UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5003
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BARRY E. GITARTS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:07-cr-00464-LO-1)
Submitted: July 29, 2009 Decided: August 28, 2009
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jonathan L. Katz, JON KATZ, P.C., Silver Spring, Maryland, for
Appellant. Dana J. Boente, United States Attorney, Jay V.
Prabhu, Assistant United States Attorney, Josh Goldfoot, Tyler
G. Newby, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Barry E. Gitarts was convicted of conspiracy to
defraud the United States, in violation of 18 U.S.C. § 371
(2006). He received a sentence of eighteen months’
imprisonment. Gitarts raises several issues on appeal:
(1) evidence obtained from searches of his home and remote
computer server should have been suppressed; (2) the indictment
should have been dismissed for failing to sufficiently charge a
crime; (3) statements made by Gitarts during questioning at his
residence should have been suppressed; (4) venue did not
properly lay in the Eastern District of Virginia; (5) the
district court improperly admitted business records in violation
of the Confrontation Clause; (6) the evidence against him was
insufficient to support the conviction; (7) the district court
abused its discretion in providing the indictment to the jury
during its deliberations; and (8) his sentence was unreasonable.
We affirm.
I. Searches of Gitarts’s Home and the TSV Server
Gitarts asserts that the searches executed on his home
and on the TSV server, a computer server located in Texas,
should have been suppressed because the authorities lacked
probable cause. In reviewing the district court’s ruling on a
motion to suppress, we review the district court’s factual
2
findings for clear error and its legal determinations de novo.
United States v. Cain, 524 F.3d 477, 481 (4th Cir. 2008). The
facts are reviewed in the light most favorable to the prevailing
party below. United States v. Jamison,
509 F.3d 623, 628 (4th
Cir. 2007).
The relevant inquiry when reviewing the propriety of
the issuance of a search warrant is whether, under the totality
of the circumstances, the issuing judge had a substantial basis
for concluding there was probable cause to issue the warrant.
See Illinois v. Gates, 462 U.S. 213, 238-39 (1983). The facts
presented to the issuing judge need only convince a person of
reasonable caution that contraband or evidence of a crime will
be found at the place to be searched. Texas v. Brown,
460 U.S.
730, 742 (1983). Reviewing courts afford great deference to a
magistrate’s finding of probable cause. See Gates,
462 U.S. at
236.
It is clear that the TSV warrant was supported by
probable cause. The affidavits presented in support of the
warrant explicitly detailed the information given to the FBI by
the Recording Industry Association of America (“RIAA”)
concerning an underground music piracy conspiracy known as
Apocalypse Production Crew (“aPC”) and its distribution of
pirated material. A confidential informant worked with the
RIAA, allowing the RIAA to access infringing music files stored
3
on the TSV server and download them directly to an independent
contractor working with the RIAA. On this basis, the RIAA
provided the government with (1) infringing music titles
downloaded by the independent contractor from TSV; (2) transfer
logs showing such downloads; (3) sample screen shots of the
downloads; (4) a listing of several TSV directories; (5) logs of
chat groups between aPC members. This information was
independently analyzed and confirmed by the FBI. The FBI then
learned the location of the server by way of its IP address, and
through the server’s internet service provider (“ISP”). In
light of the great deference due to the judgment of the issuing
magistrate, Gates, 462 U.S. at 236, we find that probable cause
supported the issuance of the warrant for the TSV server.
We reach the same result regarding the affidavit
supporting the warrant for a search of Gitarts’s residence. In
addition to incorporating the information in support of the TSV
warrant, the affidavit contained further information linking
Gitarts to aPC and the TSV server. Records turned over by the
ISP indicated that Gitarts was paying for the TSV’s ISP services
from his New York residence. Records from PayPal, an online
money transfer service, indicated a monetary transfer from Paul
Davis, the leader of aPC, to Gitarts. Moreover, analysis of
data contained on the TSV server indicated that someone had
accessed the server as an administrator on more than one
4
occasion from a computer located at Gitarts’s residence.
Therefore, we find that probable cause supported issuance of the
warrant for a search of Gitarts’s residence.
II. Statements Made by Gitarts
Gitarts next contends the district court erroneously
determined Gitarts was not in custody at the time he gave
statements to authorities during the search of his apartment.
Therefore, according to Gitarts, the district court erred in
denying the motion to suppress his statements.
Statements obtained from an individual during a
custodial interrogation are presumptively compelled in violation
of the Fifth Amendment, unless the Government shows that law
enforcement officers adequately informed the individual of his
Miranda 1 rights and secured a waiver of those rights. United
States v. Cardwell, 433 F.3d 378, 388 (4th Cir. 2005). An
individual is in custody for Miranda purposes when, under the
totality of the circumstances, the individual’s “freedom of
action is curtailed to a degree associated with formal arrest.”
Berkemer v. McCarty,
468 U.S. 420, 440 (1984) (internal
quotation marks and citation omitted). Thus, an individual may
still be “in custody” even when informed that he is not under
1
Miranda v. Arizona, 384 U.S. 436 (1966).
5
arrest, if a “reasonable man in [his] position would have
understood his situation to be one of custody.” United
States v. Colonna, 511 F.3d 431, 435 (4th Cir. 2007) (internal
quotation marks and citation omitted).
Here, Gitarts was not in custody during his
questioning. Gitarts was questioned in his own home in the
presence of his family. He was not handcuffed or otherwise
restrained, was not told he was under arrest, and was told he
could leave at any time. See United States v. Parker, 262 F.3d
415, 419 (4th Cir. 2001) (finding no Miranda violation where
subject questioned in own home, without restraint, and never
told she was not free to leave). Accordingly, because a
reasonable person in Gitarts’s situation would not have felt his
freedom was curtailed to the degree associated with a formal
arrest, Miranda was not implicated during Gitarts’s questioning.
Therefore, the district judge did not err in denying Gitarts’s
motion to suppress.
III. Denial of Motion to Dismiss Indictment
Next, Gitarts contends that the district court erred
in denying his pretrial motion to dismiss his indictment for
failure to sufficiently charge a crime. Where a district
court’s denial of a defendant’s motion to dismiss an indictment
depends on a question of law, we review de novo the propriety of
6
such a denial. United States v. Hatcher, 560 F.3d 222, 224 (4th
Cir. 2009). Rule 7(c)(1), Fed. R. Crim. P., provides, in
pertinent part: “The indictment or information must be a plain,
concise, and definite written statement of the essential facts
constituting the offense charged and must be signed by an
attorney for the government.” Gitarts contends that the
indictment is not sufficiently plain, concise, or definite, and
fails to contain the “essential facts constituting the offense
charged.”
Gitarts’s assertion lacks merit. The indictment
clearly delineates the scope of the online piracy conspiracy, in
which Gitarts, in cooperation with others, “would obtain, rip,
. . . and distribute copyrighted music files to group-affiliated
Internet file storage sites . . . throughout the world.” In
furtherance of that conspiracy, Gitarts paid for and
administered a computer server in Texas in order “to store
hundreds of unauthorized copies of copyrighted works.” We find
the indictment was clearly adequate.
IV. Venue
Gitarts next contends that his conviction should be
reversed for improper venue, as he “was never alleged to have
been physically present in the Eastern District of Virginia, nor
7
to have known of any conspiracy-related activity taking place in
the Eastern District of Virginia.”
We review de novo a district court’s ruling on a
motion to dismiss for improper venue. United States v. Stewart,
256 F.3d 231, 238 (4th Cir. 2001). The U.S. Constitution and
Rule 18 of the Federal Rules of Criminal Procedure require that
a criminal defendant be tried for an offense in the district
where the offense was committed. United States v. Cabrales,
524
U.S. 1, 6-7 (1998); United States v. Ebersole,
411 F.3d 517, 524
(4th Cir. 2005) (“As a general proposition, venue is proper in
any district where the subject crime committed.”) “It is well-
accepted that there may be more than one appropriate venue, or
even a venue in which the defendant has never set foot, so long
as it meets the relevant constitutional and statutory
requirements.” United States v. Johnson,
510 F.3d 521, 524 (4th
Cir. 2007) (internal quotation marks and citation omitted).
Here, the indictment alleged sufficient conspiracy-
related activity to justify venue in the Eastern District of
Virginia. The indictment alleged that a former leader of aPC
used his access to a computer server located in the Eastern
District of Virginia to reward various aPC members with
additional copyrighted works for their involvement in the
conspiracy. In addition, an aPC member using an internet
connection located in the Eastern District of Virginia
8
downloaded an infringing work from the TSV server paid for and
administered by Gitarts. As the sole purpose of the conspiracy
was to gain access to additional infringed works, these actions
in furtherance of the conspiracy are sufficient to place venue
in the Eastern District of Virginia, despite the fact that
Gitarts alleges he was never physically present in the district.
V. Business Records
Gitarts next alleges that the trial court violated his
Sixth Amendment rights in allowing the Government to introduce
business records into evidence through “declarations of
purported records custodians” instead of the live testimony of a
records custodian. Gitarts alleges that such records are
testimonial, and are therefore inadmissible under Crawford v.
Washington, 541 U.S. 36 (2004).
Where evidentiary issues relate to an asserted
violation of the Sixth Amendment, the appropriate standard of
review employed by courts of appeal is de novo. United
States v. Robinson, 389 F.3d 582, 592 (6th Cir. 2004). Under
Crawford, the Confrontation Clause of the Sixth Amendment
prohibits the introduction of out-of-court testimonial evidence
unless the witness is unavailable and the defendant has had a
prior opportunity for cross-examination.
541 U.S. at 68.
9
However, Crawford explicitly states that business
records are not testimonial evidence. 541 U.S. at 56.
Therefore, they are not subject to the requirements of the
Confrontation Clause, and the district court did not err in
allowing the introduction of the business records. 2
VI. Sufficiency of the Evidence
Next, Gitarts contends that the evidence presented to
the jury was insufficient to support the jury’s finding of
guilt. Specifically, Gitarts asserts that his conviction should
be reversed because the Government failed to introduce
certificates of copyright registration in order to demonstrate
infringement and generally failed to prove the existence of a
conspiracy, or that Gitarts was part of any conspiracy.
2
Subsequent to briefing, Gitarts filed notice pursuant to
Fed. R. App. P. 28(j) advising this Court of the Supreme Court’s
recent decision in Melendez-Diaz v. Massachusetts, 557 U.S. __,
129 S. Ct. 2527 (2009). In Melendez-Diaz, the Supreme Court
applied Crawford to preclude the admission into evidence of
“certificates of analysis” detailing the results of forensic
testing performed on seized cocaine. See
id. at 2542. Gitarts
asserts that Melendez-Diaz requires “the exclusion of business
records and all other testimonial hearsay” and requests oral
argument, or, in the alternative, briefing on this issue.
However, because Melendez-Diaz explicitly reaffirms Crawford’s
holding that traditional business records are not testimonial
evidence, we conclude that Melendez-Diaz does not advance
Gitarts’s position. See
id. at 2539-40.
10
“A defendant challenging the sufficiency of the
evidence faces a heavy burden.” United States v. Foster, 507
F.3d 233, 245 (4th Cir. 2007), cert. denied,
128 S. Ct. 1690
(2008). We review a sufficiency of the evidence challenge by
determining whether, viewing the evidence in the light most
favorable to the Government, any rational trier of fact could
find the essential elements of the crime beyond a reasonable
doubt. United States v. Collins,
412 F.3d 515, 519 (4th Cir.
2005); see Glasser v. United States,
315 U.S. 60, 80 (1942). We
review both direct and circumstantial evidence, and accord the
Government all reasonable inferences from the facts shown to
those sought to be established. United States v. Harvey,
532
F.3d 326, 333 (4th Cir. 2008).
In order to prove conspiracy to defraud the United
States, the Government must demonstrate: “(1) the existence of
an agreement, (2) an overt act by one of the conspirators in
furtherance of the objectives, and (3) an intent on the part of
the conspirators to agree, as well as to defraud the United
States.” United States v. Tedder, 801 F.2d 1437, 1446 (4th Cir.
1986). Though Gitarts asserts that the Government was required
to introduce certificates of registration in order to
demonstrate copyright infringement, this contention is without
merit. While he may be correct that the Government must “show
copyright certificate registration to maintain a copyright
11
infringement action,” Gitarts overlooks the fact that he was not
prosecuted for criminal infringement of copyright. In so doing,
Gitarts “confuses the offense of criminal conspiracy with the
substantive goal of the conspiracy.” United States v. Tucker,
376 F.3d 236, 238 (4th Cir. 2004). In a prosecution for
conspiracy, the Government need not prove “that the object of
the conspiracy was achieved or could have been achieved, only
that the parties agreed to achieve it.”
Id. Our review of the
record indicates that the Government provided sufficient
evidence to allow a rational trier of fact to find the essential
elements of the conspiracy beyond a reasonable doubt.
VII. Submission of Indictment to the Jury
As the final challenge to his conviction, Gitarts
contends that the district court erred in submitting the
indictment to the jury. In support of this argument, Gitarts
lists roughly ten paragraphs of the indictment that he asserts
contain allegations not established at trial.
We review a district court’s decision to submit an
indictment to the jury for abuse of discretion. See United
States v. Polowichak, 783 F.2d 410, 413 (4th Cir. 1986) (“The
submission of an indictment to the jury is a discretionary
matter with the district court.”) Generally, irrelevant
allegations contained in the indictment should be redacted prior
12
to its submission to the jury. See id. However, if no
redaction occurs, there is no reversible error so long as “the
jury is unequivocally instructed that the indictment is not
evidence, that the indictment is distributed solely as an aid in
following the court’s instructions and the arguments of counsel,
and that certain counts should be disregarded as irrelevant to
the defendants currently before the district court.”
Id.
Here, the district court specifically informed the
jury that the indictment was not evidence of any kind. The
court also stated that the Government was not required to prove
all the methods of conspiracy alleged in the indictment, but
that, in order to convict, every juror must agree on at least
one alleged method of conspiracy engaged in by Gitarts. Because
the court unequivocally informed the jury that the indictment
was not evidence, and that it could consider nothing but the
evidence presented before it, the court did not abuse its
discretion in submitting the indictment to the jury.
VIII. Sentencing Issues
Gitarts asserts that the sentence imposed by the
district court was unreasonable in two respects. When
considering the reasonableness of a sentence, we review legal
conclusions de novo and factual findings, such as loss
13
calculations, for clear error. United States v. Abu Ali, 528
F.3d 210, 261 (4th Cir. 2008).
Gitarts first contends that the trial court
incorrectly calculated the amount of loss arising from his
offense conduct, resulting in an improperly elevated offense
level. Though loss must be established by a preponderance of
the evidence, the district court “need only make a reasonable
estimate of the loss, given the available information.” United
States v. Miller, 316 F.3d 495, 503 (4th Cir. 2003). Here, the
district court appropriately considered the loss calculation
and, after hearing extensive argument from both sides regarding
the loss evidence, acted reasonably by accepting the estimate of
the government. We therefore find this issue to be without
merit.
Next, Gitarts contends that the district court erred
by adding two points to his offense level for obstruction of
justice. Under U.S. Sentencing Guidelines Manual (“USSG”)
§ 3C1.1 (2003),
If (A) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to
(i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense,
increase the offense level by 2 levels.
14
Specific examples of such behavior include the destruction of
evidence, USSG § 3C1.1, cmt. n.4(d), and providing a materially
false statement to a law enforcement officer, USSG § 3C1.1, cmt.
n.4(g). Here, the evidence at trial was persuasive that Gitarts
lied to federal investigators on more than one occasion and
attempted to overwrite the hard drive of his computer in an
attempt to destroy the evidence of his crimes. Accordingly, we
find that the district court did not err in increasing Gitarts’s
offense level for obstruction of justice.
Therefore, we affirm Gitarts’s conviction and
sentence. We deny Gitarts’s request for oral argument because
the facts and legal contentions are adequately presented in the
materials before the court, and argument would not aid the
decisional process.
AFFIRMED
15
