The Suicide of a Federal Criminal Defendant

Silicon Valley and the DOJ Collide in Tragedy

Below is the story of PACER, Aaron Swartz, and a brilliant life cut far too short.

PACER

For years I’ve been working with, and silently cursing, PACER. This system, which stands for Public Access to Court Electronic Records, is an online system built and maintained by the federal government to give its citizens electronic access to court records.

As it usually goes, the government collects a fee for this services. Recently, although the system was already extremely profitable, they upped the cost per page by 25%1. Adding insult to pocket-book-injury is that this charge wasn’t levied because the old system was updated. We now just pay more for the same antiquated system that’s always been there.

Aaron Swartz

Activist. Programmer. Child Prodigy. Federal Criminal Defendant.

Aaron made a bigger impact on the internet by age 14 than many talented programmers will ever accomplish.2

As a programmer, he was a child prodigy. As an activist, he was fearless. If you’re reading this blog, on this website, chances are you’re probably very familiar with how relentless and intimidating the federal government can be to tangle with. Aaron saw the PACER system (see above) and decided to do something about it.

Instead of paying for the same pages over and over again, he took a piece of code called RECAP and ran with it. In the words of somebody more knowledgeable than me on Aaron, Cory Doctorow wrote:

At one point, he single-handedly liberated 20 percent of US law. PACER, the system that gives Americans access to their own (public domain) case-law, charged a fee for each such access. After activists built RECAP (which allowed its users to put any case law they paid for into a free/public repository), Aaron spent a small fortune fetching a titanic amount of data and putting it into the public domain. The feds hated this. They smeared him, the FBI investigated him, and for a while, it looked like he’d be on the pointy end of some bad legal stuff, but he escaped it all, and emerged triumphant.

In very basic terms, he took these documents which are in the public domain3 and prevented the federal government from getting paid on them. Hence, he pissed off people that don’t normally get messed with. He faced legal trouble, but came out of it clean.

After this, Aaron was very busy with public interest activism. At one point he decided that some scholarly and important documents4 hosted by JSTOR needed to be liberated from their server. So he planted a laptop in an MIT closet, grabbed a few million articles, and then retrieved the laptop.

Enter the Government

Aaron’s actions were probably nothing new to the folks around MIT and Harvard. However, his actions beforehand didn’t help his reputation with the federal government, and the US Attorney’s office didn’t hold back when bringing charges. As a federal criminal defendant, Aaron was looking at serious jail time, or so he was threatened.

From Tim Cushing of TechDirt:

Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for “computer activity the US government doesn’t like.”

Swartz had accessed MIT’s computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he “stole” several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it’s pretty tough to square his massive downloading with any idea of “theft.

Much more has been written on this case. Read about what others had to say on prosecutor bullying in this case , when the law is worse that then crime, and how his actions turned affected one member of the tech community.

A Sad Ending

Despite 18 months of negotiation and legal posturing, it seemed as those Aaron would spend the rest of his life labeled as a felon. This is a label a lot of readers of this blog share and know the consequences of. To avoid this, a brilliant mind, prodigy, genius, and public activist killed himself.

I never met Aaron, but his work resonated through the word of tech, all the way to this lowly federal criminal consultant writing for this blog. His work making public records actually public and free reached even this far, and that says something profound.

  1. from $0.08 USD per page to $0.10 USD []
  2. Namely, he wrote the specs for RSS feeds that we all use in one form or another these days. []
  3. http://en.wikipedia.org/wiki/Public_domain []
  4. research papers, journal articles, thesis papers, etc. []

9th Circuit Restricts Computer Fraud Prosecutions

As reported by The Recorder, the 9th Circuit Court of Appeals has done much to narrow the scope of the Computer Fraud and Abuse Act. In their article about this circuit decision, the Recorder reports that you cannot be criminally prosecuted for checking out Facebook or football scores at work.

“We shouldn’t have to live at the mercy of our local prosecutor”

Below is an excerpt from the original article at law.com:

Don’t worry: it’s not illegal to read this article at work.

In a highly anticipated test of the Computer Fraud and Abuse Act, the U.S. Court of Appeals for the Ninth Circuit construed the law narrowly Tuesday, saying prosecutors can’t use it to go after someone who checks sports scores from a work computer or fibs on Facebook. The 1984 law is an anti-hacking statute, not a tool to make federal criminals of anyone who violates employer computer policies or a website’s terms of service, the en banc panel said in a 9-2 opinion in U.S. v. Nosal, 10-10038.

“The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer,” Chief Judge Alex Kozinski wrote for the majority. “This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.”

In splitting from other circuits and reversing the panel decision, the court said the plain language of the statute prohibiting someone from “exceeding authorized access” to a computer does not extend to violations of use restrictions. The majority said there are other laws the government can use to prosecute someone who steals confidential information, and that a narrow interpretation of the CFAA is necessary because “we shouldn’t have to live at the mercy of our local prosecutor.”

The ruling affirms San Francisco U.S. District Judge Marilyn Hall Patel, who junked five counts in the government’s case against David Nosal. He is the former employee of an executive search firm accused of having colleagues access a confidential database to get information for his new competing business. “Because Nosal’s accomplices had permission to access the company database and obtain the information contained within, the government’s charges fail to meet the element of ‘without authorization, or exceeds authorized access,'” Kozinski wrote.

The court illustrated its point with a series of alarmist scenarios: Under the government’s view of the law, the “short and homely” person’s claim on Craigslist to be tall, dark and handsome could earn the poster a “handsome orange jumpsuit.” Vast numbers of teens who used Google could have been deemed “juvenile delinquents” since until last month the company’s use agreement technically barred minors from using its services.

For the government, the case was not about white lies and people goofing off at work. . Nosal, they argue, was up to no good, and the statute requires an “intent to defraud.” The dissenting judges make that point.

“This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values,” Judge Barry Silverman wrote, with Judge Richard Tallman joining. “It has everything to do with stealing an employer’s valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants’ employment contracts.”

Prosecutors have taken an aggressive posture in this case, appealing even when many criminal counts remained intact at the trial level and bringing in a lawyer from Main Justice, Jennifer Ellickson, to argue. Nosal’s appellate counsel Dennis Riordan said in light of that, he expects there to be a push inside the department to file cert. However, he said, the Solicitor General’s office, which makes the call, may think twice about pursuing this particular CFAA case, considering Kozinski’s “very, very powerful and well reasoned opinion.”

It is difficult to imagine why the dissenting opinion here did not see the ‘slippery slope’ of unintended consequences if the en banc decision of the Ninth Circuit were to have gone the other way.

It reminds me of the Supreme Court’s decision in Gonzales v. Raich which didn’t go as well as this case. In Raich, the Supreme Court decided that marijuana grown for legal, personal use inside a California residence could be federally prosecuted as interstate commerce. This may be confusing to the non-lawyer because the represented facts of the case were neither interstate nor commerce.

I am encouraged when I see appellate decisions that actually curtail federal prosecuting authority, rather than expanding them. Kudos to the 9th!

Good Advise for those Entering Federal Prison

In an article posted Thursday by former Missouri state senator Jeff Smith, a set of tips for entering federal prison were laid out.

The article was written to former Illinois Governor Rod Blagojavich on his impending report to federal prison. These tips are seem very remedial to those that have been inside federal prison, they don’t really need saying. However, for those who have never experienced it themselves, the tips are spot-on.

Below are excerpts from the original article from the Chicago Tribune.

After spending a year in federal prison on an obstruction of justice charge stemming from a 2004 congressional campaign violation, I have a few tips for former Illinois Gov. Rod Blagojevich as he heads for prison.

1. As your grandma probably taught you, God gave you two ears, two eyes and one mouth — use them in proportion.

• When you get to prison, listen, watch and learn. You’ll have a hundred questions on your first day and in one month you will know the answer to 90 of them without having to ask and risk looking stupid.

• Don’t ever ask anybody about their crime. If they want to tell you what they did, fine. But you won’t know if they’re telling the truth. And if you ask and strike a nerve with someone, the result may not be pretty.

• Don’t talk about how you got railroaded. So did everyone else.

• Don’t ask anything about anyone’s family; it will be a sore subject with many, especially those who have not seen or heard from their children or ex-wives in years.

• Don’t ever talk about how much time you have. Someone else has more.

2. Embrace your background, but don’t try to be a politician.

• The prison guards and administration will probably resent your presence, as it will mean added scrutiny on prison operations. Your charm will not work on them, so don’t try it. Instead, be as deferential as possible and try to blend in.

• You will have a nickname. It will probably be “Governor.” Accept that, but do so with deep humility.

• As a politician you were known for your gregariousness. But prison isn’t the Loop; not everyone wants to shake your hand. In fact, because of a collective obsession with hygiene and a fear of illness, no one in prison shakes hands — they bump fists. That doesn’t mean you should stroll down the compound fist-bumping dudes on your first day. As a hoops announcer might advise a star player in a big game, don’t press too hard; let the game come to you.

3. Get in the best shape of your life.

• Unlike most people, you are coming to prison in great shape. But you can always be in better shape. Set personal goals — maybe you want to run a marathon in prison; maybe you want to bench press 300 pounds. Working out every day will help pass the time, keep your endorphins pumping and keep you in a better frame of mind.

• Use your knowledge of running to help others lose weight. Inmates can control almost nothing, and since their body is one of the few things they can change, most work assiduously to improve themselves. Going running with others and helping them get in shape may be an effective way to build alliances.

• Play sports, but if your taste runs to contact sports such as basketball, be careful. Some people who have it out for you may exploit the opportunity to try to hurt you on the athletic field and not get in trouble for it.

4. Correspond with anyone who writes you.

5. Forgive your enemies.

6. Don’t complain about how bad your prison job is, and don’t brag about how good it is.

• Try to get a job working in the rec center or as a warehouse clerk, two of the most pleasant jobs in prison. But if you don’t get one, don’t complain about it. Just as is the case in any other environment, no one likes complainers. But in prison, people really don’t like them, because it’s a given that everyone is miserable.

7. Learn something new.

• Read all the books you wanted to read, but never had time. Then read all the ones you should have read, but didn’t want to.

• When the novelty wears off and the people who approach you are doing more than rubbernecking, don’t discount the possibility of making lifelong friends. You will meet some of the most fascinating people you have ever met, from all walks of life. Listen to their stories, and learn from them.

8. Use your unique knowledge and skills to help other inmates.

• Use your legal background to help prisoners who are bringing appeals pro se (representing themselves), but do so quietly so that you aren’t swamped with requests.

9. Don’t snitch, under any circumstances.

• The only people in prison who have it harder than child molesters are snitches. You need to learn how to see things (weapons, illegal drugs, people making hooch, pornography, etc) without seeing them; that is, learn to look away before anyone has seen you see the contraband.

• Stay away from snitches, and in general, watch the company you keep: in prison, you are your car (car = the people you “ride” with).

• If you committed other crimes for which you were not prosecuted, or are plotting any, don’t discuss them. As I’m sure you are now aware, you never know who’s listening.

• Don’t be seen talking to the Cos (correctional officers). Just like you could be cordial to Republicans but not be best friends with them without arousing suspicion among Democrats, you cannot be “friends” with the guards. Sure, there may be gangs and racial/ethnic division among prisoners. But there are really only two teams: inmates versus the prison. When guards try to get you to regale them with stories, resist the impulse to be on stage again. Do not forget this rule.

10. Don’t break prison rules.

• This may seem contradictory. The last rule suggested that you should tolerate prison rule-breaking — and you should. But try not to violate rules yourself.

• Don’t gamble. If you lose, you’ll be in debt and you do not want to be compromised like that. If you win, someone is likely to be very angry and may figure out a way to get his money back — a way that might leave you unrecognizable.

• Don’t “hold” anything someone asks you to hold, even if it looks innocuous; it’s probably got contraband inside of it.

• If you need a hustle to survive (i.e., stealing and selling food from the kitchen, washing and ironing others’ clothes), try not to encroach on someone else’s hustle. Presumably, others will need the stamps (money) more than you. Competition can be fierce.

11. Don’t look for trouble.

• Don’t change the TV channel, especially if women’s track is on, or “Ice Loves Coco.” There is an inscrutable yet stringent seniority-based regime when it comes to TV watching, and your celebrity does not entitle you to alter it in any way.

• Don’t stare.

• There is generally no reason to make eye contact with people unless they say your name.

12 Don’t eat the Snickers.

• You’ll go through orientation. You will be shown a mandatory sexual assault prevention video featuring a guy warning you not to eat the Snickers bar that may be waiting for you on your bed in your cell. (The actor ate the one left under his pillow, unwittingly signaling the predator who left it for him that he was ready and willing.) All the guys watching the video will laugh. But take the video’s message to heart: Don’t accept sweets from anyone.

Good luck, Governor. One day at a time.

Although these tips may not be most applicable with higher security prisons (the writer was a very low security level), the advice still resonates and can be applied with reasonable liberalness.

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 []

In Colorado, Defendants Must do Prosecution’s Job

5th Amendment Under Fire in Fricosu Case

Ramona Fricosu, of Peyton, Colorado is accused of being a part of a mortgage scam. In the course of the investigation against her, search warrants were executed on May 14th of 2010. In that search, the FBI took a Toshiba Satellite M305 laptop.

Then came a problem. Investigators discovered that her laptop’s hard drive was encrypted very very well. Therefore, files that the investigators felt were incriminating1 and vital to the future prosecution were locked away. They concluded it would take a really long time to decrypt the entire drive.

Since this case is being prosecuted in America, all criminal prosecutions are required to be done so with full due process of law2, which includes the right to a speedy trial3. So the decade or more it would take for the prosecution (read: investigative bureau) to decrypt the files would necessarily violate Miss Fricosu’s rights and the charges would not endure.

So what is a judge to do? Option one is to realize that the laws are in place to protect the citizens of the United States against the overpowering force of an unbridled government4. He would therefore throw the case out if the investigation delayed trial longer than a certain period of time. Option two is to order the defendant to decrypt the laptop for investigators.

Last Monday, Judge Robert Blackburn, federal judge for the District of Colorado, chose the second option. In United States v. Fricuso, Judge Blackburn decided that it did not violate the Fricosu’s Fifth Amendment protection against self incrimination to order her to decrypt her laptop hard drive.

Through protests from the defense that this order violates a defendant’s rights, and even an amicus brief from the Electronic Frontier Foundation (EFF) in support of Miss Fricosu, Judge Blackburn decided what could be a dangerous legal precedent on Fifth Amendment rights in the digital age.

From that brief:

“The government makes an aggressive argument here that may have far-reaching consequences for all encryption users. Fricosu will be made a witness against herself if she is forced to supply information that will give prosecutors access to files they speculate will be helpful to their case but cannot identify with any specificity…”

Ruling

Blackburn ruled that the Fifth Amendment posed no barrier to his decryption order. The Fifth Amendment says that nobody may be “compelled in any criminal case to be a witness against himself,” which has become known as the right to avoid self-incrimination. (Read the entire 10-page opinion here)

“I find and conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,”

Fricosu has declined to decrypt a laptop encrypted with Symantec’s PGP Desktop. Defense counsel Phil Dubois, who once represented Phil Zimmermann, PGP’s creator, is now fighting in the federal courts over encryption again.

“I hope to get a stay of execution of this order so we can file an appeal to the 10th Circuit Court of Appeals … I think it’s a matter of national importance. It should not be treated as though it’s just another day in Fourth Amendment litigation.”
– Phil Dubois

Fricosu actually may not even be able to decrypt the laptop at all. “If that’s the case, then we’ll report that fact to the court, and the law is fairly clear that people cannot be punished for failure to do things they are unable to do,” said Dubois.

The U.S. Department of Justice argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passwords. To the U.S. Justice Department, the requested court order represents a simple extension of prosecutors’ long-standing ability to assemble information that could become evidence during a trial. Justice claims that:

“Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.”

Much of the discussion on this issue is about what analogy comes closest to this case. Prosecutors argue that PGP passphrases are like a defendant possessing a key to a safe filled with incriminating documents. That defendant can usually be legally compelled to hand over the key.

Case Law

There are no decisions from the United States Supreme Court on this specific topic, but a number of decisions around the country from lower courts informed Blackburn’s decision. Here is a brief look at decisions from Blackburn’s order:

  • United States v. Kirschner – Kirschner was indicted on receiving child pornography. Judge Borman of the Eastern District of Michigan granted the defendant’s Motion to Quash the government’s attempt to compel a password from Kirschner. From that order:

    “In the instant case, even if the government provides Defendant with immunity with regard to the act of producing the password to the grand jury, that does not suffice to protect Defendant’s invocation of his Fifth Amendment privilege in response to questioning that would require him to reveal his password.”

  • United States v. Boucher – Boucher was another child pornography case, this time from the District of Vermont, involving compelling a password from the defendant. In 2007, Magistrate Judge Jerome J. Niedermeier, ruled that such an action would violate Fifth Amendment protections:

    “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him. Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

    Later, in an abrupt reversal, U.S. District Judge William Sessions ruled that Boucher did not have a Fifth Amendment right to keep the files encrypted after prosecutors narrowed their request, saying they only wanted Boucher to decrypt the contents of his hard drive before the grand jury, by typing in his password in front of them.

    Boucher appealed to the Second Circuit, and the Appeals Court decided in favor of Boucher5.

  • Accord United States v. Gavegnano, 2009 WL 106370 (4th Cir. Jan. 16, 2009) – Where the “government independently proved that defendant was sole user and possessor of computer, defendant’s revelation of password not subject to suppression”

Conclusion of the Order

Blackburn granted the order in two ways. First, he invoked the All Writs Act6 which “enables the court to issues orders to effectuate an existing search warrant”7.

Second, in a move of legal semantics, Fricosu is not ordered to reveal her password to the government. That has been ruled to violate her Fifth Amendment protections against self-incrimination. Instead, the government only requested that she use her password to decrypt the hard drive in question and then hand the decrypted hard drive over to the government.

Order

THEREFORE, IT IS ORDERED as follows:
1. That the government’s Application Under the All Writs Act Requiring Defendant Fricosu To Assist in the Execution of Previously Issued Search Warrants [#111] filed May 6, 2011, is GRANTED:
2. That Ms. Fricosu’s Motion for Discovery – Seized Hard Drive [#101], filed April 27, 2011, is GRANTED;
3. That on or before February 6, 2012, the government SHALL PROVIDE counsel for defendant, Ramona Camelia Fricosu, with a copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W;
4. That on or before February 21, 2012, defendant, Ramona Camelia Fricosu, SHALL PROVIDE counsel for the government in this case with an unencrypted copy of the hard drive of the Toshiba Satellite M305 laptop computer, serial number 98158161W; and
5. That the government SHALL BE precluded from using Ms. Fricosu’s act of production of the unencrypted contents of the computer’s hard drive against her in any prosecution.

  1. Due to a recorded and ill-advised telephone conversation with Fricosu’s ex-husband who was incarcerated []
  2. See the 14th Amendment to the United States Constitution []
  3. See the 6th Amendment to the United States Constitution []
  4. Over-dramatization intended to illustrate reductio ad absurdum []
  5. Although no news was readily found on the Circuit ruling, the lawfirm of James Budreau, attorney for Boucher, says it did. This leaves the question on whether the move itself was quashed, or if the production of the password (not the production of an unencrypted drive, was ultimately decided against. []
  6. 28 U.S.C. §1651 []
  7. See United States v. New York Telephone Co., 434 U.S. 159, 172, 98 S.Ct. 364, 372, 54 L.Ed.2d 376 (1977) (“This Court has repeatedly recognized the power of a federal court to issue such commands under the All Writs Act as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained.”); see also In re Application of United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, – F.Supp.2d – , 2011 WL 3424470 at *44 (D. Md. Aug. 3, 2011) (citing cases in which All Writs Act used to effectuate existing search or arrest warrant). []

November Round-Up

From Crack Cocaine Sentence Reductions to Early Termination of Supervised Release

November has been a big month in the world of federal corrections. Due to all the recent events, this will be a lengthy post on all matters federal-criminal.

New Retroactive Crack Law

The United States Sentencing Commission’s 2011 Amendments to their Guidelines Manual were enacted on November 1st. In these amendments, the Sentencing Commission made the Fair Sentencing Act of 2010 retroactive in sentence reductions.

Inmates may now petition their sentencing courts to reduce their Crack Cocaine sentences if sentenced before August 3, 2010. There are too many details about this to effectively discuss in this singular article, but here are the highlights:

  1. Sentences must be for 21 U.S.C. §841 or §846
    • §841 (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
    • §846 Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
  2. Sentencing must be issued under the drug quantity table of the Guidelines Manual
  3. In most Circuit Courts, commission of stated crime must have occurred after August 3, 2010 instead of just the sentencing occurring after this date.
    Exceptions are discussed in this prior post.

Federal Probation Early Termination (Supervised Release Too!)

Judges are now being told to cut people loose from federal supervised release and probation. Another amendment to the USSC Guidelines Manual specifically tells federal judges to consider early termination for anybody who is in their final phase of supervision.

In basic terms, if a supervisee is done with treatment, community service, or any other requirement of probation that has an expiration, that person is eligible for early release. If all that is left on supervision is simply monitoring for violations, you have a good chance of getting free. More on this subject on our Federal Probation Termination page.

Supreme Court Round-Up

The United States Supreme Court is collecting cases to hear on November 22, 2011 regarding application of Fair Sentencing Act reductions to “pipeline” cases (see exceptions, above). Davis and Hill are two of the cases regarding this issue that the Supreme Court needs to decide on in order to rectify a Circuit split. The 1st, 3rd, and 11th Circuits apply FSA to all cases sentenced after 8/3/10. The 7th Circuit applies the reduction to cases where the actual crime was committed after that date. All other Circuits are currently mute on the subject.

Also on the docket is the issue of juveniles receiving Life Without Parole sentences. Originally discussed back in 2010 on Sentencing Law and Policy, the Supreme Court is now taking another look at the constitutionality of sentencing kids to die in prison.

Below we’ve summarized the rest of what the Supreme Court has done so far this year:

1. A unanimous AEDPA ruling for the state: “The first opinion of the Term is in Greene v. Fisher. Justice Scalia wrote the opinion for a unanimous Court, which held that for purposes of the Antiterrorism and Effective Death Penalty Act, ‘clearly established federal law’ is limited to the Supreme Court’s decisions ‘as of the time of the relevant state-court adjudication on the merits.’”

2. A hint during oral argument in US v. Jones (transcript here) that GPS tracking might require a warrant: “Midway through a federal government lawyer’s plea Tuesday for unrestricted power for police to use new GPS technology to track cars and trucks on public roads, Chief Justice John G. Roberts, Jr., sketched out just how the Court may well restrict the practice. Despite an unqualified prior statement by the Court that one moving about in public has absolutely no right to expect privacy, the Chief Justice said that such a right might exist, after all, and it could trump the fact that the movement was in public. If the Court can find a way to say just that, police almost certainly would have to get a warrant before using GPS to monitor where suspects go.”

3. A suggestion during oral argument in Smith v. Cain (transcript here) that SCOTUS that sometimes prosecutors should stop defending hinky convictions: “There may be many ways for a lawyer to realize that an argument before the Supreme Court is falling flat, but none can top this: a Justice asking if the counsel had ever considered simply forfeiting the case. That is what happened on Tuesday to Donna R. Andrieu, an assistant district attorney in New Orleans, as her argument lay all about her, in shambles.”

Federal Inmate-Related Bills In Congress

This isn’t specific to November, but many inmates and families of inmates are hungry for knowledge of what Congress will do next to give relief to federal inmates. Here’s a short list of bills currently proposed for this session:

  • H.R. 2316, the Fair Sentencing Clarification Act retroactively applies the sentence reductions included in last year’s Fair Sentencing Act (FSA). This means that inmates rendered ineligible for reductions because of preexisting mandatory minimum sentences would now benefit from FSA.((Read the 2014 version of the bill here)
  • H.R. 2242, Fairness in Cocaine Sentencing Act of 2011 eliminates any disparity between crack and powder cocaine sentences. Its not retroactive, but makes the ratio that FSA brought from 100:1 to 18:1, down to 1:1.
  • H.R. 2344, the Prisoner Incentive Act of 2011 rewrites the good time statute to make clear that a prisoner is eligible to earn up to 54 days of good time credit per year for each year of the prisoner’s sentence. Since 1988, the Bureau of Prisons (BOP) has interpreted the good time statute to award good time credit based on the time actually served by the prisoner, not the sentence imposed by the judge. As a result, prisoners only earn a maximum of 47 days of good time for each year to which they are sentenced, instead of the 54 days per year many believed Congress intended.
  • H.R. 223, the Federal Prison Bureau Nonviolent Offender Relief Act of 2011 directs the Bureau of Prisons to release individuals from prison who have served 50 percent or more of their sentence if that prisoner: (1) is 45 years of age or older; (2) has never been convicted of a crime of violence; and (3) has not engaged in any violation, involving violent conduct, of institutional disciplinary regulations. The bill is intended to reduce overcrowding in federal prisons and give those nonviolent offenders over the age of 45 a second chance.

For more information on bills currently in Congress, visit the FAMM page regarding the subject.

As the holidays approach, hope can either strengthen or wane. PCR Consultants wishes all the best to the people it serves: Defendants, Inmates, Released Offenders, and their families. For more information on any subject here, give us a call at (480) 382-9287.

US Sentencing Commission Posts 2011 Amendments

New 2011 Amendments from U.S.S.C.

With October upon us, and November first rapidly approaching, PCR Consultants is starting a yearly tradition of breaking down this year’s amendments to the United States Sentencing Guidelines as published by the US Sentencing Commission (U.S.S.C.). Each year, these amendments become active on the first day of November.

To find out how PCR Consultants can help you take advantage of these new amendments, contact us for a free consultation at (480) 382-9287.

Here is a breakdown of the Amendments, what changed, and how they may help or hurt federal defendants, inmates, and those on probation.

The Amendments

Fair Sentencing Act: The Commission re-submitted its changes to crack cocaine sentencing guidelines per the Fair Sentencing Act of 2010. On June 30, 2011 the Commission voted unanimously to make the guidelines changes retroactive. Read more on our Crack Cocaine Sentence Reductions page.

Supervised Release: Learn more about getting early release from federal probation or supervised release with the help of PCR Consultants on our Early Termination Page. This year, four changes were made to Supervised Release and federal Probation:

  1. Deportable Aliens: This change effectively eliminates Supervised Release for defendants who are not required it by law, and are likely to be deported after imprisonment;
  2. Lesser Terms of Supervised Release: The Commission lowered the minimum term of Supervised Release under §2D1.2 from three years to two years from Class A and B felonies, and from 2 years to one year for Class C and D felonies;
  3. Guidance on Imposing Supervised Release Terms: The Commission added criminal history and substance abuse to what the court should consider in determining whether to impose supervised release, and for how long;1
  4. Early Termination of Supervised Release: §5D1.2, has been amended with language which specifically encourages courts to consider early termination of supervised release “in appropriate cases.” An example provided is a substance abuser who successfully completes a treatment program, “thereby reducing the risk to the public from further crimes of the defendant.”

Illegal Reentry: The Commission reduced but didn’t eliminate, the enhancements based on stale convictions or convictions that do not receive criminal history points under chapter 4 of the guidelines. This amendment also provides an upward departure if the new enhancement “does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction.

Mitigating Role: This amendment changed the language of its notes to §3B1.2 (Mitigating Role) to encourage the courts to apply the adjustment therein. This amendment struck (1) from Application Note 3(c)2 and (2) from Application Note 43. This amendment encourages the court that it can, and should, give this adjustment when the only evidence of role rests upon circumstantial evidence and the defendant’s statement of his/her participation.

The US Sentencing Commission also changed the language of §1B1.3 (Relevant Conduct) to help clients who are charged with fraud crimes but benefited little from the overall fraud scheme.

Firearms: Guidelines §2K2.1 and §2M5.2 are changed for the worse. In §2K2.1, the Commission increased penalties for straw purchasers, added a 4-level enhancement (and floor of 18 points) when a defendant left or tried to leave the US while possessing any firearm or ammunition. There is, however, language for downward departure for straw purchasers who were motivated by an intimate or familiar relationship or by threats or fear to commit the offense, where no monetary benefit from the offense exists.

The changes to §2M5.2 raised penalties for cases involving small arms crossing the border, increasing the base offense level from 14 to 26 in cases involving more than two (changed from 10) non-fully automatic small arms.

Fraud: Responding to new health care legislation, §2B1.1 was amended in two ways. First, tiered enhancements for loss amounts of over $1 million were added. Second, a new rule for loss amounts in healthcare fraud cases was added, but is arguable.

Child Support: Defendants convicted of willful failure to pay court-ordered child support are no longer subject to a 2-level enhancement under §2B1.1(b)(8)(C).

Drug Disposal Act: This final amendment broadens the list of people who can be subject to an enhancement for abusing a position of trust or use of a special skill. This is ordinarily used in drug offenses.

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  1. Adding these to the statutory factors set forth in 18 U.S.C. §3583 []
  2. Stating that the court “is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted” []
  3. The statement: “It is intended that the downward adjustment for minimal participant will be used infrequently []

3rd Circuit Applies Lower Mandatory Minimum Terms to FSA Pipeline Cases

Pretrial Defendants

Many times a federal criminal defendant can sit on pretrial status for a long time. Sometimes this status can last years. In Crack Cocaine cases, this can create a problem at sentencing when district courts try to decide which rules to follow.

Who FSA Applies to (and Who it Doesn’t)

The Fair Sentencing Act of 2010 (FSA) was enacted on August 3, 2010. Those that are sentenced before the enactment of FSA, get sentenced using the old rules. Those that commit their offenses after the enactment of FSA get sentenced under the new rules.

These new rules lower the base-offense levels of many crack cocaine offenses, change the mandatory minimum sentences to greatly increase the quantities of “cocaine base” that trigger them, and eliminate the mandatory minimum altogether for simple possession of small quantities of crack cocaine.

FSA Pipeline Cases

But what about pretrial defendants who committed their crime before FSA was enacted (August 3, 2010), but are sentenced afterwards? These are called  “FSA Pipeline Cases” because the defendants in question were in the sentencing pipeline when FSA was enacted.

This is a question that has been asked and answered by four circuit courts. The First, Eleventh, and now Third Circuit (as of August 9, 2011) courts have said that the new rules apply to pipeline cases. The Seventh Circuit stands alone in ruling against applying the newer, fairer rules to pipeline cases.

Sentencing decisions in all other circuits will depend on representation. If you know somebody who was sentenced by any circuit other than the Seventh Circuit for crack cocaine charges, they may well be entitled to significant sentence reductions.

Contact us for a Free Consultation Today!

Call us at (480) 382-9287 for a free consultation to find out how we can help you and your incarcerated loved one get sentences reduced.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page.
Read More About Crack Cocaine Sentence Reductions
If you were sentenced under old law, see our main page about getting your sentence reduced.
Read about the Sentencing Commission’s decision to make FSA Retroactive.
Read the text of the Third Circuit’s recent decision to make FSA apply to pipeline cases.

As Criminal Laws Proliferate, More Are Ensnared

Mens Rea (Criminal Intent) Not Necessary

The title of this post is taken from a recent article detailing the American way of criminal justice, its ever-expanding number of criminal laws, and its diminishing need for criminal intent. Whereas a vast majority of crimes used to be under state and local laws, the federal criminal machine has slowly expanded its reach.

From the original article:

As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don’t necessarily need to show that the defendant had criminal intent.

These factors are contributing to some unusual applications of justice. Father-and-son arrowhead lovers can’t argue they made an innocent mistake. A lobster importer is convicted in the U.S. for violating a Honduran law that the Honduran government disavowed. A Pennsylvanian who injured her husband’s lover doesn’t face state criminal charges—instead, she faces federal charges tied to an international arms-control treaty.

The U.S. Constitution mentions three federal crimes by citizens: treason, piracy and counterfeiting. By the turn of the 20th century, the number of criminal statutes numbered in the dozens. Today, there are an estimated 4,500 crimes in federal statutes, according to a 2008 study by retired Louisiana State University law professor John Baker.

There are also thousands of regulations that carry criminal penalties. Some laws are so complex, scholars debate whether they represent one offense, or scores of offenses.

Counting them is impossible. The Justice Department spent two years trying in the 1980s, but produced only an estimate: 3,000 federal criminal offenses.

The American Bar Association tried in the late 1990s, but concluded only that the number was likely much higher than 3,000. The ABA’s report said “the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.”

A Justice spokeswoman said there was no quantifiable number. Criminal statutes are sprinkled throughout some 27,000 pages of the federal code.

If the professionals who practice federal prosecution and defense cannot count the number of federal criminal laws that exist, how are ordinary American’s supposed to know if their hobby is a crime? If this sound ridiculous, just read the story of Eddie Leroy Anderson of Craigmont, Idaho who was indicted, along with his son, for going arrowhead hunting near their favorite campground.

This trend is frightening to say the least. However, when confronted with this level of over-criminalization, it is no wonder why America incarcerates 743 citizens per 100,000. For comparison’s sake, Canada incarcerates 117, Sweden incarceration 78. Even China, with a population of 1.35 Billion people, has a total incarcerated population of 1.6 million (122 per 100,000) while the U.S. has 2.3 million.

To see total world rankings, visit the International Centre for Prison Studies.