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2005-261, STATE OF NH v. MICHAEL COHEN
intent to sell, copies of recordings made without the express written consent of Cohen was charged with seven misdemeanor counts of transferring, with
for sale. several hundred compact discs belonging to Cohen, which he had been offering Concord. In 2002, the State executed a search warrant at the store and seized The record supports the following. Cohen owns a record store in
property. We affirm. the Concord District Court (Cullen, J.) denying his motion for return of BRODERICK, C.J. The defendant, Michael Cohen, appeals an order from
John G. Vanacore, of Concord, by brief and orally, for the defendant.
attorney general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant to press. Errors may be reported by E-mail at the following address:
Opinion Issued: August 22, 2006 Argued: May 17, 2006
MICHAEL COHEN
page is: http://www.courts.state.nh.us/supreme. v.
THE STATE OF NEW HAMPSHIRE
editorial errors in order that corrections may be made before the opinion goes No. 2005-261 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Concord District Court Readers are requested to notify the Reporter, Supreme Court of New
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as State objected. That motion was denied, and this appeal followed.
court or justice, and in accordance with due process of law. destruction as the public interest requires, in the discretion of the justice orders, which may include forfeiture and either sale or
2 counterfeit.” The defendant then filed a motion to reconsider, to which the
any . . . property of evidential value, not constituting contraband.
the owner of the property, or shall be disposed of as the court or
were seized. It would be illegal to sell these items knowing that they are motion, stating, “The items in question were being offered for sale when they forfeiture of lessor’s property when used for illegal purposes by lessee); except for good cause shown, order returned to the rightful owners The Cohen makes similar concessions on appeal. The trial court denied Cohen’s Dobbins’s Distillery v. United States, 96 U.S. 395, 402 (1877) (upholding (upholding forfeiture of wife’s car when used by husband to solicit prostitute); forfeiture statutes. See Bennis v. Michigan, 516 U.S. 442, 453 (1996) Cohen concedes that an innocent party may lose his property under
unreasonable to the prejudice of his case. Id. party must demonstrate that the court’s ruling was clearly untenable or 379, 381 (2005). To show that the trial court’s decision is not sustainable, a otherwise coming into the hands of the police shall be returned to 595-A:6 for an unsustainable exercise of discretion. State v. Gero, 152 N.H. We review a trial court’s ruling on the disposition of property under RSA
additionally that there is no public interest that would require their forfeiture. the court . . . shall, upon notice to a defendant and hearing, and his store, he was selling those CDs again, it would be an entirely new offense.” Id. On appeal, Cohen argues that the compact discs are not contraband, and
rules state, in relevant part:
. . . All other property seized in execution of a search warrant or
Upon application by a prosecutor, defendant, or civil claimants, Cohen’s attorney stated, “In fact, we concede if the CDs ended up back up in
return of property seized for possible use at trial. RSA 595-A:6 (2001). These The legislature has established procedures governing the protection and
objected, arguing that the compact discs were contraband. During the hearing, Cohen then moved to have the compact discs returned to him. The State
permission of the owners or performers. Cohen knew or should have known that the tapes were created without the not to prosecute others. It appears that the State was unable to prove that convicted of any of the charges, as some were dismissed and the State chose their owners or performers. See RSA 352-A:2 (Supp. 2005). Cohen was never advantage or private financial gain. 17 U.S.C. § 506(a) (2000); 18 U.S.C.
works having a value of more than $1,000, or for purposes of commercial Similarly, Congress has made it a felony to willfully infringe copyrights either of musical composition, as well as many other works. RSA 352:1, :2 (1995).
3 without permission of the author, any uncopyrighted literary, dramatic or
contrary, the legislature has made it a misdemeanor to produce or publish,
of RSA 595-A:6. that such discs are per se contraband, and thus contraband for the purposes copyright laws is illegal under both State and federal statutes, we conclude facts of a particular case. § 2319 (2000 & Supp. III 2003). As the creation of compact discs in violation of purposes of RSA 595-A:6, however, as any of them may be applicable given the produce or possess.” We need not adopt any one of these definitions for
governs the illegal production and distribution of compact discs. To the unlawful to . . . possess.” considered contraband per se. RSA 352-A:2, II(b) is not the only statute that We begin by examining whether the compact discs at issue could be
contraband. definition, that contraband is generally “any property which is unlawful to it is used in committing an illegal act.” Id. Cohen proposes an alternative derivative contraband is “[p]roperty whose possession becomes unlawful when him. That the possession of such compact discs is not illegal under this “[p]roperty whose possession is unlawful regardless of how it is used”; dispositive as to whether these discs are contraband and should be returned to Law Dictionary further elaborates on this definition: contraband per se is However, we disagree with Cohen’s conclusion that such a determination is Black’s Law Dictionary 341 (8th ed. 2004). Black’s (unabridged ed. 2002). Contraband may also be defined as “[g]oods that are or treaty: forbidden.” Webster’s Third New International Dictionary 494 Contraband materials are those which are “prohibited or excluded by law guilty.”
constitute such contraband, or, in the alternative, that they may be derivative contraband pursuant to other statutes. Indeed, we conclude that they may particular statute does not mean that the discs themselves do not constitute
compact discs produced without the permission of the owners or performers. We agree that nothing in RSA 352-A:2, II(b) prohibits the possession of
anybody with regard to the one CD for which he was tried, [but] was not found case is distinguishable from others because “no crime was committed by its owner is not. The Palmyra, 25 U.S. at 14. Cohen argues, however, that his the notion that “[t]he thing is here primarily considered as the offender,” even if did not know it was used for privateering). This concept is, in part, rooted in Palmyra, 25 U.S. 1, 14 (1827) (upholding forfeiture of ship by owner where he different grounds than did the trial court, we nonetheless conclude that
federal statutes. Accordingly, although we reach our conclusion, in part, on
cases such as this. “contraband” under RSA 595-A:6, and are thus subject to a court’s disposal in possession of such items by anyone. RSA 352:1, :2 (enacted in 1895). works indicate a strong public policy against the production, distribution, and The State’s extensive and longstanding laws protecting authors’ and artists’ 4
seems to have based its order on RSA chapter 352-A rather than other State or
criminalized, we hold that such compact discs nonetheless constitute
infringement) (2000). Presumably, State statutes provide similar protections. works.
the compact discs “were being offered for sale when they were seized,” and thus We recognize that the trial court made its decision on the grounds that
derivative contraband. which another’s protected work was illegally copied — and, accordingly, may be possession of compact discs created in violation of these laws has been
rights to copyrighted works), 502-505 (civil remedies for copyright express intent in protecting authors’ rights in copyrighted and uncopyrighted criminal sanctions for copyright infringement. 17 U.S.C. §§ 106 (exclusive reproduction, adaptation, publication, performance, and display, irrespective of various federal felonies. injunctions to protect their interests by granting them the exclusive rights of Congress has also given copyright holders the ability to procure civil
may be the instrumentalities of the commission of a crime — the means by 352:1, :2; RSA 352-A:2, II(b) (1995 & Supp. 2005). Regardless of whether See U.S.C. tit. 17 (2000 & Supp. III 2003) (entitled “Copyrights”); RSA
be neither produced nor distributed thwarts Congress’ and the legislature’s possession of the same. Allowing the continued possession of items that can such compact discs under RSA 352-A:2, has not necessarily sanctioned whoever did so likely committed several hundred State misdemeanors, or possession. The legislature, having chosen not to criminalize the possession of Accordingly, even if Cohen himself did not produce these compact discs, criminal offense. 17 U.S.C. § 506(a); 18 U.S.C. § 2319; RSA 352:1, :2. Furthermore, unlawful possession does not necessarily mean criminal
transferred in violation of these State or federal laws. The discs themselves incorrect, assuming that the compact discs at issue were in fact created or § 2319. Thus, Cohen’s argument that “no crime was committed by anybody” is
See RSA 352:1, :2; 17 U.S.C. § 506(a); 18 U.S.C.
permission of the work’s author or owner for uncopyrighted works, is a The production of compact discs in violation of copyrights, and without the has used in the commission of a crime.” Bennis v. Michigan, 516 U.S. at 460. Derivative contraband “includes tools or instrumentalities that a wrongdoer contraband per se, they nonetheless constitute derivative contraband. However, even if we assume that illegally produced compact discs are not 5
copyright laws are
Cohen’s motion for return of property. discs are contraband, and the trial court was within its discretion to deny “contraband without the permission of the owners or performers. It further notes that 3 52-A:2, II(b) (Supp. 2005) prohibits the possession of compact discs produced conclusion that the compact discs at issue may constitute per se contraband. render possession of such works unlawful. Thus, I disagree with the majority’s how statutes prohibiting the production, publication, or sale of certain works
per se contraband. However, the majority does not explain
materials to reach the conclusion that compact discs created in violation of prohibiting the production, publication, or sale of copyright-infringing 341 (8th ed. 2004). The majority then cites State and Federal statutes possession is unlawful regardless of how it is used.” Black’s Law Dictionary
per se” is defined by Black’s Law Dictionary as “[p]roperty whose 595-A:6. either State or federal statutes regarding copyrights. Accordingly, the compact court here necessarily unsustainably exercised its discretion in applying RSA
DALIANIS, J.
, dissenting. The majority concedes that nothing in RSA
GALWAY, J., joined, dissented: DUGGAN and HICKS, JJ., concurred; DALIANIS, J., with whom
requires the same result. Affirmed.
the trial court’s finding as a determination that the compact discs violated added)). However, we cannot say that, given these considerations, the trial court also made a specific finding to this effect. We read these concessions and and does again on appeal, that the compact discs were counterfeit. The trial in fact produced in violation of State or federal law. Cohen conceded below, The only remaining issue, then, is whether Cohen’s compact discs were
Cf. id. at 386; RSA 595-A:6.
disposed of as contraband, we need not determine whether the public interest Because we determine that illegally produced compact discs may be
See Gero, 1 52 N.H. at 381.
used in the manufacture of such infringing copies or phonorecords” (emphasis infringing copies or phonorecords and all implements, devices, or equipment prescribed, order the forfeiture and destruction or other disposition of all court in its judgment of conviction shall, in addition to the penalty therein disposed of, even in the case of a conviction. Contra 17 U.S.C. § 506(b) (“the We do not decide whether a trial court is required to order these discs
with RSA 595-A:6, regardless of the guilt or innocence of the discs’ owner. illegally produced compact discs may be disposed of by a court in accordance conjecture, and we cannot suppose criminality where there is none proven. conclusion may have merit, on the record here it is nothing more than
6
State misdemeanors, or various federal felonies.” While the majority’s
predicated upon the
responsible for producing the compact discs “likely committed several hundred The majority credits the State’s position by noting that the party or parties manufacture and sale “would have” constituted a violation of RSA 352-A:2. counterfeit.” The statements of the defendant and the trial court are
sold or distributed to the defendant by a third party,” and that such court noting that sale of the discs “would be illegal . . . knowing that they are compact discs would constitute a “new offense,” and a statement by the trial
GALWAY, J., joins in the dissent.
dissent. any way that the seized property constitutes contraband. Thus, I respectfully not, in my view, sufficiently compensate for the State’s failure to establish in
assumption that the compact discs are counterfeit, and do
the State merely posits that the compact discs “were created and apparently that the seized property was used in the commission of any such act. Instead, It bases its conclusion upon the defendant’s concession that resale of the show that the defendant, or a third party, committed any crime or illegal act, or The majority concludes that the compact discs are, “in fact,” contraband.
record before us, constitute derivative contraband. The State has failed to I further disagree that the compact discs at issue in this case, on the