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U.S. v. Drew Motion for Judgment of Acquittal

U.S. v. Drew Motion for Judgment of Acquittal

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Published by Greg Beck
Motion for Judgment of Acquittal in United States v. Lori Drew (MySpace suicide case)
Motion for Judgment of Acquittal in United States v. Lori Drew (MySpace suicide case)

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Published by: Greg Beck on Dec 01, 2008
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05/09/2014

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H. Dean Steward SBN 85317107 Avenida Miramar, Ste. CSan Clemente, CA 92672949-481-4900Fax: (949) 496-6753deansteward@fea.netOrin S. KerrDist. of Columbia BN 9802872000 H. Street NWWashington, DC 20052202-994-4775Fax 202-994-5654okerr@gwu.eduAttorneys for DefendantLori DrewUNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIAUNITED STATES,Plaintiff,vs.LORI DREW,Defendant.Case No. CR-08-582-GWRULE 29 MOTION FOR JUDGEMENT OFACQUITTALComes now defendant, together with counsel, and moves this Courtunder Rule 29 of the federal Rules of Criminal Procedure, for ajudgment of acquittal on all counts. The following materialsupplements this motion, also made orally in open court.Dated: Nov. 23, 2008 s./ H. Dean StewardH. Dean StewardOrin KerrCounsel for Defendant Drew
Case 2:08-cr-00582-GW Document 96 Filed 11/23/2008 Page 1 of 5
 
 
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I. STANDARD OF REVIEWThe standard of review for a Rule 29 motion is to view theevidence presented against the defendant
in the light mostfavorable to the government to determine whether
any rationaltrier of fact could have found the essential elements of the crimebeyond a reasonable doubt.
 
U.S. v. Fretter 31 F.3d 783 (9
th
Cir.1994), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).II. INTENTIt is essential to remember the government's theory of thecase. The defendant is on trial for intentionally violatingMySpace's Terms of Service. The government's theory of the case isthat intentionally violating a website Terms of Service is afederal misdemeanor violation of 18 U.S.C. 1030(a)(2)(C), and thatthis misdemeanor becomes a felony when it is undertaken infurtherance of the tort of intentional infliction of emotionaldistress.Incredibly, however, the government has offered no evidencewhatsoever that the defendant or any of the alleged co-conspirators intentionally violated MySpace's Terms of Service.Neither the defendant nor any co-conspirator ever read or discussedMySpace's Terms of Service [partial RT Grills testimony, 32-33].And without having read MySpace's Terms of Service, it wasimpossible for the defendant to know of the exact Terms of Servicethat the defendant might have "intentionally" violated. Here, itis essential to realize that in order to violate a Terms of Serviceintentionally, a person must have actual knowledge of the
exactterm
and then make it her conscious object to violate it. A guess
Case 2:08-cr-00582-GW Document 96 Filed 11/23/2008 Page 2 of 5
 
 
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that conduct
might
violate a Term of Service is insufficient.Further, even knowledge that conduct violates a Term of Service isinsufficient. To violate the Terms of Service intentionally, itmust be the conscious object -- the actual goal of the conduct-- to violate them. See Model Penal Code §2.02 (distinguishingintentional conduct from mere knowing conduct). And it is simplelogic that you cannot have a conscious object to violate Terms thatyou do not even know with certainty exist.This is equally true under the conspiracy count. For thedefendant to be guilty of engaging in a conspiracy to intentionallyviolate Terms of Service, it must be the object ofthe conspiracy to violate the Terms of Service. But thegovernment doesn't even claim that the purpose of the conspiracywas to violate MySpace's Terms of Service. The government's theoryis that the goal of the conspiracy was to inflict emotionaldistress on MTM, but that is facially insufficient:To support a conspiracy charge, the goal of the conspiracy -- theaim that the co-conspirators attempted to achieve -- must be toviolate a specific MySpace Term of Service.Evidence that the defendant urged the deletion of the MySpaceaccount is completely irrelevant to the question before the Court.The government argues that Drew urged the deletion of the MySpaceaccount because she realized that she had done something wrong byviolating the Terms of Service. But this is simply bizarre.M.T.M. had committed suicide, and Drew logically feared that theaccount could connect Grills and her to the suicide. As Drewlearned, the connection to the suicide would trigger extraordinary
Case 2:08-cr-00582-GW Document 96 Filed 11/23/2008 Page 3 of 5

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