Prosecutorial Misconduct

Today we have a couple of stories from around the country that will interest those searching for some sanity in American criminal justice.

To start, we have a story from the Federal Criminal Appeals Blog. It turns out that the government believes riding in a car with drugs, even if a defendant had no idea drugs were present, is still a crime worth many years in federal prison. The story goes like this: a construction worker (Mr. Tavera) was riding to Tennessee to do a roofing job.

Prosecutor Hides Evidence of Innocence

Tavera’s driver had lots of construction equipment in the back of the truck, including a bucket of nails and a large quantity of methamphetamine below those nails.

The US Attorney for the case was told by the truck driver that Tavera had no idea the Meth was there, but forgot to mention that at Tavera’s trial which ended up netting him over 15 years in prison.

From the story:

AUSA Taylor never told Mr. Tavera’s lawyer that Mr. Mendoza said Mr. Tavera isn’t guilty.

And, as a result, the jury never heard that the only other guy in the car told the prosecutor that Mr. Tavera didn’t know about the drugs.

As the Sixth Circuit said, “Mendoza’s statements to Taylor were plainly exculpatory.”

The Supreme Court has said that the government has to hand over all information that is exculpatory and that if it fails to do that, the prosecution is fundamentally unfair.

Yet, despite that the law is crystal clear on this, the Sixth Circuit notes that “nondisclosure of Brady1 material is still a perennial problem, as multiple scholarly accounts attest.”

The prosecutor, as the Sixth Circuit explained, figured it was Tavera’s fault for not doing a good enough job on defense. However, US Supreme Court history is very explicit that it is the prosecutors job to be forthcoming with any such evidence to ensure a fair trial.

With the deck already stacked so squarely in favor of the prosecution in federal cases, do they really need to act this poorly? The Sixth Circuit decided that this was so clearly unfair, that it ordered a new trial.

How long will this new trial even last with this evidence on the record for a jury to see? My guess: not long.

  1. Any evidence of innocence possessed by the prosecution, known as exculpatory evidence, is required to be turned over to the defense before trial. Brady material refers to evidence of innocence, from Brady v. Maryland, 373 U.S. 83 (1963) []

Durbin and Lee Introduce Smarter Sentencing Act

This press release from the office of Senator Dick Durbin (D-IL and then-assistant-majority-leader) gives some pointed details about the Smarter Sentencing Act. Its tagline  states the intent of the bill like this:

“[The] Bill Modernizes Drug Sentencing Policy, Focuses Resources on Violent Offenders and Public Safety Risks, Promotes Consistency with Fair Sentencing Act”

The press release gets started this way:

“With federal prison populations skyrocketing and nearly half of the nation’s federal inmates serving sentences for drug offenses, Assistant Majority Leader Dick Durbin (D-IL), Senator Mike Lee (R-UT) have introduced the Smarter Sentencing Act, to modernize our drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses. Making these incremental and targeted changes could save taxpayers billions in the first years of enactment.

“Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison population,” Durbin said. “Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions.”

It seems this bill is a sort of reboot of another sentence reform bill introduced by Senators Patrick Leahy and Rand Paul, which would give sentencing judges discretion on imposing mandatory minimums.

It is currently unclear if these bills will be competing or complimentary (symbiotic, so to speak) with/to each other. The good news, if it can be called that, is that lawmakers are seeing that balooning prison populations which consist of many non-violent crimes is getting noticed as a prime place to reduce budgetary spending.

June Roundup

The end of May was not a good one for anybody sitting at the defense table in Federal (and even State) courtrooms. This post is a quick look at the decisions that make defendant’s lives harder.

Maryland v. King

This case is all about 4th Amendment rights, and what constitutes too much invasion of personal liberties (and one’s own body) without a judge’s authorization. In short, can police take a DNA sample of citizens suspected of felony crimes?

In recent years, law enforcement and prison bureaus have taken DNA samples from inmates who are convicted of felonies and certain misdemeanors. These samples get loaded into local and national databases to be compared to DNA samples from unsolved crimes.1

In Maryland, a law was passed which allowed law enforcement to take DNA samples of citizens who were arrested of crimes, but not yet convicted. All without a judicial warrant for this “search” of the body. An old case was solved using DNA, and a conviction for a rape in 2003 was achieved through this process. Defendant King appealed, saying that DNA collection from people not yet convicted of any crime violates 4th Amendment Protections against unreasonable search and seizure.

The United States Supreme Court, in this recent and sharply divided decision, said that these DNA collections are not protected by the 4th Amendment and do not need a judges signature for those arrested for certain crimes.

Some Good News

Managers and leaders are taught in training courses that, in order to communicate dismay, such news must be presented in between positive notes. While there aren’t enough good cases to bookend the bad, there was one decision from the 6th Circuit that bodes exceptionally well in the Fair Sentencing Act (FSA) arena.

The FSA 2010 brought down the sentencing disparity in federal courts between powder and crack cocaine. In the pre-FSA days, there was a disparity between sentences of 100:1. This meant that 2.2 pounds of distributed powder cocaine carried the same sentence as only 10 grams of crack cocaine. FSA 2010 brought that ration down to a mere 18:1. These drugs are not treated equally yet, and it still punishes poor urban defendants disproportionately, but its a start.

Later on, the US Sentencing Commission decided unanimously to apply these reductions retroactively. This retroactive ruling, however, did nothing for those sentenced to mandatory minimum sentences before FSA 2010 became active. In US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013), the 6th Circuit decided in a split decision that it would be the UN-Fair Sentencing Act of 2010 if it did not apply retroactively to defendants who were sentenced before the enactment of the law.

This decision is sure to be reviewed by the entire panel of 6th Circuit judges en banc and may well not make it through that review, but its good news for incarcerated crack cocaine defendants in the 6th Circuit until then.

Brady Rules of Evidence

Prosecutors want convictions. Defense council wants the opposite. However, in the American justice system, the prosecutor holds almost all of the cards. The landmark US Supreme Court decision in Brady v. Maryland, 373 U.S. 83 (1963) the interest of justice was put before simple conviction numbers.

This opinion editorial from the NY Time on May 18th begins by describing Brady this way:

Fifty years ago, in the landmark case Brady v. Maryland, the Supreme Court laid down a fundamental principle about the duty of prosecutors — to seek justice in fair trials, not merely to win convictions by any means. The court said that due process required prosecutors to disclose to criminal defendants any exculpatory evidence they asked for that was likely to affect a conviction or sentence.
It might seem obvious that prosecutors with any sense of fairness would inform a defendant’s lawyer of evidence that could be favorable to the defendant’s case. But in fact, this principle, known as the Brady rule, has been restricted by subsequent rulings of the court and has been severely weakened by a near complete lack of punishment for prosecutors who flout the rule. The court has also declined to require the disclosure of such evidence during negotiations in plea bargains, which account for about 95 percent of cases.

Read more about this complete lack of punishment for prosecutors who commit misconduct from their office in this lengthy Yale Law Journal post. Noting how the Brady decision above has been so thoroughly gutted since 1963, the Times article points out the Thompson case.2

The 2011 case of John Thompson is particularly instructive — as an example of atrocious prosecutorial misconduct and of the Supreme Court’s refusal to hold the prosecutor accountable. Mr. Thompson spent 14 years on death row for a murder he did not commit. He was exonerated when an investigator found that lawyers in the New Orleans district attorney’s office had kept secret more than a dozen pieces of evidence that cast doubt on Mr. Thompson’s guilt, even destroying some. Yet the Supreme Court’s conservative majority overturned a $14 million jury award to Mr. Thompson, ruling that the prosecutor’s office had not shown a pattern of “deliberate indifference” to constitutional rights. Outrageous breaches of due process rights in such cases show that the Brady rule — which seems essentially voluntary in some places — is simply insufficient to ensure justice.

To summarize, prosecutors must disclose all evidence which would be beneficial to the defendant, in order to secure fairness in the judicial system. Prosecutors are not supposed to withhold or suppress evidence in order to secure convictions simply for the sake of convictions. However, prosecutors are not required to exercise this mandate during 95% of federal cases because that many cases end up with plea deals. Further, even if a prosecutor plays unfairly, there are no consequences of note.

Many clients believe that the cards are stacked against them. If this isn’t objective evidence enough that they’re right, what is?
And last but not least…

Fricosu: A final Update

This is a story that we’ve followed through half-dozen-or-so posts (see here, here, here, and here to get started). The anti-climatic ending to this very important 5th Amendment case was reported in this related article over at Wired.com yesterday.

What could have been a huge case in the 5th Amendment fight against a judiciary that doesn’t understand technology fizzled when a co-defendant went all “5K” and gave authorities the password that Fricosu was supposed to supply.

  1. crimes of murder, rape and the like… []
  2. Connick v. Thompson, 09-571 (SCOTUS 2011) []

Jury Nullification in the Modern Era

One of the the many blogs and news outlets that inform PCR Consultants about what is going on in the world of federal criminal issues is The Federal Criminal Appeals Blog. This is a great source for good news, defendant wins, and circuit case law for whatever might interest a reader who is researching or going pro se in the federal system.1

Jury Nullification

A favorite topic amongst the pro se and community, and this consultant, is the idea of jury nullification. In essence, this is the idea that a jury may acquit a factually guilty defendant if it feels that the statute broken is a bad law or the available sentence(s) goes way overboard. This may be a slight oversimplification, but that’s the essence of the idea.

Take for instance teens that sext each other or document their private behavior.2 These two teens did just that, and were charged as adults for taking lewd pictures of minors (themselves). How can you be charged as an adult for making a decision while also being treated as a child in the same case under the same circumstances?!3

There are weird, strange, and wild stories from all around the country every day that create the same confusion. These rare and outlier cases are why jury nullification has been exercised throughout our nations history. However, this exercise has been eroded more recently because the government and judges just don’t like it. From Doug Linder:

Judicial acceptance of nullification began to wane, however, in the late 1800s. In 1895, in United States v Sparf, the U. S. Supreme Court voted 7 to 2 to uphold the conviction in a case in which the trial judge refused the defense attorney’s request to let the jury know of their nullification power.

Courts recently have been reluctant to encourage jury nullification, and in fact have taken several steps to prevent it. In most jurisdictions, judges instruct jurors that it is their duty to apply the law as it is given to them, whether they agree with the law or not. Only in a handful of states are jurors told that they have the power to judge both the facts and the law of the case. Most judges also will prohibit attorneys from using their closing arguments to directly appeal to jurors to nullify the law.

Recently, several courts have indicated that judges also have the right, when it is brought to their attention by other jurors, to remove (prior to a verdict, of course) from juries any juror who makes clear his or her intention to vote to nullify the law.4

Back to Current Events

The Federal Criminal Appeals Blog has documented to instances over the last quarter that have addressed this issue in modern day federal criminal trials. An excerpt from their May 1, 2013 post entitled “Did The First Circuit Encourage Jury Nullification?” discusses U.S. v. Costello and gets started this way:

We have too many federal criminal laws – more than 4,000. And, as frequent readers of this blog will note, there are times when the federal government prosecutes a person that is a close call – it may or may not be a crime.

For example, in United States v. Costello, the government prosecuted a woman for giving her boyfriend a ride from the bus station on the theory that this was “harboring” an illegal alien. (read my prior write-up on the case here).

In marginal cases like these, the defense normally argues that this is government overreaching. The government normally brushes aside this argument saying, in essence, “trust us.” “We,” the government continues, “have scarce resources and good judgment. We won’t prosecute anyone except for really bad people.”

Thankfully, Judge Posner wrote the opinion in Costello. Here’s an excerpt, highlighted by that article:

The government tells us not to worry: we judges can rely on prosecutors to avoid bringing cases at the outer margin of the government’s sweeping definition of “harboring.” But this case is at the outer margin. No doubt it was brought because the Justice Department suspects that the defendant was involved in her boyfriend’s drug dealings, but cannot prove it, so the Department reaches into its deep arsenal (the 4000-plus federal crimes) and finds a crime that she doubtless never heard of that it can pin on her. She was sentenced only to probation and to pay a fine but now has a felony record that will dog her for the rest of her life if she loses this appeal.

Five days later, another case prompted more discussion on this topic. The case of U.S. v. Courtney, a federal judge in New Mexico delves deep into the issue of jury nullification, agrees its important, then says he won’t allow the jury to be made aware of its possible use. Its a lengthy opinion, but any voracious readers out there are highly encouraged to give it a read.

You Didn’t Read it, Right?

The possibility of jury nullification is not allowed to be presented to federal juries. Because federal juries do not participate in the sentencing of defendants, possible sentences which flow from a guilty verdict cannot be given to them. Judges specifically instruct juries to disregard the possible ramifications of a guilty verdict and decide only on if a statute was broken. This flies in the face of the protections we should have5 against tyrannical laws.

Without the ability to nullify criminal cases by returning a verdict of “Not Guilty” for insane prosecutions (Aaron Swartz, anybody?), the ability of U.S. citizens to keep their government in check gets stripped even more than it already has been.

Is it any wonder why the few rights we have left to defend ourselves against a possible tyranny are defended so vigorously, and are so vigorously being attacked? I’m talking about YOU, second amendment. ((Noah Webster wrote: “Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.”

  1. IMPORTANT!: PCR Consultants neither advocates or wishes anybody engage the federal criminal justice system on their own unless that is their wish. References to all legal blogs and ideas are for informational purposes, and we take no responsibility if a litigant/defendant uses the information contained in any references to get themselves pimp-slapped out of a federal courtroom for any such tomfoolery []
  2. Presumably without their parent’s knowledge or consent []
  3. Quick point, its legal in Florida for these teens to engage in these behaviors, but not document them. []
  4. http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html []
  5. in codified and common law []

UPDATE – Fricosu and the 5th Amendment

The Issue

For the last year or so, there has been a debate raging that seems to defy common sense. Namely, the debate concerns the 5th Amendment’s protection against self-incrimination. We’ve all heard congressmen, mob bosses, and steroid-riddled professional athletes use these protections to the point where, “Pleading the Fifth,” is part of the American lexicon.

See one of my favorite examples below:

The Debate – Fricosu and the 5th Amendment

The case in question( discussed here, here, and here), involved a mortgage fraud case out of Colorado where incriminating files were contained in a laptop with encryption so good the investigators and prosecution had no chance of recovering them without violating the defendant’s right to a speedy trial.

Common sense, at least to this blogger, would say that forcing a defendant to decrypt his or her own hard drive for the prosecution violates 5th Amendment protections and is tantamount to doing the prosecutions job for them. Initially, the 10th Circuit begged off an appeal of the lower court order. This was, in theory, because they wanted to hear the case fully on appeal instead of ruling just on this specific order.

Common sense, however, gets lost in the details. The order by Judge Blackburn states that, although providing her password to the prosecution in order to enable them to decrypt her hard drive will violate her 5th Amendment protections, being forced to use her password to decrypt the hard drive and then turn the hard drive itself over to the prosecution is perfectly legal. This is based on a preponderance of the evidence standard, reached because the government has enough evidence to believe that the hard drive has incriminating files1

Well, the defense will do just that. The federal justice machine moves slowly, at times, and Miss Fricosu’s sentencing hearing (after a plea deal was reached) is set for August 8, 2013.2 Most plea agreements, including this one, now contain a waiver of appeal, a tactic brought to you originally by former federal prosecutor Bill Otis. This means that a defendant waives their ability to appeal. Fortunately, Miss Fricosu’s plea agreement adds an exception to the appeal waiver to bring up this issue at the 10th Circuit again after her case is finalized at the district level.

Ramifications and a Circuit Split

The idea that decrypting files for the government does not violate 5th Amendment privileges got its start with sex offense cases. It is easy to bend or even break constitutional protections against very distasteful defendants such as those charge with child pornography possession. The problem, however, becomes the extension of these constitutional ‘bends’ to the rest of the population.

This recent article from the folks over at ARS Techinca entitled “Fifth Amendment shields child porn suspect from decrypting hard drives” delves into the ramifications of these rulings moving forward, and how not all district judges agree with this ‘bend’. The article gets started this way:

A federal judge refused to compel a Wisconsin suspect to decrypt the contents of several hard drives because doing so would violate the man’s Fifth Amendment right against self-incrimination. Judge William E. Callahan’s Friday ruling ultimately labeled the issue a “close call.”

Courts have wrestled with how to apply the Fifth Amendment to encrypted hard drives for several years. According to past rulings, forcing a defendant to decrypt a hard drive isn’t necessarily self-incriminating, but forcing a defendant to decrypt a hard drive can amount to self-incrimination if the government can’t otherwise show that the defendant has the password for the drive. In that case, forced decryption amounts to a forced confession that the defendant owns the drive.

Adding to this mix is this opposite Eleventh Circuit ruling from the same time as the Fricosu issue was becoming national news. It seems as though this issue will need to be settled by the U.S. Supreme Court, but it could be years before Cert is filed and granted in one of these cases.

Keep checking in, as updates will come as more events unfold around the country in this important electronic privacy and self-incrimination issue.

  1. This, because Fricosu said as much during a phone call from jail, which are all recorded. Bloggers note: this muddies the water quite a bit. Once the government knows there’s evidence, it makes the “self-incriminating” piece to this issue almost null. They want access to the hard drive that they’re POSITIVE has incriminating files on it, by Fricosu’s own words. The issue, though, is if Fricosu can be forced to help when self-incrimination has already kinda happened. []
  2. Sentencing hearing was set by order on 4/16/13 []

Kebodeaux Discussion Preview on SCOTUSblog

A week before the arguments are heard by the United States Supreme Court, the folks at SCOTUSblog have this commentary on the case, and what it all means. Below are some notable excerpts of the article.

This is a narrow case. It involves a defendant who represents a relatively small and, with time, diminishing class of individuals (those with sex-offender convictions pre-SORNA). It involves a defendant who is subject to SORNA by virtue of his military conviction, and not his interstate travel. And it involves a challenge to SORNA’s penalty provision, and not its other provisions (including its registration provision, although it may be hard to separate the two here).

Moreover, the Fifth Circuit ruling is by its own terms quite narrow, striking SORNA only as it applies in these “specific and limited facts.” The government sought review on, and the parties argue, even narrower questions. And both parties offer potential ways for the Court to dodge the core constitutional question. The government argues that the Court could simply correct the Fifth Circuit’s erroneous premise that Kebodeaux was not under a continuing federal registration obligation pre-SORNA and remand for further proceedings. Kebodeaux, for his part, argues that his failure to register occurred before SORNA applied to him, and therefore that he could not be validly convicted for failing to register under SORNA. (He says that the Attorney General had not yet issued valid regulations specifying that SORNA applied to pre-SORNA offenders when he failed to register.)

In short, this is no broadside challenge to congressional authority to require sex-offender registration. Instead, it is a very narrow case. And we can expect the Court to address it that way.

Still, bigger issues are likely to emerge in the arguments. Thus, look for the Court to press the government for limits on congressional authority, and to ask the government about federal intrusion into areas of traditional state concern. In other words, some on the Court are likely to worry about whether the government’s theories lead to an expansive federal power that can encroach too far on the states.

On the other hand, look for the Court to ask Kebodeaux about the sweep of federal power under Comstock, especially when Kebodeaux came under federal authority because of his military service, and not because of his interstate travels. Look for the Court also to test Kebodeaux’s theory of federal control pre-SORNA, given the full sex-offender registration scheme under the Wetterling Act (including the federal penalty for failure to register, and also including the federal financial incentives for states to create their own registrations and other features of the Act). The Court could see SORNA’s application to Kebodeaux as only a modest additional exercise of federal authority, given these considerations.

Tapia and Supervised Release

Tapia on Prison Rehabilitation

In a 2011 decision by the U.S. Supreme Court, defendants were no longer allowed to be sentenced to longer terms of imprisonment for the purposes of rehabilitation (discussed in earlier posts here and here).

In a predictable move, prosecutors and some district court judges decided that this rule only applied to original sentences. More to the point, when a defendant violates federal supervised release and gets sentenced to prison for it, Tapia didn’t apply. Last week the Sixth Circuit clarified and, again, sided with the defendant.

In U.S v. Deen (opinion here) the Sixth Circuit a revocation sentence was sent back to district court for violating the Tapia decision. Here is the first paragraph of the opinion that deserves a full read:

In the mid-1880s, Victor Hugo is said to have written, “He who opens a school door, closes a prison.” Our national debate about the relationship between education and crime, both in regard to prevention and rehabilitation, has long raged. A part of it—the part that asks whether rehabilitation is a viable penological goal—has been at the heart of Congress’s shaping of the American prison system. A unanimous Supreme Court recently held that the Sentencing Reform Act does not permit a court to “impose or lengthen a prison sentence to enable an offender to complete a treatment program or otherwise to promote rehabilitation.” Tapia v. United States, 131 S. Ct. 2382, 2393 (2011). Tapia involved a defendant’s initial sentencing. This appeal gives us occasion to consider whether that prohibition applies when a court imposes or lengthens a prison term that follows the revocation of supervised release. We conclude that it does. As a result, we VACATE Defendant Michael Deen’s sentence and REMAND for resentencing.

Federal Supervised Release Conditions – Restrictions on Court Discretion

Federal Supervised Release Conditions

Federal supervision is oftentimes misunderstood. What conditions can a court impose and what conditions are too much? This post is intended to clear the fog a bit using a case from Kentucky. This interesting case was decided by the Sixth Circuit Court of Appeals earlier this year. In part, the appeals court threw out a lifetime ban on smart phones.

No iPhone for life? Not unless you have a really good reason!

When it comes to federal supervised release and probation, District Courts have broad discretion in the limitations they can place on defendants.

However, this discretion is not unlimited and sentencing judges must have a valid explanation for why each limitation is imposed. Legally speaking, conditions of supervised release are reviewed by appellate panels for abuse of discretion.1 A sentencing court’s discretion is limited by three standards. Each special condition must:

  1. “[be] reasonably related to the sentencing factors set forth in 18 U.S.C. §3553(a)”;
  2. “involves no greater deprivation of liberty than is reasonably necessary for the purposed set forth in § 3553(a)”; and
  3. “is consistent with any pertinent policy statements issued by the Sentencing Commission.”2

The 6th Circuit Sets Limits on District Courts

In United States v. Inman, the Sixth Circuit held that, even though Inman was a really bad guy, the district court judge went too far with special conditions and imposing a lifetime term of supervision. In plain English, each condition was a lifetime ban on something.

The district court judge set a number of conditions that no one asked for, or talked about at Mr. Inman’s sentencing hearing: he had to submit to mandatory drug testing; to notify the probation office if he is prescribed any medicine; to provide the probation office with all of his financial information; and he can never drink alcohol again, possess or use a device capable of creating pictures or video, or rent a storage facility or post office box.

On review, the appellate court reviewed for plain error. It had to determine if: the district court adequately stated in open court at the time of sentencing its rationale for mandating special conditions of supervised release and whether each condition of supervised release was reasonably related to the dual goals of probation, the rehabilitation of the defendant and the protection of the public.

The Kicker

Next comes the big test. Special supervised release conditions must:

“[I]nvolve[] no greater deprivation of liberty than is reasonably necessary to serve the goals of deterrence, protecting the public, and rehabilitating the defendant”3

What This All Means

In basic terms, these limitations mean that a district court judge cannot just impose whatever they please at a sentencing hearing in terms of special supervised release conditions. For a financial crime, requiring the defendant to turn over monthly financials may be imposed legally. However, imposing an alcohol ban on a defendant with no history of substance abuse usually cannot.

If you’d like PCR Consultants to take a look at your terms of supervision and help get rid of supervised release conditions that don’t meet these standards, please give us a call for a free consultation.

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  1. United States v. Heidebur, 417 F.3d 1002, 1007 (8th Cir. 2005) []
  2. United States v. Mark, 425 F.3d 505, 507 (8th Cir. 2005), citing 18 U.S.C. §3583; United States v. Boston, 494 F.3d 660, 667 (8th Cir. 2007). []
  3. 18 U.S.C. §3583(d)(1)-(2); United States v. Brogdon, 503 F.3d 555, 563 (6th Cir. 2007). Although this is a 6th Circuit case, most circuits have precedent that mirrors this standard. []

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!

Federal Probation Revocation Hearings

An interesting case out of the Fourth Circuit was brought to my attention by this post by the Federal Criminal Appeals Blog entitled “Just Because It’s A Supervised Release Hearing Doesn’t Mean There Are No Rules.”

As the title suggests, federal probation revocation hearings are far less formal than a criminal trial. In fact, the rules that govern these hearings appear in only one section of the Federal Rules of Criminal Procedure: Rule 32.1. Below is an excerpt from the article.

Anthony Doswell was having a bad run of luck.

He was on supervised release from the end of a federal sentence. Supervised release works a bit like probation for those who have been in prison – folks coming out of a federal prison have a period of years where they have to check in with a probation officer, be drug tested, and, if they mess up, sent back to prison.

One big way to mess up is to commit a new crime. The rub is that a person can be violated – and sent back to prison – for committing a new crime, not just for being convicted of committing a new crime.

So, it’s possible for a person on supervised release to be charged with a new crime, beat the charge, then be sent to prison anyway.

Anthony Doswell was in a spot like that. He was on supervised release and had been charged with having some marijuana on his person. He also tested positive for heroin and didn’t show up to mental health treatment, or to meet with his supervising probation officer.

At the hearing, his lawyer learned that Mr. Doswell had previously been charged with heroin distribution.

Mr. Doswell objected to a violation of his supervised release based on the heroin. The government went forward with the allegation, providing the district court with the charging documents for the state court heroin distribution charge, as well as the chemist’s report.

The government did not call any witnesses.

The district court found that Mr. Doswell had violated his supervised release by selling heroin. As the Fourth Circuit summarized it,

Without explanation, the district court concluded that, “notwithstanding the objection,” the drug analysis report was “sufficient to support the [heroin] violation alleged.” Accordingly, the court found Doswell guilty of the heroin violation set forth in Supplemental Notice, a violation that the court concluded, “in itself, [wa]s sufficient for . . . a mandatory revocation [of Doswell’s supervised release].” The court then sentenced Doswell to the statutory maximum, twenty-four months of imprisonment.

On appeal, the only issue the Fourth Circuit dealt with, in United States v. Doswell, was whether, under Federal Rule of Criminal Procedure 32.1(b)(2), Mr. Doswell had a right to have the witnesses against him testify.

The government argued that under a prior Fourth Circuit case, and the general principle that revocation hearings are less formal, it didn’t have to have a witness there.

Mr. Doswell, instead, suggested the court of appeals look at the language of Rule 32.1(b)(2), which says that at a revocation hearing, a person has an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear

Since the district court spent exactly no time balancing whether the interests of justice didn’t require the chemist to testify against Mr. Doswell, the Fourth Circuit reversed the finding of violation and remanded.

We don’t do many posts on revocation hearings here, but the issue is important to both the federal process and our clients. If you have any questions regarding revocation (and especially how to avoid them) please give us a call at (480) 382-9287.