In re: Dean Maynard Boland, Debtor.
Dean Maynard Boland, Defendant-Appellee. Jane Doe; Jane Roe, Plaintiffs-Appellants,
Argued: May 8, 2018
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.
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
HUMPHREY, BANKRUPTCY APPELLATE PANEL JUDGE
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).
ISSUES ON APPEAL
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
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
of Issues Presented for Appeal, Adv. No. 16-01058 ECF No. 53.
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).
JURISDICTION AND STANDARD OF REVIEW
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[.]'").
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)).
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.
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.
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.
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") 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),  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),  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.
Diversion Agreement ("Trial Ex. 1") at 1-2, Adv.
No. 16-01058 ECF No. 42-2 (footnotes added). A stipulation of
facts was entered into on April 5, 2007 between Boland and
the United States Attorney as part of the Diversion
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 Istockphoto.com, 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
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
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.
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.
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).
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
Lora v. Boland, 825 F.Supp.2d 905, 907 (N.D. Ohio
summary judgment, the district court determined that the
Appellants suffered personal injury and were persons
aggrieved under 18 U.S.C. § 2255(a). 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.
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).
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,