PEOPLE V. CHELSEA KORWATCH Fact Pattern: In 2010 a website launched on the dark web operating at the URL www.GaultsGulch.yg. Gault’s Gulch was a site accessible only by a Tor browser*, which allowed users to buy and sell goods and services using Bitcoin**. Gault’s Gulch operated under the motto “everything at a price” and allowed for peer-to-peer transactions. Although the site allowed for peer-to-peer transactions it was maintained by a user known as “Captain Taggart,” who received a small cut of all deals. Gault’s Gulch boasted thousands of items for sale that are illegal in some countries, ranging from fringe collectors’ items such as Nazi memorabilia (which is illegal in France) to bootlegged movies and software (which is illegal in member nations of the World Patent Treaty which does not include Taiwan , Argentina, and several others). Additionally the site served as a hub for people selling items that are illegal in all nations such as illicit drugs and violent services such as murder-for-hire. In 2013, Captain Taggart posted a “buy” item offering $50,000 to any person who killed Casey Bilty, an officer of the Northrop Police Department who had been acquitted in the shooting death of a suspect in a drug bust linked to Gault’s Gulch. Given the risky and unusual nature of the posting, Captain Taggart breached the standard protocol of paying in Bitcoin and offered to provide $10,000 cash up front and $40,000 upon completion. The bid was accepted by a user known as Pancakes. While on duty Officer Bilty was killed by an assailant, Kevin Santana, who was arrested during the attack. As part of a plea deal, Santana admitted to being the Gault’s Gulch user known as Pancakes and gave police a description of Captain Taggart. Using facial recognition software law enforcement was able to match the drawing to publicly available social media photographs to identify Chelsea Korwatch, a then 19 year old computer science student. After obtaining a warrant for her arrest, police sought to capture her in the library of her university while her laptop was open, but immediately before police grabbed her she slammed her laptop shut. When law enforcement opened her laptop they discovered that it was heavily encrypted. After her arrest, the forensic investigators were unable to breach the encryption and police forced Korwatch to enter her password. A search of her hard drive revealed that Korwatch was in fact Captain Taggart. She was charged with and convicted by a jury of 4,000 counts of conspiracy to sell narcotics and one count of conspiracy to murder a police officer, a capital offense in California. At trial the District Attorney presented evidence gathered from Korwatch’s computer. Kevin Santana did not testify at trial. Upon conviction Korwatch was sentenced to life in prison for conspiracy to sell narcotics and sentenced to death for conspiracy to commit murder of a police officer. *Tor is a protocol which encrypts data and routes internet traffic through intermediary servers which anonymize IP addresses before reaching a final destination. ** Bitcoin is a cryptocurrency not backed by any sovereign nation, which acts like digital, untraceable cash. Questions Presented: Issue 1: Does forcing an individual to decrypt a hard drive constitute an act of compelled self- incrimination in violation of the 5th Amendment? Issue 2: Does California’s death penalty practice constitute cruel and unusual punishment in violation of the 8th Amendment? Case Library: • 5th Amendment to the United States Constitution • 8th Amendment to the United States Constitution • Fisher v. United States • Gregg v. Georgia • Roper v. Simmons • United States v. Hubbell Caution As of: December 12, 2016 8:27 PM EST Fisher v. United States Supreme Court of the United States November 3, 1975, Argued ; April 21, 1976 * No. 74-18 Reporter 425 U.S. 391 *; 96 S. Ct. 1569 **; 48 L. Ed. 2d 39 ***; 1976 U.S. LEXIS 98 ****; 76-1 U.S. Tax Cas. (CCH) P9353; 37 A.F.T.R.2d (RIA) 1244 * Together with No. 74-611, United States et al. v. Kasmir et al., on certiorari to the United States Court of Appeals for the Fifth Circuit. Kyle Smith Page 2 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****98 Amendment was limited to prohibiting the use of FISHER ET AL. v. UNITED STATES ET AL. physical or moral compulsion exerted on the person asserting the privilege. The clients' privilege under Fifth Prior History: [****1] CERTIORARI TO THE UNITED Amendment was not violated by the enforcement of the STATES COURT OF APPEALS FOR THE THIRD summonses because enforcement against a client's CIRCUIT lawyer could not compel the client to do anything, particularly not to be a witness against himself. The Disposition: The court affirmed the judgment of the documents were not the clients' private papers. The Third Circuit and reversed the judgment of the Fifth judgment of the Third Circuit was affirmed. The Circuit. The accountant's documents at issue were not judgment of the Fifth Circuit was reversed. privileged either in the hands of the lawyers or of the clients since papers demanded were not clients' private Outcome papers; production of the documents would involve no The court affirmed the judgment of the Third Circuit and incriminating testimony within the protection of the Fifth reversed the judgment of the Fifth Circuit. The Amendment. accountant's documents at issue were not privileged either in the hands of the lawyers or of the clients since Core Terms papers demanded were not clients' private papers; documents, papers, subpoena, cases, taxpayers, production of the documents would involve no incriminating, records, self-incrimination, testimonial, incriminating testimony within the protection of the Fifth privacy, producing, private papers, summons, Amendment. authentication, compulsion, compelled production, attorney-client, contents, immunity, partnership, LexisNexis® Headnotes disclosure, privileged, demanded, protects, seizure, legal advice, documentary, compulsory, seized, Constitutional Law > ... > Fundamental Rights > Procedural attorneys Due Process > Self-Incrimination Privilege Case Summary HN1 U.S. Const. amend. V provides that no person shall be compelled in any criminal case to be a witness against himself. Procedural Posture Certiorari was granted to cases from the United States Constitutional Law > ... > Fundamental Rights > Procedural Court of Appeals for the Fifth and Third Circuits to Due Process > Self-Incrimination Privilege resolve a conflict created by opposing judgments regarding whether a summons directing an attorney to HN2 U.S. Const. amend. V is limited to prohibiting the produce documents delivered to the attorney by a client use of physical or moral compulsion exerted on the for purpose of getting legal advice was enforceable over person asserting the self-incrimination privilege. claims that the documents were immune from summons in the hands of the client under the Fifth Amendment. Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Self-Incrimination Privilege Overview In two separate cases, following notice of investigation HN3 The privilege under the U.S. Const. amend. V is of possible civil or criminal liability under federal tax never intended to permit a person to plead the fact that laws, the clients obtained documents relating to the some third person might be incriminated by his preparation of their tax returns by their accountants. The testimony, even though he were the agent of such clients transferred the documents to their lawyers. The person The amendment is limited to a person who shall Internal Revenue Service served summonses on the be compelled in any criminal case to be a witness attorneys for production of the documents. The against himself. It is extortion of information from the attorneys contended that enforcement of the accused himself that offends a court's sense of justice. summonses would involve compulsory self-incrimination of the clients in violation of the Fifth Amendment. The Constitutional Law > ... > Fundamental Rights > Search & summonses were enforced by the district court. The Seizure > Warrants Third Circuit upheld the order, but the Fifth Circuit Constitutional Law > ... > Fundamental Rights > Procedural reversed the order. The court stated that the Fifth Due Process > Self-Incrimination Privilege Kyle Smith Page 3 of 24 425 U.S. 391, *391; 96 S. Ct. 1569, **1569; 48 L. Ed. 2d 39, ***39; 1976 U.S. LEXIS 98, ****1 Criminal Law & Procedure > Search & Evidence > Privileges > Attorney-Client Privilege > General Seizure > Warrantless Searches > General Overview Overview Criminal Law & Procedure > ... > Warrantless HN8 When the client himself would be privileged from Searches > Exigent Circumstances > Information From Others production of the document, either as a party at common law or as exempt from self-incrimination, the HN4 U.S. Const. amend. V protects against compelled attorney having possession of the document is not self-incrimination, not the disclosure of private bound to produce. information. Constitutional Law > ... > Fundamental Rights > Procedural Constitutional Law > ... > Fundamental Rights > Search & Due Process > Self-Incrimination Privilege Seizure > Scope of Protection HN9 U.S. Const. amend. V does not independently Constitutional Law > ... > Fundamental Rights > Procedural proscribe the compelled production of every sort of Due Process > Self-Incrimination Privilege incriminating evidence, but applies only when the Criminal Law & Procedure