"Project Aims To Attract, Train Public Defenders," is by Karen Sloan of the National Law Journal. Here's the beginning: Being a public defender is a tough job. Being a public defender in the South — which has a reputation for...
More Public Defender News
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New Laws Mean Good News For Those Convicted Of Some Misdemeanors :: Charlotte North Carolina DWI DUI Criminal Attorney Lawyer
Attorney J. Bradley Smith answering the question: "What is the difference between a misdemeanor and a felony?"
A range of new laws went into effect earlier this month, some that stiffen penalties and others that actually reduce jail time for some offenses. The new laws, which were implemented on December 1st, are estimated to save the state over $2 million per year thanks to the reduction in police resources normally spent on jailing individuals and paying for court appointed attorneys.
In North Carolina, misdemeanors are classified as Class One, Class Two or Class Three, with three being the least serious offense. Under the newly implemented laws, many Class Two offenses will now be changed to Class Three offenses and will able to be dealt with by simply paying a fine. By paying the fine, offenders can avoid the prospect of jail time and will no longer need to use a court appointed attorney to handle the matter.
Examples of some misdemeanors that changed from Class Two to Class Three include obtaining property by worthless check, driving while license is revoked, failure to notify DMV of address change, applying too much tinting to a vehicle's windows or driving more than 15 miles per hour over the speed limit.
Beyond this reduction in severity, other misdemeanors have now been reduced to infractions. These include things like operating a vehicle with an expired license, failure to sign vehicle registration card and fishing without a license (yep, that used to be a misdemeanor crime).
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Poland asks Connecticut not to send murderer to death row
I just saw this intriguing domestic death penalty story from Connecticut with a notable international spin. The piece is headlined "Poland's president challenges state's death penalty," and here are excerpts: In what could spark an international incident, the president of...
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The College Students, the Digital Camera and Unlawful Surveillance
--> For reasons explained below, a jury convicted Michael Piznarski of four counts of unlawful surveillance in violation of New YorkPenal Law § 250.45 and two counts of coercion in the second degree in violation of New York Penal Law § 135.60, after which the judge who had the case sentenced him to “a prison term of 1 to 3 years on the unlawful surveillance conviction relating to victim A, concurrent nine-month sentences on the two coercion convictions, and three concurrent one-year sentences for the unlawful surveillance convictions relating to victim B.” People v. Piznarski, 2013 WL 6284001 (New York Supreme Court – Appellate Division 2013). You can read more about the facts, about Piznarski and about the charges in this case in the articles you can find here and here. The Appellate Division begins its opinion by noting that “[t]his case, apparently one of first impression, involves the application of New York's unlawful surveillance statute . . . to the prosecution of a defendant accused of video recording his sexual activities without the knowledge or consent of the other participants.” People v. Piznarski, supra. According to the court, this is how the prosecution arose: In the fall of 2009, [Piznarski] and victim A, both college students attending the same university, began dating. In March 2010, [Piznarski] used his digital camera to secretly record victim A performing oral sex on him while they were in the bedroom of his apartment. [He] and victim A broke up in August 2010 and, although their relationship became strained, they continued to have contact with one another following their return to school that fall.In September 2010, [Piznarski] informed victim A -- through a series of Facebook messages -- that he possessed the March video; he described the video's content and insinuated that he was going to upload it to a website and identify victim A by name. According to victim A, she was distraught over the messages and asked [him] to delete the video. Thereafter, on December 6, 2010, victim A went to [Piznarski’s] apartment to discuss their relationship. Victim A claimed [he] became irate, started berating her and ultimately threatened to disseminate the video and humiliate her unless she agreed to have one final sexual encounter with him while he recorded it. Victim A initially refused, but eventually acceded to [Piznarski’s] demands and accompanied him into his bedroom. While there, [he] began recording victim A and disrobed her. Ultimately, victim A refused to have sexual intercourse with [Piznarski], but instead acquiesced to [his] video recording her while she performed oral sex on him. After leaving [Piznarski’s] apartment, victim A disclosed the incident to her roommate and reported it to campus security and to the local police. The police obtained and executed a warrant to search [his] apartment and retrieved a small digital camera, an ipod, an external hard drive and a laptop computer. A search of [Piznarski’s] laptop revealed multiple video files, including videos of the March 2010 and December 2010 sexual encounters between victim A and [Piznarski]. A third file was also found, which consisted of a video of [him] having sex with victim B. After learning the identity of victim B, a police investigator contacted her and she confirmed she had a sexual encounter with [Piznarski] in November 2010, but denied knowing that he had recorded it. People v. Piznarski, supra. Piznarski appealed, arguing, among other things that “the unlawful surveillance statute does not apply to his conduct at issue here.” People v. Piznarski, supra. The court begins its analysis of this issue by noting that in 2003, “the Legislature created the crime of unlawful surveillance in the second degree . . . as part of a group of laws criminalizing video voyeurism.” People v. Piznarski, supra. It also pointed out that New York Penal Law § 250.45 provides as follows: `A person is guilty of unlawful surveillance in the second degree when: 1. For his or her own, or another person's amusement, entertainment, or profit, or for the purpose of degrading or abusing a person, he or she intentionally uses or installs . . . an imaging device to surreptitiously view . . . or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or 2. For his or her own, or another person's sexual arousal or sexual gratification, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person dressing or undressing or the sexual or other intimate parts of such person at a place and time when such person has a reasonable expectation of privacy, without such person's knowledge or consent; or 3. For no legitimate purpose, he or she intentionally uses or installs . . . an imaging device to surreptitiously view, broadcast or record a person in a bedroom . . . without such person's knowledge or consent’. People v. Piznarski, supra. Piznarski was “convicted of unlawful surveillance under § 250.45(3) with respect to victim A, and under all three subdivisions with respect to victim B”. People v. Piznarski, supra. The Appellate Division was unpersuaded by [Piznarski’s] argument that the statute does not apply to the video recording of consensual sexual activity by one of the parties involved in that activity -- even if the recording is done without the knowledge or consent of the other party -- and that the statute, instead, was intended to cover only the actions of a `PeepingTom.’ People v. Piznarski, supra. It pointed out that there is nothing in the plain language of the statute that would preclude its application to the surreptitious recording of a consensual sexual encounter by one of the participants. . . . In fact, the statute's legislative history supports the conclusion that the Legislature intended its application to defendant's conduct. . . . A memorandum in support of the legislation described examples of various circumstances that necessitated the enactment of this law, one of them being that: `Women throughout . . . New York State have unknowingly been videotaped while engaging in sexual relations. Several women in this category have attempted to file complaints alleging that their partner made these videotapes without their knowledge or permission and are now showing them to friends and others, and even posting the video footage on the Internet. These women were turned away without a remedy’ (Governor's Memorandum approving L 2003, ch 69, 2003 N.Y. Legis Ann, at 54). People v. Piznarski, supra. The court therefore rejected Piznarski’s first argument. People v. Piznarski, supra. Piznarski next argued that the statute was unconstitutionally void for vagueness. People v. Piznarski, supra. As Wikipedia notes, “[i]n American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand.” As the Appellate Division noted, a two-part test is used to determine whether a statute is unconstitutionally vague; first, `the court must determine whether the statute in question is sufficiently definite to give a person of ordinary intelligence fair notice that his [or her] contemplated conduct is forbidden by the statute’ and, `[s]econd, the court must determine whether the enactment provides officials with clear standards for enforcement’. People v. Piznarski, supra (quoting People v. Stuart, 797 N.E.2d 28 (Court of Appeals of New York(2003)). Piznarski first challenged “the element of surreptitiousness, arguing that it cannot be established in this case because the camera was in plain view and both victims were aware of [his] presence in the room.” People v. Piznarski, supra. The court did not agree, noting that the statute prohibits the use of a device to surreptitiously record, without limitation as to the location of the device. . . . The term `surreptitious’ connotes a secretive act and is defined as `obtained, done, made, etc., by stealth; secret or unauthorized; clandestine[;] . . . acting in a stealthy way’ (Random House Unabridged Dictionary [online version] ). We discern nothing in the plain language of the statute that restricts its application to circumstances in which a defendant `spies’ on the victim from another location while the victim is being recorded. Thus, in this case, the fact that both [Piznarski] and the camera were visible in [his] room is immaterial, as [he] was using the camera in a surreptitious manner. In our view, inasmuch as the statute merely requires that the recording be surreptitious, it provided fair notice to defendant that his actions were prohibited. . . . People v. Piznarski, supra (emphasis in the original). The court also rejected Piznarski’s argument that the prosecution’s “interpretation of the element of surreptiousness impermissibly renders superfluous the requirement that the recording be without a victim's knowledge or consent.” People v. Piznarski, supra. The Appellate Division explained that [i]n addition to establishing that neither victim A nor victim B was aware of or consented to defendant recording them while having sex, the People also tendered proof of actions by [Piznarski] demonstrating that he used the camera surreptitiously. The video of victim B shows that [he] began to record and position the camera on his desk while victim B was outside his bedroom. Similarly, the March 2010 video of victim A shows that [he] turned the camera on while victim A was performing oral sex and had her eyes closed. [He] did not call the victims' attention to the camera or to the fact that he was recording them. This evidence, which establishes the element of surreptitiousness, can be distinguished from the evidence that proves the victims' lack of knowledge or consent and gives it independent meaning and effect. . . . Considering that the legislative history confirms that the statute was designed to proscribe this type of conduct . . ., we do not find any element to be superfluous. People v. Piznarski, supra. And the Appellate Division rejected Piznarski’s argument that “the phrase `reasonable expectation of privacy’ is impermissibly vague. People v. Piznarski, supra. It noted that [f]or purposes of Penal Law § 250.45(1) and (2) -- which prohibit the surreptitious use of a device to record an individual at `a place and time when such person has a reasonable expectation of privacy’ -- such phrase is defined as encompassing circumstances in which `a reasonable person would believe that he or she could fully disrobe in privacy’ (NewYork Penal Law § 250.40[1] ). When a person knowingly undresses and engages in sexual relations with another person, he or she should be able to do so with the reasonable expectation that his or her actions are limited to that particular time and place and that his or her naked body and/or sexual acts will not be memorialized and/or repeatedly viewed at any time by the other person present or by anyone else with whom that person decides to share the recordings. . . . Stated another way, `reasonable people expect to be safe from casual or hostile intrusion[ ] within a bedroom’ and, when `engaged in sexual relations in a bedroom of a private home[,] expect to be free from surveillance’ (Lewis v. LeGrow, 258 Mich.App 175, 670 N.W.2d 675 (Michigan Court of Appeals 2003)). It is of no moment that the unwanted intrusion came from the person with whom the victim engaged in sex. People v. Piznarski, supra. The court then explained that [h]ere, victim B testified that she believed she was engaging in a private sexual act with a person she trusted and, had she been asked, she would not have agreed to be videotaped while engaging in such act. In our view, the privacy element, when `[c]onsidered in light of the clear and understandable elements of the criminal conduct,’ gave defendant `adequate notice and law enforcement authorities sufficient guidance’ (People v. Stuart, 100 N.Y.2d 412, 797 N.E.2d 28 (Court of Appeals of New York 2003)) and we therefore reject [Piznarski’s] vagueness challenge in this regard. People v. Piznarski, supra. For these and other reasons, the Appellate Division affirmed Piznarski’s conviction and sentences. People v. Piznarski, supra.
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California Attorney General announces the arrest of alleged revenge porn website owner, charged with conspiracy, identity theft, and extortion
Yesterday, California Attorney General Kamala Harris announced the arrest of Kevin Bollaert, the “alleged owner and operator of a revenge porn website who facilitated the posting of more than 10,000 sexually explicit photos and extorted victims for as much as $350 each to remove the illicit content.” Bollaert, a 27 year-old San Diego native, is allegedly behind the site “ugotposted.com.” According to allegations in the arrest warrant, the site allowed posters to upload nude images of victims with accompanying personal information, which in some cases provided the victim’s name, city, state, Facebook account, and other social media sites. Additional statements in the arrest warrant allege that some of the victims paid money in order to have their images removed from the siteDoe # 1 and Doe #2 related that each of them sent an email to the website asking that their photos be removed and were instructed to go to the link at the bottom of UGOTPOSTED to have their photos removed. The link was to a website called changemyreputation@gmail.com. Both Jane Doe #1 and Jane Doe #2 stated that they paid $249.99 to have their photos removed from UGOTPOSTED.(NOTE: the website described in the above quote is likely misstated, and is likely referring to "changemyreputation.com." According to the arrest warrant, Bollaert is allegedly linked to this site as well).The accompanying complaint alleges 31 criminal counts, spanning 14 victims. Of particular note, however, is the explanation provide for in the conclusion of the arrest warrant:The publishing of nude photographs, in conjunction with the victim's name, Facebook account or other [personally identifiable information] without the victim's permission is the crime of identity theft in violation of Penal Code section 530.5. To be guilty under section 530.5(a), the defendant must (1) willfully obtain personal identifying information of another person, and (2) use the identifying information for an unlawful purpose without the person's consent." (People v. Tillotson (2007) 157 Cal.App.4th 517, 533.) Here the unlawful purpose includes both a criminal offense under Penal Code section 653m (b) and a civil tort for the publication of private images. (In re Rolando S (2011) 197 Cal.App 936.)Section 653m (b) states in pertinent part: "Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. In this case the investigation revealed that Kevin BOLLAERT is aiding and abetting the crime of PC 653m (b)-annoy or harass, by facilitating the publishing of nude photographs, in conjunction with the victim's name, Facebook page or other PII, without the victim's permission, which is the crime of identity theft in violation of Penal Code (PC) section 530.5. Furthermore, Kevin BOLLAERT, by demanding and accepting payments to remove victims unauthorized posted nude images from UGOTPOSTED via changemyreputation.com is the crime of extortion in violation of Penal Code section 518. The publication of the victims nude images exposed them to disgrace within their public lives. Kevin BOLLAERT continued to expose the victims private information and secrets to the public -unless paid.Considering the large amount of attention "revenge porn" has been getting lately, and what seems to be a somewhat aggressive use of California's identity theft law, it will be interesting to see how this case progresses.
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Eleventh Circuit Denies Resentencing Without Armed Career Criminal Enhancement – Garcia v. Warden
“Tough on crime” sentence enhancements sound good to voters, which is why politicians often propose them. But in practice, they can turn a relatively minor crime into a crime for which the defendant can do years of time. That was true for Daniel Garcia, who was sentenced under the Armed Career Criminal Act to more than 27 years in prison for possession of a firearm after a felony. Garcia was sentenced in 1999, and brought unsuccessful post-conviction motions before the appeal in Garcia v. Warden, in which he asks the court to resentence him without the ACCA enhancement. The petition argues that the sentencing court incorrectly relied on police reports to establish the prior convictions supporting the ACCA enhancement, in violation of the U.S. Supreme Court’s 2005 decision in Shepard v. United States. The Eleventh U.S. Circuit Court of Appeals denied relief.
Garcia was convicted of stealing a firearm and possession of a firearm by a convicted felon. The Eleventh Circuit did not review the details of his conviction, possibly because it had already affirmed the conviction and sentence on direct appeal. The 1999 conviction resulted in a sentence of 327 months in prison for the felon-in-possession conviction and a concurrent 120-month sentence for the stolen firearm. The conviction and sentence were affirmed in 2000, and Garcia then sought relief, arguing that his counsel had been ineffective by not arguing against the ACCA enhancement. The Eleventh circuit affirmed that denial in 2004. Then, without obtaining leave to file, Garcia petitioned for habeas corpus, arguing that the sentencing court had incorrectly relied on police reports to establish his three priors for the ACCA enhancement, in violation of Shepard. The district court dismissed for lack of jurisdiction, saying Garcia had not made the requisite showing to invoke the Savings Clause, which would permit the new petition after his ineffective assistance claim had been heard.
In his appeal, Garcia argued that he was eligible under the Savings Clause for the new hearing because of Shepard, decided after his ineffective assistance petition. He also argued that that case and another show that his ACCA enhancement was a conviction for a nonexistent offense. To decide whether Garcia should proceed, the Eleventh Circuit said, it must apply a three-part test laid down on Wofford v. Scott: the claim must be based on a Supreme Court decision that can be applied retroactively; the decision must show that he was convicted of a nonexistent offense; and circuit law must have foreclosed the claim at the time when he should have brought it. The Eleventh found that Garcia’s claim did not meet the first prong: Shepard does not apply retroactively. Neither the Supreme Court nor the Eleventh itself has said it does, and the general rule is that decisions don’t apply retroactively unless certain standards are met. They are not met here, the court said. Also, the court said, prior of its own cases show that the Savings Clause does not apply in this situation. It affirmed the district court.
I wish appeals courts would look more closely at the underlying problems with sentences like Garcia’s. He is serving 27 years for a possession crime, largely because he had a prior criminal record (apparently) allowing the court to apply the ACCA. That may be legal, but it’s worth questioning whether sentence enhancements like these serve society. Rather than attempting to rehabilitate defendants, our system has chosen to warehouse them in prisons instead, at great cost to them, their loved ones and of course, the U.S. taxpayers. That issue was not before the court in this case, unfortunately. For people who are facing new criminal charges, one important lesson is that it’s vital to avoid felony convictions, because any future conviction is likely to carry severe penalties. That’s why people charged with serious crimes should get help from a criminal defense attorney as early as possible.
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Human Rights Court Holds Hearing on CIA's Use of Poland
The European Court of Human Rights is holding hearings to determine Poland's complicity in the CIA's extraordinary rendition and torture program. The court is gathering evidence pertaining to the kidnapping, detention and torture of ...
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The 9 Most Controversial Celebrity Arrests Ever
While some celebrities use their fame and fortune to make the world a better place, others can't seem to figure out how to behave in a positive way. Celebrity arrests happen over and over - in a lot of cases, it's the same famous person getting arrested repeatedly. Some celebrities have made a second career out of run-ins with the law and are now more [in]famous for their arrest records than for their acting careers.
Lindsay Lohan
Let's call Ms. Lohan the queen of celebrity arrests. E! Online has made a nice timeline of her arrests, which started in 2007. The most recent was in March of 2013. I think the thing that makes Lohan's many arrests so controversial is that she doesn't seem to get the message. Despite being sent to rehab, placed on probation, and spending time in jail, she kept drinking and drugging. Word is that she's completely sober now - and I can only hope it lasts.
OJ Simpson
OJ Simpson is another celebrity who just keeps getting arrested. The guy was found not guilty of murder in 1995 and hasn't seemed to be able to avoid trouble with the law ever since. In 2007, a few months after publishing the brazen If I Did It, which hypothetically detailed how OJ might have committed the murders of Ronald Goldman and Nicole Brown Simpson, he was arrested for armed robbery. Four of the men arrested with him took plea bargains and ended up with probation. As for OJ, he got 33 years in jail.
Amanda Bynes
When you know the police are on their way, you have a few options. You can be resigned to the fact that you've been caught in the act. You can try to deny it. Or you can be like former child star Amanda Bynes and toss the evidence out the window of your 36th floor apartment. Her unusual reaction led to her being charged with tampering with evidence and criminal possession of marijuana. She was also charged with reckless endangerment, because who knows what can happen when you chuck a bong out of a high-rise window.
Christian Bale
Batman's a superhero. Christian Bale, the most recent man to play him, isn't so much. In 2008, the Batman actor was arrested for alleging assaulting his mother and older sister, the day before attending the European premiere of The Dark Knight. Although Bale ended up not being charged with anything after the police questioned him, his arrest cast a pall over the premiere of the film.
Heather Locklear
Heather Locklear is yet another celebrity who gets more attention these days for her arrests than for her work. The former star of Melrose Place and the sitcom Spin City was arrested in 2008 for driving under the influence. Her more controversial arrest happened in 2010, when she was technically arrested for an early morning hit-and-run. Luckily, all her car hit was a no-parking sign and no one was hurt. Police were able to trace the debris at the scene back to her BMW. Her attorney was quick to point out that there wasn't any proof that Heather was actually behind the wheel. A month later, she was cleared of any charges, since police couldn't find concrete evidence that she was in the car.
Richard Gere
Richard Gere was "arrested" for the crime of the century back in 2007. I'm kidding, of course. Gere finds himself on the list of the most controversial celebrity arrests because of the tame nature of the reason for the warrant against him. During a charity event in India the actor kissed Shilpa Shetty, a Bollywood star and a past winner of the UK's Celebrity Big Brother on the cheek. Some people took offense and deemed his actions obscene, leading to an arrest warrant. Gere was never officially arrested, though and the whole thing blew over a year later.
Charlie Sheen
Like Lohan, Charlie Sheen has been arrested so many times over the course of his career, it's difficult to keep them all straight. Let's go with his arrest on Christmas Day back in 2009 as his most controversial. Instead of having a nice family holiday, Sheen was ended up in jail after threatening his then-wife, Brooke Mueller, with a knife. He ended up being charged with third-degree assault, felony menacing, and criminal mischief.
Mel Gibson
In 2006, actor and director Mel Gibson was arrested for drunk driving. What made his arrest so controversial was the way he handled it. Gibson made anti-semitic remarks to the officer, James Mee. The saga of Gibson's arrest stretches beyond the actor himself. Mee accused the LAPD of retaliating against him. In 2012, Mee was ultimately fired by the department, for an unrelated matter.
Hugh Grant
Back in 1995, Hugh Grant was at the beginning of a successful acting career. He was also dating a beautiful actress, Elizabeth Hurley. Few people understand what would possess the actor to pick up a prostitute in LA in the wee hours of the morning, just before the release of his movie 9 Months. Although his arrest caused a stir and could have destroyed his career and his relationship, Grant handled it well, publicly apologizing on late night talk shows and seeming sincere in his apologies.
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'Revenge porn’ site creator charged with extorting victims to have nude photos removed
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Unanimous win for Kansas on Fifth Amendment issue in Cheever
The Supreme Court this morning handed down its first criminal law opinion in a case that was fully briefed and argued this Term. This unanimous ruling in Kansas v. Cheever starts and ends this way: The Fifth Amendment to the...
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The D.C. Circuit Holds That A Judge In D.C. Cannot Authorize A Bug in Maryland
The United States government thought that Lonnell Glover was a drug dealer. They tapped his phone, but he spoke in code so they couldn't get any evidence on him that way.
The government knew that Mr. Glover liked to talk in his truck, as so many Americans do. So they decided to get authorization from a judge to put a bug - a little microphone - in his truck.
The bug was authorized by a federal judge in Washington, D.C. The truck, at the time, was at Baltimore Washington International Airport (or, more accurately, Thurgood Marshall Baltimore Washington International Airport).
The bug picked up some conversations, not in code, that strongly suggested Mr. Glover is a drug dealer. He was convicted, and, on appeal, challenged the validity of the wire tap because it was authorized by a federal judge in D.C. for a car in Maryland.
The D.C. Circuit, in an opinion by Senior Judge Silberman, reversed, in United States v. Glover.
Eighteen U.S.C. section 2518(3) allows a federal district judge to:
"authoriz[e] or approv[e] interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)."
Does this language let a federal judge in Washington, D.C. authorize a wire tape for a wire that's not in Washington, D.C.?
That parenthetical is not a model of clarity. Here's how the D.C. Circuit parses it:
To be sure, the parenthetical phrase is somewhat ambiguous. It seems reasonable to read the words "such jurisdiction" in the phrase as referring back to the jurisdiction in which the judge is sitting; i.e., in this case, the District of Columbia, since the provision mentions no other jurisdiction. It is also possible that the phrase, by implication, refers to the jurisdiction in which the mobile interception device is installed.
So, could the parenthetical be read to say that a federal judge in D.C. could authorize the interception of conversations in Maryland for an investigation being run by the U.S. Attorney's Office in DC? The D.C. Circuit says no - it doesn't work with the rest of the language of the section:
Under either reading, the parenthetical makes clear that a judge cannot authorize the interception of communications if the mobile interception device was not validly authorized, and a device cannot be validly authorized if, at the time the warrant is issued, the property on which the device is to be installed is not located in the authorizing judge's jurisdiction. A contrary reading would render the phrase "authorized by a Federal court within such jurisdiction" completely superfluous.
The government has a response to this.
It argues that:
The government points to a handful of cases in which courts have found that an "interception" under Title III takes place at both the location of the listening post and at the location of a tapped phone. The government argues that in light of these cases, we should recognize that an issuing court has the power to authorize covert, trespassory entries onto private property, anywhere in the country, for purposes of placing surveillance equipment. The only jurisdictional limitation the government acknowledges is that the listening post must be located in the issuing court's jurisdiction.
It's like the argument the government frequently makes about wire fraud venue - any place that the wire goes through is an appropriate location for venue. If you email from California to Nevada, but the email goes through a server in Virginia, the government has argued that you can be tried in Virginia. Though it's a little odder here - the government, of course, controls where the listening post sits.
The D.C. Circuit doesn't go along with the government here - noting that the "listening post" language is just not in the statute.
Finally, the government asks the Court to ignore the jurisdictional problem because of the "good faith" exception to the warrant requirement. The D.C. Circuit gives this argument short shrift:
The government's last refuge is a plea that we recognize the government's "good faith" and, therefore, import a good faith exception to Title III's remedy of suppression. The Supreme Court has done so regarding Fourth Amendment violations, see United States v. Leon, 468 U.S. 897, 911 (1984), where there is no explicit textual remedy. Here, of course, Congress has spoken: The statute requires suppression of evidence gathered pursuant to a facially insufficient warrant.
The convictions were reversed, and the wiretapped conversations are suppressed.
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"Take Action: National Call-In Day for Sentencing Reform TODAY"
The title of this post is the heading of an e-mail I received this morning from The Sentencing Project. Here is the body of the e-mail request for action: After decades of "get tough" rhetoric, Republicans and Democrats in Congress...
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Jury Convicts Sheriff’s Deputies of Mortgage Fraud
James Arthur Nash, Jr., 43, and Arman Nshanian, 37, both of Corona, California, two deputies of the Los Angeles County, California, Sheriff’s Department were convicted in federal court for their roles in an $11 million mortgage fraud scheme. The defendants were each found guilty of conspiracy to commit wire fraud. In addition to the criminal […]
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Robert Evon Pleads Guilty to Drug Trafficking in NY Federal Court
Now that's a Coke Machine!Robert Evon, the Portland, Maine man accused in an international cocaine trafficking conspiracy, entered a guilty plea in the Northern District of New York on December 3, 2013. Sentencing was set for April 4, 2014. The plea documents revealed some interesting details about the case. All my coverage of the case is collected here.Evon is the former owner of Port City Music Hall, a Portland, Maine concert venue. In July of this year, he was indicted by a New York federal grand jury on conspiracy to distribute 5 kg or more of cocaine. He was arrested in Portland and extradited to Syracuse for further proceedings. Once in New York, Evon was denied bail. The case was then scheduled for a guilty plea on 12/3/13.For those who care about this kind of thing, the text of the minute entry for the plea hearing is reproduced in full below:TEXT MINUTE ENTRY for Change of Plea Hearing held on 12/3/13 before Judge Glenn T. Suddaby as to Robert Evon (1): Defendant is advised of his constitutional rights and the consequences of pleading guilty. Defendant is sworn and questioned. Defendant pleads guilty to count 1 of the Indictment and admits to forfeiture of property located at 374 Spring Street, Portland, ME in lieu of money judgment. Government states a factual basis for the plea. Maximum possible penalties are stated for the record. Court accepts plea of guilty to Count 1 of the Indictment. Plea agreement is incorporated into the record. Sentencing is scheduled for 4/4/14 at 10:00 a.m. in Syracuse, New York. Court orders a Presentence Report from Probation. Defendant is remanded to USMS. APP: Geoffrey Brown, AUSA; Kenneth Moynihan, Esq. for Defendant. CRD: L. Welch (Court Reporter: Eileen McDonough) (lmw) (Entered: 12/03/2013)Evon's Plea AgreementThe plea agreement is 20 pages long and mostly boilerplate. You can read the whole thing here. The best stuff is in paragraph 5 which lays out the factual basis for the plea. Here is an excerpt:On February 22, 2012, the defendant had Kenneth Irving rent a large box truck, drive to a warehouse in Elizabeth New Jersey and pick up two soda vending machines that the defendant had arranged to have filled in Los Angeles with 78 kg of cocaine. The defendant agreed to pay Irving $5000 for delivering the cocaine from New Jersey to White River Junction Vermont. The defendant previously arranged for the soda machines to be shipped from Los Angeles to New Jersey with a false bill of lading that was provided to the defendant by co-conspirator A. Irving called an individual located in Albany, New York, who, unbeknownst to him, was an undercover DEA agent, to arrange for the further delivery of the narcotics. The defendant rented the storage facility at 220 holiday Dr., White River Junction, Vermont in another person's name for the purpose of storing the vending machines and cocaine. The undercover agent arrived at 220 Holiday Dr. and Irving retrieved six large duffel bags, which had been secreted inside the two soda vending machines, and delivered them to the undercover agent.Other import details from the plea agreement include:The government will recommend a three level reduction in the offense level for acceptance of responsibility. That means the sentence will be reduced for pleading guilty rather than going to trial.A 10 year mandatory minimum sentence still applies.Evon and his wife agree to forfeit their home on Spring Street in Portland, Maine. The home is valued at about $575,000 yet the government agrees to accept that property in full satisfaction of the the $2.34 million dollar forfeiture claim. You can review that forfeiture agreement here.Evon waives his right to appeal a sentence that does not exceed 120 months.So What will the Sentence Be?The guideline sentencing range for this offense with the 3 point acceptance reduction and a criminal history of 1 is 135-168 months. The government usually sets the appeal waiver at a term that is equal to or longer than the sentence they will request, so it's pretty likely then prosecutors will recommend a sentence of 120 months or 10 years. The defense will likely argue that Evon should get an even lower sentence, something below the mandatory minimum. That's only possible if the "safety valve" criteria are met.Federal Safety Valve SentencingU.S. Sentencing Guideline §5C1.2 is often called the "safety valve" and it allows a judge to sentence below the minimum if the court finds:The defendant does not have more than 1 criminal history point (one misdemeanor with a sentence of less than 60 days in jail), The defendant did not use violence or threats of violence or possess a firearm or other dangerous weapon in connection with the offense; The offense did not result in death or serious bodily injury to any person; The defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and The defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.The defense is free to make this argument and the judge is free to reject it. Evon has a better shot if the government agrees with a below minimum sentence and 18 USC § 3553(f), allows the government to request safety valve treatment. That's probably not going to happen in this case.The way the government drafted the plea agreement makes it really hard for Evon to satisfy the safety valve factors. It's pretty clear from paragraph 5 that Evon was an organizer who set up the scheme, directing and employing others to accomplish components of the operation. If he had that kind of role, he is not safety valve eligible and without the safety valve, he gonna get at least a decade in prison.Check out further coverage of the plea from +Scott Dolan at the Portland Press Herald. Unlike me, he managed to publish something last week, right after the hearing.
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What’s Wrong With The Current Approach To Biker Profiling
I’ve been closely following legislation and lawsuits regarding biker profiling for over a decade. In that time, Arizona’s motorcyclists’ rights organizations have been giving it more and more attention. I think it’s fair to say that, for many or maybe even most bikers, it is the single most pressing issue they feel those organizations ought to be addressing right now.
In many ways, I’m inclined to agree. I hear new stories about police telling business owners not to allow patches in their establishments almost every day. As a criminal defense attorney, I represent clients who are clearly targeted by officers simply because they ride. Even after charges are filed, bikers are regularly treated far more harshly. In the City of Mesa, for instance, there is a special prosecutor for misdemeanors involving bikers, and things that would ordinarily be resolved with a fine or even pled ...
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The Range of Consequences of a Sex Offender Conviction
For a presentation I did recently on termination of sex offender registration requirements, I decided to see what requirements and restrictions a person is subject to under North Carolina law if convicted of an offense subject to sex offender registration.
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Jury Convicts Man of Fraud Involving Construction of Modular Homes
Keith Churn, 44, Nashville, Tennessee, was found guilty of bank fraud by a federal jury on Friday, December 6, 2013. Churn was convicted of seven counts of bank fraud in connection with a scheme to defraud a federally-insured financial institution that had issued loans for the construction of modular homes in Nashville and Franklin, Tennessee. […]
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The case for State Fire Marshal Chris Conneally as 'Texan of the Year'
My colleague at the Innocence Project of Texas, Cory Session, last week made an argument in the Dallas Morning News why State Fire Marshal Chris Conneally deserves to be named the paper's "Texan of the Year" for his review of faulty forensics in old arson cases. See below the jump for the meat of his argument: [Chris Conneally] has taught me a lot about what is good in Texas law enforcement. He stepped into the post in the summer of 2012. At that time, Texas was being widely criticized for executing Cameron Todd Willingham. Willingham’s murder conviction had been based on a shoddy arson investigation that was eventually discredited by the Texas Forensic Science Commission.Our previous fire marshal chose to defend that investigation and do nothing to change his agency’s practices. When Connealy, a 36-year firefighter, took over the job, he took over an agency that was seen as a national joke. Within a few weeks, Connealy started turning everything around. He met with Jeff Blackburn, chief counsel of the Innocence Project of Texas, and the two formed an alliance that had never been attempted in any other state. Together, they launched a partnership that eventually resulted in a review of more than 1,000 arson convictions and the investigations that supported them.That process led to the creation of something else that had never been done before — a scientific advisory panel made up of some of the nation’s leading experts in fire science.So far, that panel has completed five painstaking reviews. In three of them, arson investigators were found to have relied on flawed science; in two others the original work was found to have been done properly.What Connealy has done with the Innocence Project is unprecedented. Blackburn says it is transforming the relationship between science and the law. As Dr. John DeHaan, one of the most prominent fire scientists in the world and a member of the advisory panel, put it recently, Connealy’s efforts are turning Texas into a model for the entire country.Connealy has done even more than that for Texas, however. He has revolutionized his agency’s training program. His goal is to make Texas fire investigators the best trained in the country.He has energized his agency from top to bottom. Either he or his top investigators have been among the first to respond to deadly fires and explosions all over the state. Many of us have seen media coverage of him on the scene at places like West, working hard to put the facts together and determine what happened. In the space of a little over a year, he has made his agency into what it should have been all along — a dynamic force of dedicated men and women seeking the truth and keeping the rest of Texas safe.All of us want Texas to be the best at everything. To me, that includes being the best at achieving true justice for every citizen. With Texans like Fire Marshal Connealy running our system, we will get there. He deserves to be recognized for his efforts.
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2 Legislators Want To Keep Sex Offenders Away From Children
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Supreme Court Rules in Kansas v. Cheever
The Supreme Court ruling in Kansas v. Cheever is available in Adobe .pdf format. "Court: Kan. death sentence shouldn't be thrown out," is the initial AP report. The Supreme Court says a lower court should not have overturned the conviction...
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