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In re Boland

United States Court of Appeals, Sixth Circuit

February 13, 2019

In re: Dean Maynard Boland, Debtor.
Dean Maynard Boland, Defendant-Appellee. Jane Doe; Jane Roe, Plaintiffs-Appellants,

          Argued: May 8, 2018

          On Appeal from the United States Bankruptcy Court for the Northern District of Ohio at Cleveland. No. 16-10250-Jessica E. Price Smith, Judge.


          Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants.

          Stephen D. Hobt, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          Jonathan E. Rosenbaum, Elyria, Ohio, for Appellants.

          Stephen D. Hobt, Cleveland, Ohio, for Appellee.

          HUMPHREY, J., filed the opinion of the Bankruptcy Appellate Panel in which BUCHANAN, J., joined. DALES, J. (pp. 27-28), filed a separate opinion concurring in the result.

          Before: BUCHANAN, DALES, and HUMPHREY, Bankruptcy Appellate Panel Judges.



         Appellants, Jane Doe and Jane Roe, appeal a determination of the bankruptcy court that a civil judgment for statutory damages awarded pursuant to 18 U.S.C. § 2255 is dischargeable because Appellants failed to meet their burden under 11 U.S.C. § 523(a)(6).


         The issues Appellants raised are:

1. Whether the bankruptcy court erred when it discharged damages imposed upon Debtor pursuant to 18 U.S.C. § 2255 as a penalty for committing criminal conduct prohibited by 18 U.S.C. § 2252A by finding that Debtor was not substantially certain that he would injure the two minor Plaintiffs when he morphed their images into child pornography for public display as [court] exhibits [in criminal cases].
2. Whether the Doctrine of Collateral Estoppel precluded Debtor from denying in an adversary proceeding that he was substantially certain his actions would cause injury because it was determined . . . in prior litigation between identical parties.

         Statement of Issues Presented for Appeal, Adv. No. 16-01058 ECF No. 53.

         As will be explained, the majority finds that the bankruptcy court did not err in determining that collateral estoppel did not apply on the issue of whether debtor Dean Boland intended to injure the Appellants since intent to injure was not actually litigated or necessary to the outcome of the prior federal litigation. However, the Panel concludes that the stipulations Boland made through his Pretrial Diversion Agreement and the decisions rendered by the United States District Court for the Northern District of Ohio and the Sixth Circuit Court of Appeals on the issue of his civil liability to Appellants established as a matter of law that Boland knowingly created and possessed pornographic images involving images of real children. Further, because the bankruptcy court misapprehended the nature of the harm the Appellants suffered, the Panel holds that the bankruptcy court made clearly erroneous findings as to Boland's intent to harm. The bankruptcy court did not consider the legal injury suffered by the Appellants as a result of the invasion of their privacy and reputational interests. Finally, the Panel concludes that Boland acted without justification or excuse thereby maliciously injuring Appellants within the meaning of 11 U.S.C. § 523(a)(6).


         The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Northern District of Ohio has authorized appeals to the Panel, and no party has timely filed to have this appeal heard by the district court. 28 U.S.C. §§ 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right. 28 U.S.C. § 158(a)(1). For the purpose of an appeal, a final order is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. U.S., 489 U.S. 794, 798, 109 S.Ct. 1494, 1497 (1989) (citations and internal quotations marks omitted). A determination of dischargeability is a final order. Trudel v. United States Dep't of Educ. (In re Trudel), 514 B.R. 219, 222 (B.A.P. 6th Cir. 2014). See also Ritzen Grp., Inc. v. Jackson Masonry, LLC (In re Jackson Masonry, LLC), 906 F.3d 494, 500 (6th Cir. 2018) (quoting Bullard v. Blue Hills Bank, U.S., 135 S.Ct. 1686, 1694 (2015) (adversary proceedings are "'essentially full civil lawsuits carried out under the umbrella of the bankruptcy case[.]'").

         A determination of the dischargeability of a debt presents mixed questions of law and fact. Kraus Anderson Capital, Inc. v. Bradley (In re Bradley), 507 B.R. 192, 196 (B.A.P. 6th Cir. 2014). The appellate court "must break it down into its constituent parts and apply the appropriate standard of review for each part." Id. (citing Bank of Montreal v. Official Comm. of Unsecured Creditors (In re Am. HomePatient, Inc., Inc.), 420 F.3d 559, 563 (6th Cir. 2005) (citations omitted)). Legal determinations are reviewed de novo and factual findings are reviewed under the clearly erroneous standard. Bradley, 507 B.R. at 196. "Mixed questions are not all alike." U.S. Bank N.A., Trustee ex rel. CWCapital Asset Mgmt. v. Village at Lakeridge, LLC, U.S., 138 S.Ct. 960, 967 (2018). "[T]he standard of review for a mixed question all depends-on whether answering it entails primarily legal or factual work." Id.

          "Under a de novo standard of review, the reviewing court decides an issue independently of, and without deference to, the trial court's determination." Menninger v. Accredited Home Lenders (In re Morgeson), 371 B.R. 798, 800 (B.A.P. 6th Cir. 2007) (citation omitted). Essentially, the reviewing court decides the issue "as if it had not been heard before." Mktg. & Creative Sols., Inc. v. Scripps Howard Broad. Co. (In re Mktg. & Creative Sols., Inc.), 338 B.R. 300, 302 (B.A.P. 6th Cir. 2006) (citation omitted). "No deference is given to the trial court's conclusions of law." Id. A factual finding "is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Bradley, 507 B.R. at 196 (quoting Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir. 2007) (internal quotation marks and citation omitted)). If the trial court's factual conclusion is "plausible in light of the record viewed in its entirety, the court of appeals may not reverse it . . . ." Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511 (1985). Further, the appellate court cannot find clear error "[w]here there are two permissible views of the evidence," even if the appellate court weighs the evidence differently. King v. Zamiara, 680 F.3d 686, 694 (6th Cir. 2012) (citing Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 556 (6th Cir. 2010) (citation omitted)).

         III. FACTS

         Dean Boland, now known as Jack Boland, a lawyer licensed in Ohio, was an expert witness and defense counsel for criminal defendants charged in federal and state child pornography cases. His expertise was to demonstrate that pornographic images may be manipulated or altered to appear that minors were engaged in sexual conduct when they were not. To demonstrate this point, Boland purchased innocent images of minors from web pages that sold stock photos and included the images of those minors in pornographic images by altering or "morphing" the images. This type of expert testimony was apparently considered important because the defendants in these criminal cases argued they did not knowingly view or possess child pornography.

         Between February 2004 and March 15, 2004, Boland downloaded innocent images of minors from two stock photo websites. Those photos were manipulated and included in images of sexual acts. Boland then displayed "before and after" versions of the images in criminal proceedings and opined about the use of computer technology to alter such images.

         In 2004, an issue was raised while Boland was testifying as an expert witness in the criminal case of United States v. Shreck in the United States District Court for the Northern District of Oklahoma as to whether Boland committed a crime in creating and displaying these images of child pornography. Boland was instructed by the judge presiding over that case to delete the images from his computer. While Boland deleted the images from his computer, he did not permanently remove the images from his computer. Apparently fearing that he may be prosecuted in the Northern District of Ohio upon his return to Ohio if he flew back with the images on his computer, Boland shipped his computer by Federal Express to his mother in Ohio.

         As a result of an investigation and a negotiation between Boland and the United States Attorney, on February 5, 2007, Boland voluntarily entered into a Pre-Trial Diversion Agreement (the "Diversion Agreement")[1] in the United States District Court for the Northern District of Ohio. The Diversion Agreement stated:

It appearing that you, Dean M. Boland, committed an offense against the United States from on or about March 16, 2004 through April 1, 2004, in violation of Title 18, United States Code, Section 2252A(a)(5)(B), [2] in that you did knowingly possess a computer and computer disks that contained images of child pornography, as defined in Title 18, United States Code, Section 2256(8), [3] to wit, visual depictions created, adopted and modified to appear that Jane Doe 1, Jane Doe 2, Jane Doe 3, and Jane Doe 4, each a minor child, whose identity is known to the United States Attorney's Office . . . was engaging in sexually explicit conduct, and which child pornography was produced using materials that had been shipped and transported in interstate and foreign commerce by any means including by computer.

         Pre-Trial Diversion Agreement ("Trial Ex. 1") at 1-2, Adv. No. 16-01058 ECF No. 42-2 (footnotes added).[4] A stipulation of facts was entered into on April 5, 2007 between Boland and the United States Attorney as part of the Diversion Agreement:

1. Between February, 2004, and March 15, 2004, Dean M. Boland (Boland) connected to the Internet from his home and office in the Northern District of Ohio. During that time period, and while connected to the Internet, Boland downloaded at least four (4) images, from the Internet, depicting four (4) real, identifiable minors in innocent poses. Boland knew or should have known that such images depicted real, identifiable minors. Boland downloaded two (2) such images from, a website located in Canada. Boland downloaded two (2) such image from websites hosted by Webe web, located in the State of Florida.
2. Boland digitally manipulated such images and combined them with other images to create a series of visual depictions. Such visual depictions were created, by Boland, to appear that each of the four (4) real, identifiable minors engaged in sexually explicit conduct.
3. Boland created and used these visual depictions in his capacity as an attorney and/or witness in a variety of criminal cases in several different courts. Between March, 2004 and January, 2005, Boland transported such visual depictions to, and/or displayed such visual depictions in courts in Summit, Columbiana, Hamilton and Warren Counties, in the State of Ohio, as well as in U.S. District Court in Tulsa, Oklahoma.

Id. at 9. In addition, Boland was required to issue a Public Statement in the Cleveland Bar Journal that was incorporated by reference into the Diversion Agreement. Boland stated that:

In a previous issue of the Cleveland Bar Journal, as well as in certain articles published in the Plain Dealer and the Columbus Dispatch, I have made certain statements regarding a federal investigation surrounding my creation and use, in court, of certain digital images.
In preparation for my testimony, as an expert witness on behalf of defendants, in child pornography cases in several counties in Ohio as well as Federal District Court in Tulsa Oklahoma, I created a series of trial exhibits. I downloaded images, from the Internet, depicting four minors in innocent poses. There was nothing about these images to suggest that they were not real identifiable children and I now know that they were in fact real. I then digitally manipulated such images and combined them with images depicting sexual conduct to create a series of visual depictions. Such visual depictions were created, by me, to appear that each of the four children was engaged in sexually explicit conduct. Despite my good faith belief that my actions taken in my capacity as an expert witness were appropriate under the circumstances, I do recognize that such images violate federal law.
I created the images solely for use in court, and indeed, only used the images in the course of my testimony as an expert witness. While the Ohio Revised Code includes an exception in its child pornography statutes for material used for a judicial purpose, the United States Code contains no such statutory exception. While I do not agree with the law and feel that an exception for judicial purposes is constitutionally mandated, current federal law contains no such exception. I acknowledge that federal authorities based upon a good faith belief, acted reasonably in their effort to enforce federal criminal law and was therefore, wrong for making disparaging comments about the involved investigators and prosecutors. They did act appropriately in their enforcement of federal criminal laws and the protection of the children depicted. I also realize that while I only used the visual depictions in my efforts to educate judges and juries as to the issues surrounding virtual child pornography, it is wrong to do so with the images of innocent children. Believing that all images were to be utilized in court without further exposure or distribution, it was never my intention to harm any child. Accordingly, I apologize to each child and their respective parents and/or guardians for any embarrassment or harm they suffered from the public dissemination of this material.

Id. at 10. The Diversion Agreement placed certain requirements on Boland but did not impose any damages. Id. at 3-6.

         In September 2007 two of the minors, depicted in the sexual images Boland created, sued him under 18 U.S.C. § 2252A(f), which provides civil damages to a person aggrieved due to the conduct prohibited in 18 U.S.C. § 2252A(a) or (b) or 18 U.S.C. § 1466A. Section 2255(a) of Title 18 further provides that a minor victim of a § 2252A violation is entitled to actual damages which shall not be less than $150, 000 for each victim.

         Initially, the district court determined that the liability under these facts could raise Sixth Amendment right to counsel issues, would be unfair in that Boland created the images under a federal court directive in Oklahoma, and raised comity issues with the Ohio state courts since Ohio provided a statutory exception for a bona fide judicial purpose. Lora v. Boland, No. 1:07 CV 2787, 2009 WL 2901306 (N.D. Ohio Sept. 1, 2009). The Sixth Circuit reversed and remanded, finding no exception for expert witnesses and left any constitutional issues for the district court to resolve. Doe v. Boland, 630 F.3d 491 (6th Cir. 2011).

         Upon remand, the parties agreed to brief the following legal questions on summary judgment:

[W]hether any of the Plaintiffs are 'persons aggrieved' entitling them to monetary damages under § 2252A(f); whether the minor Plaintiffs suffered 'personal injury' under § 2255 as a result of the criminal violations; whether the definition of child pornography in § 2256(8)(c) violates the First Amendment; and whether the application of the federal child pornography statutes to an expert witness in Boland's circumstances violates the Sixth Amendment right to effective counsel.

Lora v. Boland, 825 F.Supp.2d 905, 907 (N.D. Ohio 2011).

         On summary judgment, the district court determined that the Appellants suffered personal injury and were persons aggrieved under 18 U.S.C. § 2255(a).[5] The court then turned to the constitutional issues. The district court noted that while the summary judgment motion was pending before him, Boland filed a separate lawsuit for declaratory judgment and injunctive relief against the United States Attorney General, which was assigned to another district court judge. In that complaint, Boland argued that Ohio defense counsel and expert witnesses face criminal and civil liability for actions similar to Boland's and such potential liability was a violation of the First Amendment and the fear of liability and federal prosecution deprived Ohio citizens of the Sixth Amendment right to a fair trial. The district court in the parallel case on the Constitutional issues granted the United States' Motion to Dismiss. Boland v. Holder, 1:09 CV 1614, 2010 WL 3860996 (N.D. Ohio Sept. 30, 2010), aff'd, 682 F.3d 531 (6th Cir. 2012). The decision concluded that (i) the images Boland created were not protected by the First Amendment and (ii) requiring counsel and expert witnesses to comply with the law does not deprive defendants of a fair trial under the Sixth Amendment.

         Informed by that decision as well as his independent analysis, the judge in the statutory damages case found, as many cases had before, that "'morphed' child pornography is not protected speech[.]" Boland, 825 F.Supp.2d at 912. Additionally, the district judge noted that an expert witness could make this same point without victimizing minors, and he rejected the argument that these restrictions amount to a denial of the Sixth Amendment right to counsel. Id. at 912-13. The court awarded damages of $300, 000, $150, 000 for each victim. Upon a second appeal to the Sixth Circuit, the district court's decision regarding statutory damages was affirmed. Doe v. Boland, 698 F.3d 877 (6th Cir. 2012), cert. denied, 570 U.S. 904, 133 S.Ct. 2825 (2013).

         Boland subsequently filed a Chapter 7 bankruptcy petition in the Bankruptcy Court for the Northern District of Ohio. Appellants filed an adversary proceeding, asserting the damages awarded under 18 U.S.C. § 2252A(f) gave rise to a non-dischargeable debt for willful and malicious injury under 11 U.S.C. § 523(a)(6). Prior to trial, Appellants filed a Motion in Limine seeking an order "preventing [Boland] from denying or offering evidence to support the denial of the facts that he 1) knowingly morphed the innocent images of two real and identifiable children into child pornography . . . and 2) was substantially certain that he would cause injury to the plaintiffs when he morphed their images into child pornography." Pls' Mot. in Lim. at 1, Adv. No. 16-01058 ECF No. 14. Appellants argued these issues had previously been determined in the civil damages action. The bankruptcy court granted the first part of the Motion in Limine, determining that those findings were previously made in order to impose liability under 18 U.S.C. § 2252A(f). The bankruptcy court denied the second part of the Motion in Limine seeking a determination as a matter of law that Boland was substantially certain that he would cause injury to the children and determined that the issue to be tried was whether Boland intended to injure the children in creating and using the morphed images:

The second request of the Motion in Limine sought to prevent Mr. Boland from denying that he "was substantially certain that he would cause injury to the plaintiffs when he morphed their images into child pornography . . . ." There is nothing in either the Diversion Agreement or the District Court opinion regarding the intent to injure. Since the issue of intent to injure was not fully and fairly litigated in the prior proceeding and the issue of intent was not necessary to the judgment, the second request of the Plaintiffs' Motion in Limine was denied.
Accordingly, the only issue in this trial is intent to injure . . . .

Doe v. Boland (In re Boland), Adv. No. 16-1058, 2017 WL 2312854, at *1-2 (Bankr. S.D. Ohio May 26, 2017) ...

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