United States v. Wyss, 2013 WL 5701059 (C.A.5(La.)). October 2013

Appellant John Wyss a.k.a. “Bones” appeals his conviction and life sentence for engaging in a child exploitation enterprise in violation of 18 U.S.C.§ 2252A(g).  Appellant makes a novel (read: Be On The Lookout) argument that his Sixth Amendment Right to Confrontation was violated when the court allowed testimony regarding Internet Protocol (IP) address data from the Sprint-Nextel legal compliance department.  He also argues that the court erroneously allowed the government’s forensic examiner to opine that Wyss is the same person who posted online under the name “Bones.”

Appellant was using the throwback technology of online bulletin boards to post child exploitation images. The use of the Bulletin Board System (BBS) predates the expansion of the Internet.  As such, the use of this system drastically declined as the use of the World Wide Web increased.  However, criminals intent on sharing and acquiring child abuse images have been steadily using this system because of its anonymity (one need only create a username and password), and because this old technology often flies under the radar of law enforcement investigations.  The computer code which designed the BBS was written to mimic a cork-board where information could be posted or taken off the board by a user.  Boards designed for special interests allow like-minded users to discuss topics (threads), upload files, download files, or in some cases create direct connections between users for private conversations (chats).  The board of choice for Appellant was known as “Dreamboard” and it was hosted by a business named Certified Hosting Solutions.  Based on properly executed search warrants, the hard drives for Dreamboard’s servers were obtained.  A search of the hard drives revealed stored IP addresses.  The IP addresses then lead to the Internet Service Provider (Sprint-Nextell in this case) for each IP address.  Subpoenaed records allowed the Government’s computer forensic examiner to identify Wyss, and acquire his physical address as well as his assigned network identifier “JWYSS14” and ultimately link him to “Bones.”  Upon interrogation, Wyss denied any involvement in child pornography.  However his cellmate (also an avid Dreamboard user) testified against Wyss related to certain jailhouse discussions about how Wyss destroyed incriminating evidence and admitted to being “Bones.”

Attack on Confrontation Grounds:  Appellant argued at trial and again on appeal that the testimony provided by Sprint-Nextell violated the Sixth Amendment because IP address records maintained by ISPs are testimonial in nature “because they were produced by a representative from Sprint’s legal compliance department who did not personally retrieve the data, in response to a trial subpoena.”  The court goes through Crawford and its progeny but ultimately has no difficulty reaching the conclusion that the primary purpose of creating these records is for customer billing (unlike laboratory certificates to prove drug type and weight).  “Sprint did not create or maintain IP addresses and data within its corporate records for purposes of litigation or as evidence of customer usage to exploit children.”

Attack on Opinion Testimony of Forensic Examiner on F.R.E. 702 and 704 Grounds:  Appellant argues that the court impermissibly allowed the computer forensic examiner expert to opine that Wyss is the same person who posted on Dreamboard under the name “Bones.”  Evidentiary rulings are reviewed for an abuse of discretion and even then error is tested for harm.  However even a cursory reading of F.R.E. 702 allows an expert to testify if his skill/knowledge will help the trier of fact.  He can even offer opinion testimony if based on sufficient facts or data.  The court held “testimony from the government’s computer forensic expert was based on examination and comparisons of Wyss’s Sprint records, IP addresses and data assigned to him on certain dates and times, along with data retrieved form the Dreamboard servers showing the IP addresses and data that correspond to postings by Bones.”



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