That standard is proving difficult for judges to agree upon in a federal criminal appeals case in which a lower federal court issued an order requiring a man who pleaded guilty to a single count each of possession of child pornography and distribution to pay the victim $5,000.
]]> The defendant's attorney argued that the mandated amount was arbitrary and not based on any evidence provided by government prosecutors that connected his client to any specific losses alleged to have been suffered by the plaintiff. On appeal, the D.C. Circuit agreed with that reasoning and remanded the case back to the trial court, finding that the government had not in fact produced any evidence that linked the defendant to specific losses suffered by the plaintiff.The lower court then vacated the $5,000 amount and reduced it to zero.
The matter ultimately ended up with the D.C. Circuit a second time, with the government appealing the trial court's ruling and stating that the formula proposed by prosecutors was an equitable solution.
The appellate judges are now wrestling with the question of how best to calculate restitution. Finding an answer has proven to be difficult for courts, given, as one media account of the case has stated, that "it can be difficult to know the extent an individual defendant who viewed or possessed an [online] image was responsible for harming the victim."
One spokesperson for the U.S. Department of Justice told one of the appellate judges that the DOJ was planning on submitting recommended legislation to Congress on the matter.
Source: The BLT, "D.C. Circuit weighs child pornography restitution case," May 13, 2013
]]>Kirk says that a state and federal crackdown reminiscent of the late 1920s and early 1930s campaign that brought down famed gangster Al Capone is necessary to clean up Chicago's streets. Impliedly, the tactic can be used as a guideline to help fight against drug trafficking and related drug crimes in other cities and states.
]]> Although Kirk's tough stance and words have already resonated with many people, critical voices will certainly mass to point out the careful balancing act that would need to be followed regarding the senator's would-be assault on crime. As much as some people would simply like to see thousands of people rounded up and thrown in prison, following through on that tack would unquestionably result in the trampling of constitutional rights in many cases as well as the imprisonment of innocent persons along with the guilty.That seems flatly manifest from Kirk's statement that he would simply like to see the entire alleged population of one street gang -- reportedly about 18,000 people -- arrested and incarcerated. He says he would "like to see a mass pickup of them and put them all in the Thomson Correctional Facility."
Notwithstanding Kirk's views and political posturing, a number of persons from across the criminal justice system -- from defense attorneys and prosecutors to fair-minded police officers and judges -- would certainly remind him that the United States legal system posits a presumption of innocence until a party is proven guilty and provides safeguards in the process that allow for a fair playing field.
No truly fair individual would ever argue for the incarceration of any person without convincing proof of criminal conduct.
Source: Fox, "Kirk: Time for feds to take down Chicago street gangs, "Mike Flannery, May 9, 2013
]]>Critics of that result will readily note a number of instances in other courts across the country where dissimilar results issued. In an appellate ruling from California last year, for example, a judge's panel from the 9th Circuit Court of Appeals found that a worker could not be prosecuted under the CFAA for downloading a confidential source list, an act that violated company policy prohibiting use of work computers for purposes not connected to business. The court stated that workers across the country routinely use company computers for a variety of personal reasons and that prosecuting the man would be an act of selective enforcement.
]]> "[U]nder the broad interpretation of the CFAA," the court's opinion stated, "such minor dalliances would become federal crimes."And that is precisely what is the concern of a growing number of people who fear that the federal law is overly broad and being used to hand down excessively onerous sentences to defendants following conviction of relatively minor offenses.
"Courts are struggling to interpret the law," says one law school professor.
With some persons charged under the Act facing notably harsh sentences for simple misuse of data rather than trespassing-related offenses tied to hacking (prosecutors' demands for decades-long sentences are not uncommon), the U.S. Supreme Court will likely be called upon at some point to issue guidance on the statute.
Source: ABA Journal, "Hacker's hell: Many want to narrow the Computer Fraud and Abuse Act," Stephanie Francis Ward, May 1, 2013
]]>Senior United States District Judge Jack B. Weinstein's May 1 sentencing order considered "and rejected" a prison term for the now 22-year-old man, noting that probation was the optimal outcome in his case and that it provided him the best chance to succeed in therapy, at school and on the job and as a "law-abiding member of society."
]]> The case outcome and the judge's written rationale have been lauded by a number of commentators, with the matter also evidencing how diligent defense representation can help bring about sentencing mitigation that both greatly reduces a potential penalty and optimally promotes the best interests of an accused party.The original charge against the defendant was distribution of child pornography. Conviction on that charge came with a statutory mandatory term of imprisonment for a five-year minimum period of incarceration. Prosecutors subsequently amended the charge to simple possession, which removed the obligatory prison term.
In his memorandum, Judge Weinstein stated that long prison terms for "non-acting-out" adolescents ... have been strongly attacked as unsound." The defendant in the case before Weinstein admitted to possessing pornographic images from the Internet, but he was subsequently deemed by therapists as being treatable and in fact completed a therapy program. There was also no evidence indicating that he ever intended to produce or distribute pornographic material.
Judge Weinstein found the defendant to be "no current or future risk to any child or adult" and stated that a probationary term was in the best interests of all concerned.
Source: United States District Court, Eastern District of New York, "Sentencing Memorandum, Hearing and Order, "Judge Jack B. Weinstein, May 1, 2013
]]>A recent warrant request by the FBI in a case of suspected bank fraud sufficiently troubled a federal magistrate to the point where he ensured that his order denying the request was made public in a 13-page document excoriating the government.
]]> Judge Stephen Smith's warrant denial issued in a case involving a suspect's alleged attempt to make an illegal wire transfer of funds to an overseas account. The FBI wanted to conduct cyber surveillance on the individual through tapping into his computer.The problem: The government had no idea where the person was, didn't know which computer it might ultimately be tapping into and couldn't state whether other persons -- third parties having no connection to the case whatever -- might also be spied on in the process.
Essentially, noted the judge, the government simply wanted carte blanche to find the so-called "Target Computer" through its IP address and thereafter extract information from it. The government's warrant stated that the technology available to investigators would additionally allow for the activating of the computer's web camera.
The judge shot down the request, finding that it lacked specificity and could harm other parties, given the Target Computer might turn out to be publicly shared.
Privacy rights groups lauded the judge's action, with one advocate stating that, "As a general rule, we don't think law enforcement should be in the hacking business."
Source: Source: Ars Technica, "FBI denied permission to spyh on hacker through his webcam," Cyrus Farivar, April 24, 2013
]]>Take the case of juvenile crimes that result in minors being placed on sex-offender registries. Many persons who have closely studied such registries -- both advocates of them overall and critics -- note that some youthful offenders do indeed commit serious crimes that reasonably identify them as dangerous persons and likely to offend again. In some cases, there is little disagreement that a person might be likely to commit crime again and that the public is protected at least in part by a requirement that such person be placed on a registry.
]]> A number of persons and groups that have closely studied juvenile crime note, though, that youthful sex offenders as a group have been shown statistically to reoffend far less often than do adult offenders. The research group Human Rights Watch, for example, recently issued a report indicating that the recidivism rate among children committing sexual offenses is actually between four and 10 percent, a figure far below other offenders.That advocacy group says that the reality renders it highly unfair and even tragic in many instances to place a minor -- sometimes as young as 11 years old -- on a sex offender list that tracks him or her throughout life.
The report is titled Raised on the Register: The Irreparable Harm of Placing Children on Sex Offender Registries in the U.S.
Source: The Center for Public Integrity, "Report details lives ruined for children put on sex-offender registries," Susan Ferriss, May 1, 2013
]]>They say they got it right the second time, with a Mississippi man currently under arrest for sending ricin-laced letters to President Obama, a Mississippi senator and another public official.
What stands out for some commentators on the matter is the active role played by the first man's criminal defense attorney, who told reporters after a hearing last week that "not one single shred of evidence was found to indicate [her client] could have done this."
]]> Indeed, that is what investigators ultimately determined to be the case. Federal agents stated that following their arrest of the first man, who said he had never even heard of ricin, no physical evidence was found to indicate that he had either made or sent ricin through the mail. Their investigation eventually led to the second man, who may have attempted to steer the investigatory focus to the initially arrested party by setting him up.The first man, against whom all charges were dropped last week, termed the matter "a nightmare" for his family and stated that he "would never do anything to pose a threat" to American government officials.
His attorney acted forcefully throughout the matter in promoting his legal interests, arguing that the government lacked probable cause to hold her client. Following his release, she commended government investigators, saying that, "They went where the evidence led, realized it was a dead end, and went where true evidence was."
Source: ABC News, "FBI: Miss. man arrested in connection with poisonous letters," Alexis Shaw, April 27, 2013
]]>In 2007, a Jamaican citizen and legal immigrant was arrested by police in Georgia after they discovered marijuana in his car during a traffic stop. The amount was small -- 1.3 grams, described by United States Supreme Court Justice Sonia Sotomayor as "the equivalent of about two or three marijuana cigarettes."
]]> There was no evidence to indicate that the man was trying to sell the pot. Notwithstanding that, he was convicted of a felony under Georgia law.National immigration officials used that conviction to invoke a provision under the federal Immigration and Nationality Act providing that any noncitizen convicted of an aggravated felony can be deported from the United States.
There was just one problem with that reasoning and action, ruled the Supreme Court this past Tuesday: Possession of an unarguably small amount of marijuana does not constitute a felony under federal law, even if it does under a state enactment.
With Justice Sotomayor writing for a 7-2 majority, the Court ruled that the man could not be removed from the United States based on the state conviction and his act amounting to "the social sharing of a small amount of marijuana."
Sotomayor wrote that the Georgia conviction "failed to establish that the offense involved either remuneration or more than a small amount of marijuana."
Source: Thomson Reuters News & Insight, "Justices say marijuana possession not a deportable offense," Lawrence Hurley, April 23, 2013
]]>According to the Georgia Campaign for Access, Reform and Education (CARE), state law enforcement officials arrested as many as 40,000 persons on marijuana-related charges in the state in 2011. That advocacy groups says that the state's hard-line response strains prison resources, costs millions of unnecessary dollars and hurts rather than helps offenders, given its punitive thrust.
A growing number of people and advocacy organizations in other states are voicing similar views, the result being that material changes in marijuana laws have been made in a number of jurisdictions.
]]> Notably, the states of Washington and Colorado recently passed laws legalizing small amounts of marijuana for recreational use. A growing minority of states now have laws on their books providing for medical marijuana.And now, municipalities, too, are enacting legislation regarding marijuana possession that is less punitive than state law. A recent example is a change approved earlier this month by legislators in St. Louis, Missouri.
The Board of Aldermen in that city voted overwhelmingly in favor of giving police officers discretion to channel marijuana cases involving a "small amount" of pot to municipal court (what precisely constitutes a small amount has yet to defined) . That allowance will result in many instances in persons possessing pot being fined for a municipal offense rather than being criminally charged under state law.
The difference in outcome is significant. A municipal fine under the new ordinance will be between $100 and $500. Under state law, a first offender charged with a small amount of marijuana is criminally charged and can be sentenced to a year in jail and fined a much higher amount than that.
One alderman says that the new bill "gives fairness." Other supporters say that the change will enable police departments to more effectively devote resources to serious crime and save taxpayers money.
Source: St. Louis Post-Dispatch, "Reduction in marijuana penalties approved by St. Louis Board of Aldermen," Nicholas J.C. Pistor, April 16, 2013
]]>That answer, confirmed through multiple and diverse sources, is, sadly, the United States.
Many of those prisoners, both in the federal prison system and incarcerated in the various states, are first-time non-violent offenders serving time -- often extremely lengthy sentences imposed under sentencing guidelines -- following their conviction on drug charges such as marijuana possession or distribution.
]]> In fact, and as this blog has noted in prior posts, that particular prison group comprises about half the total federal prison population. Of the approximately 2.3 million prisoners in U.S. federal and state prisons, more than 500,000 were convicted on drug charges.That is the byproduct of America's so-called War on Drugs, a hard-line stance that now faces a vast swath of critics from across the country that decry it for its social and economic costs.
One such group is a broad coalition of about 175 media celebrities, musicians, civil rights advocates, clergy members, athletes, politicians and business moguls that just last week sent a letter to President Obama urging strong and immediate drug reforms.
The group stresses that the "lock them up" philosophy so long practiced across the country has yielded starkly adverse results and needs to be replaced with a stronger focus on intervention, rehabilitation and offenders' reintegration into society in meaningful ways. The costs of that, they say, are cheaper upfront than prison outlays and far less costly over the long term, as well.
"America is made safer if we break the cycle of mass incarceration," noted one signer of the letter, an author and scholar at Syracuse University.
Noted another signer, NAACP head Benjamin Todd Jealous: "[W]e know that drug treatment is seven times more effective than incarceration."
Source: Cannabis Culture, "Celebrities urge Obama forward on drug, sentencing reform," Phillip Smith, April 9, 2013
]]>
What the ACLU and other advocacy groups view with disdain and growing concern are laws like what they call Georgia's "charmingly named" Social Responsibility and Accountability Act passed last year. That law requires that applicants seeking help under the Temporary Assistance for Needy Families (TANF) program submit to drug testing even in the absence of probable cause in order to obtain benefits.
The ACLU states that the underlying premise of that requirement is that particularly needy people in the United States need to be singled out vis a vis other groups that receive government benefits. The requirement implies that the poor and needy are more susceptible of drug use and will use benefit money to buy marijuana, methamphetamine and other drugs, or perhaps use the money to engage in drug distribution or drug trafficking.
]]> ACLU attorneys find that reasoning to be specious and insulting. Their view was seconded in an 11th Circuit Court of Appeals ruling from 2011 that struck down a Florida law similar to Georgia's enactment. The judge writing in that decision stated that there is no evidence "that impoverished individuals are prone to drug use."Such state enactments perpetuate stereotypes, say critics, infringe on privacy interests and imply that the rights of the poor and unemployed "are worth less than those of the gainfully employed."
Moreover, they are enriching drug-testing firms, which have cropped up given such enactments and are lobbying legislators for ever-more testing.
All such laws need to be repealed, says the ACLU. Their advent manifests a "disturbing reality built on the back of American's poor."
Source: American Civil Liberties Union, "As the "drug testing dragnet" widens, the poor continue to be swept in," Jason Williamson and Rebecca McCray, April 10, 2013
]]>Andrew Auernheimer, AKA "the AT&T hacker, was taken to trial in New Jersey and ultimately convicted on charges of conspiracy to access a computer without authorization and fraud respecting personal information. He was sentenced to a 41-month prison term and a probationary term of three years, and also ordered to pay $73,000 in restitution to AT&T for remedial actions the company states it was mandated to take following his actions.
]]> Auernheimer's legal team says that the judgment sets bad precedent for what constitutes unauthorized access under the Computer Fraud and Abuse Act. What is uncontroverted is that Auernheimer obtained more than 100,000 email addresses of AT& users and made them public. However, the AT&T website he accessed to procure those addresses was not protected or behind any security firewall; rather, it was unprotected and available to any public person with a base level of computer knowledge and a willingness to invest a bit of time.Auernheimer's actions, while viewed as criminal by authorities, have been deemed as salutary by some commentators. They note that the divulging of information can essentially be seen as the performing of a public service, given that it will encourage AT&T and other companies to be more careful in the future with consumer information that they are currently overly cavalier in guarding.
Although Auernheimer never accessed any New Jersey-based AT&T websites, he was charged there because some of the email addresses accessed were from residents in that state.
Auernheimer's legal team believes that the matter should fall under federal law, given the similarity between states' laws regarding unauthorized access to computers and federal legislation on the same subject. Auernheimer was charged with a felony under New Jersey law. His defense team says that his offense is customarily deemed a misdemeanor under federal law.
Source: TechCrunch, "Andrew 'weev' Auernheimer obtains new lawyer, files appeal," Jordan Crook, March 22, 2013
]]>They were wrong, with a federal appellate court panel reminding them that it was egregious conduct committed by one of their employees that resulted in a reversal of the man's conviction.
]]> The material facts of the case are worth passing along to Georgia readers for a number of reasons, including their value as a cautionary tale denoting that misconduct by actors in the criminal justice system -- sometimes prosecutors, in this case a police officer -- occurs with regularity throughout the country.The suspect's home, car and person were searched pursuant to a warrant, with a conviction ultimately secured on charges of possession with intent to distribute cocaine and unlawful possession of a firearm.
There turned out to be a serious problem with virtually everything involved in the case. In the words of the federal circuit court opinion that vacated the conviction, the fundamental flaw was "an officer's deliberate lie that led to the warrant that led to the discovery of the evidence."
The discovery of that lie did not occur until a year following the suspect's sentencing, when it was revealed that the information supplied by the officer in the warrant request was falsely provided by an informant who the officer was paying. In fact, and as the officer conceded, the informant had no connection at all to the case.
Because of that lie, the court regarded the evidence as tainted, vacating the guilty pleas.
Source: Courthouse News Service, "Cop's lies cost government on appeal," Dan McCue, April 3, 2013
]]>Federal prosecutors sought a search warrant in 2008 in which they informed a magistrate that they were seeking to obtain information from the wireless carrier Verizon that would help them pinpoint the location of a suspect allegedly engaged in a number of white collar crime activities. The warrant was granted and the suspect found. He was charged in a 73-count indictment with scores of counts of wire fraud, mail fraud, identity theft and other criminal counts.
]]> What was subsequently discovered was that the government used what a recent motion to suppress evidence termed a "sophisticated, uniquely invasive technology that it never explained to the magistrate" to find the suspect.Namely, and following their securing of a warrant, investigators employed what is called a "stingray" device to pinpoint the suspect's location. That device is a high-tech and portable tool that simulates a cell-phone tower and can fit into a mobile truck.
Agents used it, states the motion, in a manner than indiscriminately sent signals into the homes, pockets, handbags and briefcases of thousands of third parties having nothing to do with the case. Defense attorneys and other friends of the court say that such liberal use -- especially without divulging the technology to the magistrate in the first place -- was an intrusive act of government overreaching and not supported by probable cause. The defense argues that all the evidence obtained against the suspect through use of the stingray is inadmissible.
Source: Courthouse News Service, "ID theft case uncovers new snooping gizmo," Jamie Ross, April 1, 2013
]]>Wisely, as it turns out, his attorney argued that the search violated the Fourth Amendment as an unreasonable search and seizure.
]]> The ultimate vindication for the man came just last week pursuant to a 5-4 ruling handed down by the U.S. Supreme Court after the case had meandered for years through various court levels.Initially, a Florida state trial judge agreed that the search constituted an impermissible intrusion into the home. Subsequently, a state appellate court reversed that decision. The Florida Supreme Court then waded into the fray, reversing the appeals decision and siding with the original trial court.
The U.S. Supreme Court upheld that decision in a somewhat unusual ruling in which both ardent conservative and liberal justices alike joined
Writing for the majority, Justice Scalia's opinion drew a strong protective line at the boundary of a home, which in the Court's view includes the immediately surrounding area, known as curtilage.
Scalia was succinct in stating a directive for the police: Get a warrant. Without one, he said, officers have no right to "hang around on the lawn ... trawling for evidence."
Source: Associated Press, "Court: Drug dog sniff is unconstitutional search," Jesse J. Holland, March 26, 2013
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