Opinion
NO. CR. S-06-285 LKK.
January 14, 2008
ORDER
The defendant has moved for reconsideration of this court's September 6, 2007 order granting the Government's motion in limine with regards to the defendant's public authority defense for Counts 1 and 2 of the superceding indictment. The court denies the motion in pertinent part.
I. PROCEDURAL HISTORY
The defendant has been charged with violations of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(a)(2). Additional counts of the indictment were dismissed on January 7, 2008.
In a September 6, 2007 order, the court granted the Government's motion in limine in part. Relevant to the instant motion, the court held that the defendant was precluded from presenting a "vigilante defense" for Counts 1 and 2, insofar as the defense was based on a theory of public authority. The court based its ruling on the fact that there had been no evidence of direct communication between the defendant and law enforcement and that law enforcement agencies' general calls for cooperation by citizens did not suffice to establish this defense. The defendant now moves for the court to reconsider this determination and hold that a jury could find that the defendant was reasonable in relying on these public calls for cooperation and a belief that he would not be prosecuted for the actions he undertook. The defendant also asks the court to reconsider that portion of its order that states that under United States v. Roberts, 887 F.2d 534 (5th Cir. 1989) an affirmative defense must negate an essential element of the offense.
II. STANDARD
"Under the 'law of the case' doctrine a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case." United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (citing Thomas v. Bible, 983 F.2d 153, 154 (9th Cir.),cert. denied, 508 U.S. 951 (1993)). Although motions to reconsider are directed to the sound discretion of the court, see Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and rev'd in part on other grounds, 824 F.2d 514 (9th Cir. 1987), cert. denied, 486 U.S. 1015 (1988), considerations of judicial economy weigh heavily in the process. Thus, Local Rule 78-230(k) requires that a party seeking reconsideration of a district court's order must brief the "new or different facts or circumstances . . . which . . . were not shown upon such prior motion, or what other grounds exist for the motion." Generally speaking, before reconsideration may be granted there must be a change in the controlling law or facts, the need to correct a clear error, or the need to prevent manifest injustice. See Alexander, 106 F.3d at 876.
As with motions to alter or amend a judgment made pursuant to Fed.R.Civ.P. 59(a), motions to reconsider are not vehicles permitting the unsuccessful party to "rehash" arguments previously presented. See Costello v. United States Government, 765 F. Supp. 1003, 1009 (C.D. Cal. 1991). Nor is a motion to reconsider justified on the basis of new evidence available prior to the court's ruling. See Fay Corp. v. BAT Holdings One, Inc., 651 F. Supp. 307, 309 (W.D. Wash. 1987), aff'd, 896 F.2d 1227 (9th Cir. 1990). Finally, "after thoughts" or "shifting of ground" do not constitute an appropriate basis for reconsideration. See id. These relatively restrictive standards "reflect district courts' concern for preserving dwindling resources and promoting judicial efficiency." Costello, 765 F. Supp. at 1009.
III. ANALYSIS
Here, the defendant asks the court to reconsider its September 6, 2007 order on the basis that the defendant can now adduce evidence that the defendant reasonably relied on calls for cooperation by law enforcement and believed that he would not be prosecuted for his conduct as a result. The court declines to reconsider its ruling on this basis.
The law appears to require that a necessary element of this defense is the defendant's communication with law enforcement prior to his engaging in "undercover" illegal activity. See United States v. Jumah, 2007 WL 2231164 (4th Cir. 2997); United States v. Fulcher, 250 F.3d 244, 252 (4th Cir. 2001); United States v. Kuai Li, 475 F. Supp. 2d 590, 592, n. 4 (E.D. Va. 2007).
The additional cases to which the defendant cites do not contradict this standard. In each of those cases, the issue before the courts was whether a non-law enforcement computer hacker was an agent of law enforcement for the purposes of the Fourth Amendment. See United States v. Jarrett, 338 F.3d 339 (4th Cir. 2003); United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003); United States v. Kline, 2004 WL 2286354 (9th Cir. 2004). In each case, the court concluded that the hacker was not an agent of law enforcement for Fourth Amendment purposes, despite the hackers turning over data they uncovered to law enforcement.See id. It appears true that in each case the computer hacker had not communicated with law enforcement prior to retrieving data from the defendants' computers. See id. The defendant here argues that this fact indicates that in some instances, rather than prosecute the citizen as the Government is doing here, the Government relied on the data gathered by non-law enforcement citizens in order to prosecute others.
These cases are not particularly helpful for the present issue. In each case, the courts were considering the narrow question of whether a citizen who had no connection to law enforcement before hacking into another person's computer was an "agent of law enforcement," whose actions would implicate the Fourth Amendment. The cases cited by the defendant offer no instruction as to whether those hackers could have been prosecuted for their actions, or whether they would have enjoyed a complete defense on a "public authority" theory. In each case, the Government's reliance on the data the hackers collected rather than prosecution of them may indicate nothing more than the exercise of prosecutorial discretion.
In sum, because the defendant has offered no evidence of his communications with law enforcement prior to engaging in the conduct for which he has been charged, his public authority defense is not viable as a matter of law. The court concludes that its holding in its September 6, 2007 should not be disrupted on this issue. See Alexander, 106 F.3d at 876.
The court does grant the defendant's motion, however, to reconsider its statement in its September 6, 2007 order that a "true" affirmative defense is one that negates an element of the offense. The court stated this in its discussion of United States v. Roberts, 887 F.2d 534, 536 (5th Cir. 1989). The defendant is correct, that this is a misstatement of Roberts and of Ninth Circuit law. See, e.g., United States v. Bear, 439 F.3d 656, 570 (9th Cir. 2006); United States v. Batterjee, 361 F.3d 1201, 1218 (9th Cir. 2006). An affirmative defense need not negate an element of the offense. Nonetheless, this correction does not disturb the court's holdings in its September 6, 2007 order that: (1) the public authority defense is not available to him, but (2) he may present evidence of "choice of evils" defense.
IV. CONCLUSION
For the reasons provided herein, the defendant's motion is GRANTED in part.
IT IS SO ORDERED.