or control of physical or electronic documents pertaining to their victims and other juveniles. Persons, some persons, not necessarily this person. Often, not always, some do, some don't. He does not say how he knows this, he just does. Hell, it was unknown if Joubert was maintaining any documents showing any unlawful activity. Nor is there any evidence of where other than the detective's unsupported conjecture. We are taking a guess. It was a good guess, but normally probable cause is required. This looks like the scumbag exception. The affiant's unsupported suppositions are to be afforded no weight. There is nothing there to support what the affiant claims to know. No actions of the suspect provide probable cause to believe there are any videos or child pornography in the instant residence.
55. Based on my training and experience and the information explained in this affidavit I believe that evidence of the crime(s) of Felonious Sexual Assault exists. I believe the aforementioned evidence exists in the possession, control, care and/or custody of Robert Joubert. I believe that the evidence exists in the form of, but not limited to; physical and electronic documents and other property. The evidence may confirm or dispel Robert Joubert's background (employment, resume claims, sport/coaching qualification and credentials), the allegations made against him involving juveniles, his travels, his relationship(s) with minors/juveniles and the victims mentioned in this affidavit, confirm his relationship with already identified victims, and identify other potential (yet unknown) victims. There is nothing to support the affiant's claim other than his asserted training and experience. He just knows. He does not identify what incident of Felonious Sexual Assault is supposedly to be shown by the evidence hoped to be found. Gimme a warrant because this guy is a scumbag and I really, really believe I can find some evidence if you just let me search his stuff. Also worth looking at is paragraph 28-30. The police already had prior access to the computer and hard drive. Nothing is said if they looked at the hard drive at that time.
28. 0n 06/05/2012 SJ delivered a computer. tower (with hard drive) to the Concord Police Department, which he claimed belonged to Robert Joubert. The tower contained a hard drive. The computer tower is described as a Compaq computer tower serial number U149BBGZA404, containing a hard drive. SJ said that he suspected that the hard drive contained incriminating information. SJ went on to explain that he recently (within approximately a week) assisted Robert Joubert in moving from an apartment in Lee, NH to 144 Fairmont Ave Manchester, NH. The residence at 144 Fairmont Ave is the owned and occupied by Robert Joubert's parents, Real and Simone Joubert. SJ said that his father was.anxious because he was being investigated by the FBI. Wow. "SJ strongly suspected, based on Robert's actions, demeanor, and past history with NT and himself, that there was child pornography or some other incriminating information in the computer." And no comment on whether they looked or found anything. I can't help noting that, when protecting data, I always leave the hard drive and remove the CD and floppy drives and smash them so nobody can retrieve data off them. What had SJ actually said before the detective translated it to his own wishes. Doc 12 at 8:
(A) by SJ: Doc 12 at 8-9:
Page 47 of the transcript includes the following questions by one or more of the officers and the following answers by SJ (emphasis added) He saw no child porn. That was pure assumption. He saw nothing underage. He saw all adult stuff, Playboy type stuff. Or as the affiant translated it, "SJ strongly suspected, based on Robert's actions, demeanor, and past history with NT and himself, that there was child pornography or some other incriminating information in the computer." Among many convictions, witness SJ was convicted of forgery. The detective did not give that information to the magistrate. Robert Joubert's prior arrests were included at ¶6 (1994), ¶7 (1999), ¶8 (2003), ¶9 (2004), but the fact that there were no convictions was omitted. Doc 77 at 20-22:
The court does agree with Joubert that the affidavit should have mentioned SJ’s forgery conviction. While Detective Ford’s omission of this information does not appear to be intentional, it was quite possibly reckless. As this court has previously explained, “‘recklessness may be inferred’” if the omitted information “consisted of ‘facts that any reasonable person would know that a judge would want to know when deciding whether to issue a warrant.’” United States v. Tanguay, 907 F. Supp. 2d 165, 177 (D.N.H. 2012) (quoting Burke v. Town of Walpole, 405 F.3d 66, 82 (1st Cir. 2005)). A conviction for a crime of dishonesty such as forgery “is unquestionably a fact that any reasonable officer would consider critical” to determining an informant’s credibility. Id. Indeed, Detective Ford testified at the suppression hearing that he would ordinarily inform the magistrate of an informant’s forgery conviction when applying for a warrant (although he was less sure that he would include such information in a warrant affidavit), demonstrating his awareness that a magistrate would want such information. He offered no explanation for his failure to do that in this case, apart from speculating that—despite his awareness that SJ had a criminal record—he had either not viewed that record before swearing out his affidavit, or simply “browsed” it. In such circumstances, Detective Ford’s failure to apprise the magistrate of the forgery conviction might well be characterized as reckless (although that is not necessarily a foregone conclusion, cf. id. at 182-83 (rejecting argument that officer acted recklessly by not performing criminal records check on informant and including results in her warrant affidavit)). "While Detective Ford’s omission of this information does not appear to be intentional, [cough, cough] it was quite possibly reckless." Or, the detective did not mention his witness's forgery conviction because he was confident the judge would not turn a scumbag loose because of his transgression. He would do it now, get the evidence, and tell his boss "oops" later. There are other revelations that show Joubert's presence at Fenway Park. It does not show, or provide probable cause to believe, that he lived at Fenway Park. The scumbag exception covers all. The result is good. Robert Joubert is off the street. I have a quibble with how the result was achieved.
#21. To: misterwhite (#18)
[nolu chan #12] Usually that probable cause thingee is needed before the search and seizure to obtain the warrant. Usually, a warrant is needed. Not with exigent circumstances. That does not apply in this case. They needed to demonstrate probable cause. Or they needed the justice system to invoke the scumbag exception.
[misterwhite #18] See my post #17. Now explain to me why you think the police were looking for something else and "found" the VHS tape. The police were not looking for anything in particular. It was a fishing expedition. There was no probable cause that a VHS tape was there, or had ever been there. There was nothing but speculation that any evidence searched for ever existed. No one witness gave information that they had ever seen child pornograpic images or saw such matter being made. As close as it came was the alleged seeing of an adult magazine like Playboy. The property inventory lists 45 boxes of stuff. They took clothing, birth certificates, hockey pucks, tax documents, baseballs, financial records, and the list goes on. You tell me the probable cause to search for a VHS tape of unknown existence, content or location.
#22. To: nolu chan (#21) We were discussing the nexus to interstate commerce. I said there was sufficient probable cause to get the feds involved. Now you're shifting the probable cause argument to the search warrant itself? Law enforcement officials learned that Joubert often photographed and videotaped his young charges. His 36-year-old non-biological son reported that Joubert lived at Joubert's parents' home. The search warrant of his parents' home specifically listed "VCR/VHS tapes". We went over this already. I'm done repeating myself.
#23. To: misterwhite, y'all (#22) We were discussing the nexus to interstate commerce. I said there was sufficient probable cause to get the feds involved. Whereas, constitutionality speaking, there is no reason the feds should be involved. -- The commerce clause does not give the feds the power to act as national police. We went over this already. I'm done repeating myself. Yep, you should give up trying to defend federal infringements of power.
#24. To: nolu chan (#20) "The affidavit contains no mention of pictures or photographs of a sexual nature. There is only hearsay video evidence of a non-sexual nature." Once again, you're putting the cart before the horse. You're insisting on proof of child porn before the police can search for that proof. Based on the testimony of his victims, police had probable cause to search for proof. A judge was convinced they had probable cause and signed a warrant. The warrant specifically included "VCR/VHS tapes". Give it a rest.
#25. To: nolu chan (#19) Government is pure, brutal force. You don't have to water down all the nice things about government that are supported by a court of law. What is written is necessarily broke in America.
#26. To: misterwhite (#22)
Law enforcement officials learned that Joubert often ... videotaped his young charges. Nothithstanding your vivid imagination, The affidavit contains not one statement provided by a person claiming to have witnessed Joubert take a video recording of anyone under any circumstances. The affidavit contains not one statement provided a person claiming to have witnessed Joubert in possession of a video recording of anyone or anything. If you know of such a statement, quote it.
His 36-year-old non-biological son reported that Joubert lived at Joubert's parents' home. Quote the imaginary statement with that claim. SJ made no statement that Robert Joubert lived there. Det. Ford stated that allegedly, "SJ told me that Robert Joubert is generally sleeping on the couch at 144 Fairmont Ave Manchester, NH." Notably, SJ did not live there and this cannot be of SJ's own, personal knowledge. Hearsay or conjecture at best, from a convicted forger. Additionally, generally crashing on the couch someplace does not establish that place as a residence then, or more importantly, at the time the search warrant was requested. The affidavit notes no effort to verify the conjecture or hearsay of the convicted forger SJ. The Court claimed, "at least one other fact related in the affidavit established Joubert's presence at the Fairmont Avenue property, namely, that the recorded conversation between SJ and Joubert took place there." Presence at a particular time cannot establish residence in a parent's home. If "presence" afforded probable cause to search, it would afford probable cause to search every place Robert Joubert had been present.
The search warrant of his parents' home specifically listed "VCR/VHS tapes". It also specifically listed only one specific crime, one not mentioned in the affidavit.
#27. To: misterwhite (#22)
[misterwhite #22] We were discussing the nexus to interstate commerce. I said there was sufficient probable cause to get the feds involved. Now you're shifting the probable cause argument to the search warrant itself? No, we were discussing the search warrant. The probable cause, including the nexus thingee, must be established by whatever is within the four corners of the supporting affidavit for the search warrant. As you are aware, the VHS tape was not a gift from the gods. As Chief Judge Torruella wrote and as I quoted: United States v Vigeant, 176 F3d 565, ¶27 (1st Cir 1999)
(A "warrant application must demonstrate probable cause to believe that a particular person has committed a crime--'the commission element'--and that enumerated evidence relevant to the probable criminality likely is located at the place to be searched--'the "nexus" element.' ") (emphasis in original). We hold that the "commission" element of the probable cause inquiry was not satisfied, for three reasons: (1) there is no link, temporal or otherwise, between the alleged drug dealing and the bank activity that took place more than six months later; (2) the banking and investment activity was not itself of a character sufficient to establish that the "proceeds of some form of unlawful activity," 18 U.S.C. § 1956, were involved; and (3) the conclusory statements of the affiant that might otherwise have helped create probable cause are entirely without factual support. The search was requested and carried out by state authorities pursuant to a claim of violation of a state criminal statute. The search and seizure of the evidence was not to prove any interstate involvement or alleged crime occurring outside of New Hampshire. At the time of the search, there was zero claimed evidence of interstate commerce. The Feds had no jurisdiction to execute the search and they did not request it or execute it. The investigation was conducted by Special Agent (SA) Thomas MacDonald of the Federal Bureau of Investigation (FBI - Portland ME Office), and Investigator (Inv.) Mark Putney (Manchester Police Dept. - Retired) of the Hillsborough County Attorney's Office. This was prior to the known existence of any relevant VHS tape. The affidavit contains not one statement provided a person claiming to have witnessed Joubert take a video recording of anyone under any circumstances. The affidavit contains not one statement provided a person claiming to have witnessed Joubert in possession of a video recording of anyone or anything. The affidavit contains not one statement provided a person to have witnessed Joubert in possession of child pornography. The affidavit contains not one statement provided a person claiming to have witnessed Joubert in possession of any images with sexual content except one person who said he saw an adult Playboy-type magazine. As Chief Judge Torruella noted, a "warrant application must demonstrate probable cause to believe that a particular person has committed a crime--'the commission element'--and that enumerated evidence relevant to the probable criminality likely is located at the place to be searched--'the "nexus" element.' " In the Affidavit, at paragraph 55, Det. Ford stated:
55. Based on my training and experience and the information explained in this affidavit I believe that evidence of the crime(s) of Felonious Sexual Assault exists. I asked what, within the affidavit, established probable cause to believe that a VHS tape, relevant to the alleged probable criminality, was located at the place to be searched -- the required "nexus" element for lawfully granting a search warrant. The Affidavit cited a New Hampshire state crime, RSA 632-A:3, "Felonious Criminal Assault." The relevant evidence of the Warrant, as issued, was what was authorized to be searched for. The probable cause purportedly established within the four corners of the affidavit was for evidence relevant to "Felonious Sexual Assault" RSA 632-A:3, occurring within the State of New Hampshire. The Warrant inexplicably specified Aggravated Felonious Sexual Assault RSA 632-A:2(III), and other Sexual crimes." The "other Sexual crimes" were specified neither in the Affidavit nor Warrant, but Judge Spath found probable cause to search for unspecified evidence of the unspecified crimes. The Property Report Form for the seized property lists "Offense: AFSA", Aggravated Felonious Sexual Assault, the crime listed in the warrant but not mentioned in the Affidavit.
#28. To: misterwhite (#24)
[misterwhite #24] Based on the testimony of his victims, police had probable cause to search for proof. A judge was convinced they had probable cause and signed a warrant. The warrant specifically included "VCR/VHS tapes". There was no testimony of any victim in the affidavit. Det. Ford swore that the unsworn statements of others, made about unsworn statements of interviewees, were true and correct to the best of his knowledge. He swore that he did not know that the unsworn statements about unsworn statements were false. That is accurate if Det. Ford knows nothing at all, even if the investigators knew the statements to be false. When challenged, you are notably unable to cite the testimony that provides probable cause to search for a VCR/VHS tape, or clothing, birth certificates, hockey pucks, tax documents, baseballs, financial records, etc. The criminal activity alleged by Det. Ford in the affidavit is contained in paragraph 55.
55. Based on my training and experience and the information explained in this affidavit I believe that evidence of the crime(s) of Felonious Sexual Assault exists. "Felonious Sexual Assault" and no other criminal activity is identified, and in his affidavit, Det. Ford swore that the his search would be for evidence of Felonious Sexual Assault. The actual Warrant, signed by Judge M. Kristin Spath, reads:
Probable cause for believing that there is evidence of the crime(s) of Aggravated Felonious Sexual Assault RSA 632-A:2(III) and other Sexual crimes.... The issuing Judge finds probable cause for a search pursuant to probable cause for crime(s) not specified in the Affidavit or Warrant. The affiant specified Felonious Sexual Assault which is RSA 632-A:3, and the Judge found probable cause for the crime of Aggravated Felonious Sexual Assault 632-A:2(III) and other Sexual crimes. The Affiant explicitly stated "Felonious Sexual Assault" and no other crime(s). The judge issued a Warrant to search pursuant to a crime other than the single crime specified in the Affidavit and for other crimes not specified in the Affidavit or Warrant. How did the judge find probable cause to believe a crime not mentioned in the Affidavit had been committed and that the evidence was at a specified location? The statute the Judge cited while finding probable cause to search: http://www.gencourt.state.nh.us/rsa/html/lxii/632-a/632-a-2.htm
TITLE LXII Such crime was not cited or mentioned in the affidavit of Det. Ford. The statute cited by Det Ford: http://www.gencourt.state.nh.us/rsa/html/lxii/632-a/632-a-3.htm
#29. To: tpaine, misterwhite (#23) Whereas, constitutionality speaking, there is no reason the feds should be involved. Note that the search warrant request and issuance was a State action and the warrant was issued by Judge M. Kristin Spath in the 6th Circuit Court, District Division Concord Court, New Hampshire. The requesting official was Det. Sean K. Ford of the Concord Police Department. The alleged crime in the affidavit was Felonious Sexual Assault NH RSA 632-A:3. The alleged crime for which the warrant was issued (not mentioned in the Affidavit) was Aggravated Felonious Sexual Assault NH RSA 632-A:3 "and other Sexual crimes" not specified in the Warrant or Affidavit.
#30. To: nolu chan (#29) Whereas, constitutionality speaking, there is no reason the feds should be involved. Thanks for reposting my comment as misterwhite pretends he can't see it, to avoid answering. It'll be interesting to see if he answers you..
#31. To: nolu chan (#29) "Note that the search warrant request ..." So noted. What's your point?
#32. To: nolu chan (#26) "SJ told me that Robert Joubert is generally sleeping on the couch at 144 Fairmont Ave Manchester, NH." Notably, SJ did not live there ..." "SJ went on to explain that he recently (within approximately a week) assisted Robert Joubert in moving from an apartment in Lee, NH to 144 Fairmont Ave Manchester, NH. The residence at 144 Fairmont Ave is the owned and occupied by Robert Joubert's parents, Real and Simone Joubert." He moved from an apartment to his parents' house. But you're telling me he didn't "live" there because he slept on a couch? He moved there. His computer was there. That's sufficient probable cause to search the place.
#33. To: nolu chan (#28) "There was no testimony of any victim in the affidavit. Det. Ford swore that the unsworn statements of others, made about unsworn statements of interviewees, were true and correct to the best of his knowledge." "Officer! There's a man with a gun in the house holding my wife hostage!" "OK. But how do I know that your unsworn statements about unsworn statements are true? "What?!" "Sorry. I'm not doing anything until I have actual proof that a man is in the house, that it's not his house, that he has a real, loaded gun, and that he's threatening your wife. All I have is your unsworn statement." Hurry! Get a warrant!" "Based on what? Your hysterical statement? nolu chan would rip me a new one if I used that as a basis for a warrant. I'm staying out here until I have proof."
#34. To: misterwhite (#31) So noted. What's your point? One crime was alleged in the affidavit. In the issued warrant, the magistrate allegedly found, within the four corners of the affidavit, probable cause of a crime not mentioned in the affidavit, and probable cause to search for evidence of unidentified crimes. My point would be to point out that you feign that you remain blissfully unaware of the point.
#35. To: misterwhite (#32) [mw #32] He moved there. His computer was there. That's sufficient probable cause to search the place. Neither the computer tower nor its components were at the residence. Three weeks before the warrant was sought and granted, SJ had already taken (stolen) the computer tower with hard drive and other components and delivered the fruits of his crime to the police, and these were supposedly in police custody pending a search warrant. Of course, SJ's actions were allegedly independent and at no direction of any law enforcement agency. Cough. As the computer tower with hard drive and other components were known to be located in custody at the police department, such could not be searched for at the residence. Residence at a location is not probable cause to search said location. There must have been a crime, and there must be probable cause to believe specified evidence of the crime exists and can be found at the specified location.
Amendment IV He moved his stuff there. SJ was incapable of asserting, of his own knowledge, that Joubert resided there. The police showed no attempt to verify SJ's conjecture, such as asking the owners.
Det. Ford stated that allegedly, "SJ told me that Robert Joubert is generally sleeping on the couch at 144 Fairmont Ave Manchester, NH." Unless SJ was tucking Joubert in at night, this is conjecture. SJ was not there to witness whether Joubert slept on the couch. The claim that Joubert "generally" slept on the couch infers that sometimes he slept elsewhere.
The Court claimed, "at least one other fact related in the affidavit established Joubert's presence at the Fairmont Avenue property, namely, that the recorded conversation between SJ and Joubert took place there." The existence of this statement by the Court indicates that the Court saw reason to give added support to the SJ conjecture. It is a grope to claim presence establishes residence.
#36. To: misterwhite (#33)
[misterwhite #24] Based on the testimony of his victims, police had probable cause to search for proof. A judge was convinced they had probable cause and signed a warrant. The warrant specifically included "VCR/VHS tapes". Further demonstrating your inability to cite the alleged "testimony" that provides probable cause to search for a VCR/VHS tape, or that anyone gave a statement saying that they saw Joubert take any video or in possession of any video recording of any nature.
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