The 11th Circuit, Fricosu, and the 5th Amendment

Electronic Decryption Orders

As can be read in our previous posts (here and here), a case in Colorado has caught the attention of the nation in its implications on the 5th Amendment to the United States Constitution.

This case touches on the Constitution, fraud, sex offenses, electronic freedoms, and many other incredibly important topics. Yesterday, the 11th Circuit Court of Appeals took up the topic in a separate case (US v. Doe) and disagreed with their own lower court’s mandate to supply unencrypted data for the prosecution. In Doe, the defendant was ordered to produce an unencrypted version of his hard drive(s). Doe refused to comply. From In RE: GRAND JURY SUBPOENA DUCES TECUM DATED MARCH 25, 2011:

We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED.

Back Story

In Colorado, a defendant (Fricosu) may or may not have incriminating evidence on her laptop hard drive that was seized by authorities. The government asked for, and was granted, an order forcing Fricosu to produce a decrypted copy of that hard drive. Fricosu appealed, saying that doing so violates her 5th Amendment protections against self-incrimination. The appellate court refused to rule until the case was finished in the lower court.

The order forcing Fricosu to give over potentially incriminating evidence, and other similar orders from around the country, has troubling implications on the 5th Amendment in the new, digital world.

…and even further back…

In Fricosu, the presiding judge relied heavily upon the very limited precedents from around the country. Every one of these precedents were from child pornography cases where the courts didn’t seem to mind infringing on 5th Amendment protections, so long as sex offenders were the losers.

As with all history, equal protection exists for everybody, and infringing on one (hated) groups rights will eventually spill over onto the rest of the population.

Equal Protection

It may be hard to do, and sometimes even harder to stomach, but protecting the rights of the least popular citizens of any society is vital. This effort prevents [G]overnment from “taking a mile” for every inch of leeway given to it.

Kudos to the 11th Circuit for making this decision. Let us all hope that, regardless of coexisting immunity given to defendants, the 10th Circuit will follow suit and not allow its lower courts to be so cavalier with the 5th Amendment.

Update: Fricosu, The 10th Circuit, and the 5th Amendment

U.S. v. Fricosu

2/23/12 – As we previously discussed in this post, the government wants to force the defendant in the above-titled case to turn over an unencrypted hard drive that may or may not have incriminating evidence in it. The district judge granted the governments motion to force the defendant to supply the hard drive. This decision was appealed to the 10th Circuit Court of Appeals, who refused to rule.

Note: Demanding an actual password violates the 5th Amendment protections. The presiding judge in Colorado side-stepped this issue by not requiring Fricosu to give up her password but, instead, requiring her to produce the decrypted hard drive by using her password.

Because the appeals court chose to let the case run its course in the lower court before allowing the issue here to be raised on appeal, the ruling stands and Fricosu has until Monday to turn over the unencrypted version (read: a copy) of her laptop hard drive.

The Future

This case has frightening implications on the 5th Amendment to the U.S. Constitution. The process will get rocky. Fricosu can refuse to produce the hard drive1 and face contempt charges,2, or she can comply and face conviction if the incriminating material that the prosecution believes is on the hard drive is actually there.

If she complies and is convicted3, only then can she appeal her conviction to the 10th Circuit Court of Appeals to challenge the order to produce the hard drive that directly led to her conviction.

Updates will be posted as they come in!

  1. If she is able to. Her defense attorney says she may not have the capabilities to even comply with the order []
  2. Under rule 42 of the Federal Rules of Criminal Procedure []
  3. Where that conviction is predicated primarily upon the evidence from the unencrypted hard drive []

Notable Federal Sentencing, Crime and Defense News

The last few weeks has held a substantial amount of news concerning federal crime, sentencing, and defense news. Although there is not going to be an in-depth discussion on each topic here today, links are provided to source materials or detailed discussions and analyses.

U.S. Supreme Court

After a long break, the Supreme Court is back in action. Here is an overview of the recent decisions:

Howes v. Fields: The Sixth Circuit held that an inmate who is questions about events outside of prison are ‘in custody’ for Miranda purposes. The Supreme Court reverses the Circuit ruling, stating “The Sixth Circuit’s categorical rule—that imprisonment, questioning in private, and questioning about events in the outside worldcreate a custodial situation for Miranda purposes—is simply wrong.”

Kawashima v. Holder: The Ninth Circuit ruling that aiding and assisting in the preparation of a false tax return is an aggravated felony if the government’s revenue loss is greater than $10,000 is affirmed. “Convictions under 26 U. S. C. §§7206(1) and (2) in which the Government’s revenue loss exceeds $10,000 qualify as aggravated felonies pursuant to Clause (i).”

Wetzel v. Lambert: This case involves AEDPA questions concerning habeas relief for a defendant on death row in Pennsylvania. The Supreme Court, in a per curiam opinion, vacated the Third Circuit, and remanded. Explanation of habeas relief under AEDPA is quoted from the opinion below.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) precludes a federal court from granting a writ of habeas corpus to a state prisoner unless the state court’s adjudication of his claim “resulted in a decision that was contrary to, or involved an unreasonable application of, a clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U. S. C. 2254(d)(1).

United States Sentencing Commission

Last week, the USSC held two important and public hearings regarding sentencing policy in the federal justice system. One focused on broad sentencing options, entitled “Federal Sentencing Options after Booker” (written testimonies). From professor Berman over at Sentencing Law and Policy:

There was a rough consensus, at least coming from all the judges, prosecutors, defense attorneys and public policy groups (whose written testimony is still linked via this official agenda here), that the broader post-Booker sentencing structure is, as a matter of policy and practice, functioning reasonably well all things considered.

The second hearing addressed the sentencing guidelines concerning child pornography offenses (written testimonies). This area is functioning so poorly that defendants who possess visual depictions of child sexual abuse are often punished more severely than the perpetrators of the sex abuse that is depicted. In some cases, possessors of child pornography are sentenced to longer incarceration terms than rapists and murderers.1

Sentencing and Crime Articles

Here are a few of the many academic and opinion articles published on federal criminal law.

The High Cost of Prisons: Using Scarce Resources Wisely.

“The Gray Box”: An Investigation of Solitary Confinement in U.S. Prisons.

Round-Up

There is a lot of information to take in here, as there is always a lot of discussion about federal criminal practice and policy. Not many changes are made from Congress or even the Sentencing Commission, but the pendulum is swinging away from locking up everybody possible. Talk turns into action, it just seems to take decades to do so (see the obvious problems with the Cocaine v. Crack Cocaine sentence disparity).

Check back often for more on federal cases, sentencing policy, and discussions on how consultants can help you use this information to your advantage!

  1. Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines. Troy Stabenow (2009) at 38. “Child pornography is a pernicious evil. However, the hysteria associated with public events such as the Dateline “To Catch a Predator” series is not a sound basis for sentencing. Since 1991, the punishment for these offenses has been dramatically and irrationally increased, to the point where today rapists, murderers, and molesters receive lesser sentences than would a man who swaps a few, thirty-year old, pictures of child pornography that were produced before the defendant was even born.” []

US Sentencing Commission Holds Important Public Hearings

February U.S.S.C. Public Hearings

February is set to be a significant month in the world of the United States federal sentencing. The US Sentencing Commission has announced two public hearings regarding big sentencing issues involving federal criminal justice.

The first hearing, announced Wednesday, is all about federal Child Pornography sentencing. A huge public reaction has occurred because many federal Child Porn possessors are getting much larger sentences than the offenders who actually create  that pornography and sexually assault the pictured victims.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of penalties for child pornography offenses in federal sentencing.

The second hearing, also announced Wednesday, regards sentencing in the post-Booker world.

The purpose of the public hearing is for the Commission to gather testimony from invited witnesses on federal sentencing options pursuant to United States v. Booker.

The outcome of these hearing could be effective policies that alter sentences both in the future and retroactively. These decisions are made based on these hearings. Although the hearings themselves are public, the general public is not allowed to comment and testify. Only a handful of invites were sent out for each hearing.

Check back soon for information on the outcomes of these hearings.