A man who came back to a Clay County gas station to pay off a $3 debt ended up handing himself to police for an arrest on an armed robbery charge. A gas station clerk was telling a police officer about her "good deed" by loaning a man in an old truck $3 for gas and that he even left his wallet for collateral, according to a report in the Florida Times-Union. As the woman described the man, the officer realized the description was similar to that of a man accused of robbing a local sandwich shop the night before, the newspaper reported. When Brian Jeffers returned to the store to pay off his debt an hour later, police were waiting for him and arrested him for armed robbery in this Clay County Theft Case, the newspaper reported.
Jeffers is facing up to life in prison on the armed robbery charge, which is a first-degree felony. In this Clay County Theft Case, Jeffers is accused of walking into the restaurant and keeping his hand in his coat pocket like he was carrying a gun, then demanding cash and coming around the counter to grab about $200, the newspaper reported. It is not clear from the newspaper report whether or not Jeffers had a gun during the robbery, though, according to Florida law, it does not matter in terms of his charges. A person can be charged with armed robbery by threatening to use a weapon, as long as it would be reasonable for the victim to assume that the suspect had a gun. If someone points his or her finger inside a coat pocket insinuating he or she is armed, that can qualify as an armed robbery. The charge often applies in bank robbery cases if a person passes a note indicating he or she has a gun and is demanding money.
The same is true if a person uses a toy gun or an air gun in a robbery. The Clay County Theft Case becomes an armed robbery if the victim is reasonable in thinking the gun is real, and the fact that it is not in fact a deadly weapon does not matter. Armed is in the eye of the alleged victim in Clay County Theft Cases, whether a person has an actual gun or not - though there are plenty of arguments a Clay County Theft Attorney can make to try to have the crime reduced to a robbery, which has a maximum sentence of 15 years in prison. Our Clay County Theft Attorney has represented hundreds of people charged with various theft crimes and is experienced in the elements the state must prove to qualify a robbery as an armed robbery.
If you or a loved one needs a criminal defense attorney in Jacksonville or the surrounding area, call The Mussallem Law Firm at (904) 365-5200 for a FREE CONSULTATION. Our Clay County Theft Attorney, Victoria "Tori" Mussallem, is available 24 hours a day, 7 days a week.
Man arrested for armed robbery while returning $3 loan to Clay County gas station clerk
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Seminole County Suspended License Attorney - Daytona Beach DUI Attorney Seminole County Criminal Defense Lawyer - Daytona Beach DUI Attorney
Seminole County Suspended License Attorney - Daytona Beach DUI Attorney Seminole County Criminal Defense Lawyer Over 29,000 people charged with driving on a suspended license with knowledge in seven Central Florida counties in 2012.
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Durchsuchungen bei der Commerzbank wegen des Verdachts der Steuerhinterziehung
Mit rund 270 Beamten durchsuchte die Steuerfahndung mehrere Standorte der Commerzbank. Neben der Hauptzentrale sollen 40 weitere Standorte in Deutschland durchsucht worden sein. Es soll um Steuerhinterziehung von mehreren hundert Millionen Euro durch Kunden des Bankhauses gehen. Das Bankhaus selbst wird im Verfahren jedoch nicht als Beschuldigter, sondern lediglich als Zeuge geführt. Ein italienischer . . . → Read More: Durchsuchungen bei der Commerzbank wegen des Verdachts der SteuerhinterziehungÄhnliche Beiträge:Steuerstrafrecht: Staatsanwaltschaft ermittelt gegen UBS…Umsatzsteuerbetrug: Staatsanwaltschaft ermittelt gegen…Steuerhinterziehung: Razzia in der Zentrale der…Betrug: Staatsanwaltschaft ermittelt gegen ErgoBetrug im großen Stil: zwei Festnahmen
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California board OKs letting prostitutes who are raped or beaten collect from victims fund
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Financial Conduct Authority publishes Thematic Review of Asset Management Firms Anti-Money Laundering and Anti-Bribery Controls
The Financial Conduct Authority (FCA) has recently published its findings following a “thematic” review of 22 wealth and asset management firms. This report follows highly critical reports by the FCA in other industries such as commercial banking and insurance broking on which we at the Bribery Library have blogged previously.
At the beginning of the report the FCA says:
“Tackling financial crime is a key part of our remit, a responsibility we took over from the Financial Services Authority (FSA) in April 2013. Preventing financial crime is a vital element to achieving our objective of protecting and enhancing the integrity of the UK financial system…our document Financial Crime: A Guide for Firms, gives examples of good and poor practice covering all elements of financial crime. We want firms to use this document to review these practices, assess them against their own firm and take actions where necessary…”
The FCA reminds us that specific risks will vary depending on the nature, scale and complexity of firms operations and some factors which may increase the risk of money laundering and bribery and corruption include:
Non face-to-face business, which can be attractive for money launderers hiding behind stolen or fabricated identities
Customers from, or with links to, countries that are considered high risk from a money laundering and/or corruption perspective
Wealthy and powerful clients, particularly where they insist on a high degree of confidentiality
The use of off-shore trusts and shell companies to distance beneficial owners from their funds
High value and/or unexpected transactions
Payments or inducements, without a clear business rationale, to third parties
The FCA’s review focussed on the adequacy of firms’:
Anti-money laundering (AML) systems and controls, including account opening, transaction monitoring and suspicious activity reporting to mitigate money laundering risks; and
Anti-bribery and corruption (ABC) systems and controls, including the use of business introducers, third party payments and gifts and entertainment arrangements.
The FCA’s Findings
Although they found some good examples of money laundering and bribery and corruption risk management, they also found a number of common weaknesses across the firms in their sample of 22 firms. The FCA states that, taking into account the communications they have already issued on AML and ABC, they had expected the industry to have done more to ensure that they had suitable systems and controls in place.
A summary of their findings is set out below.
Most firms had relatively well developed arrangements for the ownership of money laundering and bribery and corruption risks. However, some firms could not provide evidence to demonstrate the effectiveness of senior management oversight and challenge.
AML and ABC issues were dealt with primarily as a compliance matter rather than as part of pro-active risk management. Failure to properly identify and assess risk often led to weaknesses in customer due diligence and ongoing monitoring of business relationships.
Most firms had a comprehensive suite of AML policies and procedures approved by senior management.
Some firms had inconsistent or absent controls to assess, classify and record risks posed by new customers, which meant that enhanced due diligence and enhanced ongoing monitoring was sometimes not carried out for high risk customers.
There were weaknesses in how most firms acted on the outcomes of risk assessments. Identified risks were often non-measurable and not actively monitored. This impacted the extent to which appropriate controls were defined to mitigate those risks.
Some firms considered that the long standing nature of some business relationships alone was a satisfactory substitute for keeping customer due diligence information up to date.
Some firms failed to take adequate steps to establish, verify and document the legitimacy of the source of funds and source of wealth to be used in business relationships for high risk customers.
Most firms failed to demonstrate adequate systems and controls for assessing bribery and corruption risks in relation to dealing with and monitoring third party relationships, such a relationships with agents or introducers.
Most firms had well established AML and ABC training initiatives in place setting out relevant AML and ABC rules and regulations. However the findings call into question the effectiveness of this training. Firms should develop more “tailored” training material focussing on risks specific to their business. Most firms had appropriate arrangements to govern training, including monitoring staff completion activity and incentivising staff to adhere to training requirements through performance management protocols.
The FCA’s Conclusions
The FCA found that AML controls varied across the sector. There were areas where some firms understood and met their obligations, and others where improvement was needed. However, there is still work for most firms to do to ensure bribery and corruption risks are appropriately mitigated.
Given their strong regulatory focus and previous publications on AML and ABC, the FCA state that they expected firms to have taken more action to ensure that their control reduced the risk of money laundering and bribery and corruption.
Their findings were, they say, a particular concern where the firms were part of major financial groups which should have been aware of their expectations. In some cases, the firms visited by the FCA were from groups that had been subject to previous regulatory attention, but they still found significant weaknesses.
The report, which is not very long, is well worth a read. Lessons can be learnt for all sectors and all parts of the economy as the observations made are pertinent to every business. It is interesting to note that even large businesses which are already heavily regulated and successful (i.e. have the resources to spend on compliance) have not got to grips properly with the FCA’s rules on AML and ABC compliance.
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What’s So Special About Information Security
Andrea M. Matwyshyn, The Law of the Zebra, 28 Berkeley Tech. L.J. 155 (2013).Michael MadisonA debate continues to brew about the proper interpretation of the Computer Fraud and Abuse Act (CFAA), the federal statute that imposes criminal penalties on individuals who access computer networks without authorization. For at least a decade, scholars and a growing number of courts have wondered whether the owner of a computer network could define “authorization” using form “terms and conditions” of the sort often [...]
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WHO KNEW?
Who knew that Chief Judge Moreno was Richard Sharpstein's intern at the Dade SAO? (comment courtesy of "The Chief")Who knew that Sharpie would routinely come back from court when he was a prosecutor, in the dog-house with then circuit court and soon to be 3rd DCA Judge (and a legendary chief Judge of that court) Alan Schwartz? (Comment courtesy of legendary prosecutor Abe Laeser). Apparently most of Abe Laeser's limited experience as a defense counsel was in defending Sharpie, his C prosecutor, from possible contempt proceedings. Who knew that Richard was a legendary camp counselor as a teen? (Comments from several of his campers). A life is so much more than the sum of it's parts; like a painting is more than just individual brush strokes. The things we do, great and small, add brush strokes to the canvas. Then at the end, our friends and family step back and look at the canvas. Sharpie painted a rich, full masterpiece. So did Stuart Markus- DOM's dad who passed away Sunday. Stuart Markus was remembered as a lawyer who never said "no" to a client in need. What a remarkable life he led, and what a wonderful example he set for the rest of us. What are you painting? Are you living each day to the fullest? Making the world better; helping a friend who is troubled or a stranger down on their luck? Are you giving a smile and stopping for a chat with the person who cleans the building you work in, or are you saving your time and energy just for those who are above you on life's ladder and can do something for you? All that you do - all these brush strokes- create the work of art that will someday be your life. That is one thing the comments on the blog about Sharpie and Stuart Markus have taught us. For those of you just hired out of law school and working at the PDs or SAO, your whole life is in front of you. And sooner than you think, most of your life will be behind you. Big cases will come and go. But if you don't take the joy out of each day, bring something special to each moment you interact with someone, and if you don't bring joy and happiness to those you meet (as Sharpie and Stuart Markus did) then your canvas will be dull; gray and black strokes, the picture muddled, the canvas wasted. Richard's funeral will take place at Temple Beth Shalom in Miami Beach. The address is 4144 Chase Avenue.Site Feed
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Madoff Ponzi Scheme, Five Years Later
(This Article originally appeared on Forbes.com on December 9, 2013)
It was the first week of December, 2008, and Bernard Madoff's world was in turmoil. Financial juggernaut Lehman Brothers had just filed for bankruptcy protection in what would be the largest corporate bankruptcy in history, and financial markets were in a tailspin. Investors were making withdrawal requests from his investment firm, Bernard L. Madoff Investment Securities (BLMIS), at an increasing pace.
On Wednesday December 10th, with an appointment already scheduled with a top criminal defense lawyer, an argument arose between Madoff and his sons about the "premature" nature of bonuses he was planning to distribute that week. It escalated into Madoff's confession to his sons and wife, Ruth, that there was "absolutely nothing left" and that his decades-long business was nothing more than a "giant Ponzi scheme." While Madoff and his wife attended the firm's Christmas party that evening, the next day, December 11th 2008, is a day seared into the memory of many. After a morning visit from the FBI, Madoff was arrested on suspicion of committing the largest Ponzi scheme in history. BLMIS was subsequently swarmed by authorities, and the firm's assets were later frozen. The world, as known by those connected to Bernard Madoff, was about to change.
Five years later, Madoff's Ponzi scheme remains the largest Ponzi scheme in history, taking tens of billions of dollars from thousands of victims and resulting in total losses of at least $17 billion. The numbers were truly staggering - indeed, the losses from the second, third, and fourth-largest Ponzi schemes collectively account for about 60% of the estimated cash losses in Madoff's scheme. While Charles Ponzi's namesake scheme had given the fraud its name back in the 1920's, Madoff's arrest quickly transformed "Ponzi scheme" into a household word. Investors began to question whether their financial advisor was "just another Madoff," and many would see their worst fears come true: the failure of BLMIS would mark the beginning of a multi-year period in which hundreds of Ponzi schemes were exposed.
Five years later, many questions remain unanswered. After Madoff's guilty plea and subsequent 150-year sentence, authorities sought to determine whether his claims that he acted alone were, in fact, accurate. The trustee appointed to oversee the liquidation of BLMIS, Irving Picard, has filed thousands of lawsuits seeking to increase the pot of money available to victims; to date, over $9 billion has been recovered. Regulators have sought to enact sweeping reforms to ensure another Madoff could not escape detection for decades. And Madoff's victims, after learning that some or all of their life savings had simply disappeared, have been forced to adapt to a new normal.
Recovery Efforts
On December 15, 2008, Irving Picard was appointed as the trustee tasked with sifting through the aftermath of BLMIS's shutdown and recouping assets for eventual distribution to victims. This began with winding down Madoff's business units, including a proprietary trading unit, broker dealer, and securities company. After securing Madoff's assets, Picard embarked on the monumental task of reconstructing Madoff's operations to understand the depth of the fraud and pinpoint investor gains and losses. After enacting a claims process for victims to submit their losses, Picard would ultimately approve approximately 2,500 claims while denying over 13,000 claims.
The majority of recovery efforts focused on "clawing back" funds from investors that were fortunate enough to receive distributions exceeding their principal investment. Picard ultimately filed hundreds of these proceedings, better known as "clawback suits," seeking the return of billions of dollars in "false profits." Thus far, Picard has recovered billions of dollars from the clawback lawsuits, including $5 billion alone from a suit filed against Jeffrey Picower, a longtime Madoff investor and acquaintance. After Picower's death in late 2009, it was announced that his estate would return $5 billion to Picard and an additional $2.2 billion to federal authorities. Many clawback suits remain pending.
In addition to clawback lawsuits, Picard also filed lawsuits against many of the financial institutions that did business with Madoff, including banking behemoths JP Morgan, HSBC, and UBS. Unlike the clawback suits that sought the return of false profits and didn't typically involve allegations of complicity or knowledge of Madoff's fraud, Picard claimed that the named financial institutions were "willfully blind" to Madoff's fraud despite becoming aware of numerous associated red flags. Picard sought $19 billion from JP Morgan alone, alleging the bank was "at the very center" of Madoff's fraud, had earned nearly half-a-billion dollars in fees, and had even quietly withdrawn over $250 million from Madoff's funds in late 2008 just before the scheme collapsed. However, a federal district court issued rulings prohibiting Picard from pursuing his claims, and a federal appellate court later agreed. Picard has since asked the Supreme Court to overturn that ruling.
To date, Picard has made three distributions totaling over $5.4 billion to victims with approved claims. Additionally, over $4 billion remains available for future distributions after resolution of various legal appeals. Federal authorities also recently announced that an additional sum of approximately $2.35 billion, representing the remainder of Picower's returned funds and other actions including forfeiture, would soon be available for victims. While the recovery process may not have proceeded as quickly as some victims may have hoped, it appears very likely that their total recovery will be significant.
Criminal Investigation
Despite Madoff's insistence that he acted alone, authorities were convinced that others were complicit in assisting and prolonging his fraud. In the ensuing investigation, authorities brought criminal charges against 15 individuals, including Madoff's inner circle, accountants, and traders. Of these 15 individuals, nine have pleaded guilty to various charges and have agreed to assist the government in building cases against former co-workers.
Frank DiPascali, Madoff's top lieutenant and one of the longest serving BLMIS employees, has played a pivotal role in these efforts, as he faces a possible sentence that could exceed 100 years. Last week, DiPascali served as the prosecution's star witness as he testified against five former co-workers accusing of knowingly aiding Madoff. Those five have maintained their innocence and claimed that they, too, were duped by Madoff. A verdict is not expected for several months.
The significance of the five-year anniversary of Madoff's fraud also carries criminal ramifications: many charges - including securities fraud, mail fraud, and wire fraud - carry a five-year statute of limitations. It is unknown whether any more individuals will be charged.
Regulatory Changes
In the wake of Madoff, a slew of reforms were proposed at the Securities and Exchange Commission, which was criticized for missing several opportunities to discover Madoff's scheme. This included greater transparency and coordination between regional offices, the creation of a central division to handle tips and market intelligence, a greater emphasis on encouraging whistleblowers to come forward, independent custody requirements, and improved fraud detection procedures.
Recently, the SEC adopted requirements that brokers holding investor assets file quarterly reports explaining how they maintain customer assets and detailing their compliance efforts. To understand the significant of these specific reforms, one need look no further than Madoff himself, who stated in a recent interview that his fraud was able to last so long because auditors failed to verify the existence of BLMIS assets at depository trusts.
These efforts have already begun to bear fruit. Enforcement has become a priority, and in 2011 and 2012 the SEC filed a record number of enforcement actions against investment advisors and investment companies. These efforts resulted in nearly $6 billion in court-ordered penalties and disgorgement.
Jordan Maglich is a Florida attorney whose practice focuses on securities and financial services litigation. Follow him on Twitter at @Ponzitracker.
For a detailed account of Madoff's fraud, read Diana B. Henriques' book, The Wizard of Lies, available at Amazon.
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Let’s find a better way to classify sex offenders
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Telephony Metadata, the 4th Amendment and Material Support of Terrorists
On February 22, 2013, “after 17 days of trial and deliberations,” a federal jury convicted cab driver Basaaly Saeed Moalin and three other defendants of (1) conspiracy to provide material support to terrorists in violation of 18 U.S. Code § 2339A(a); (2) conspiracy to provide material support to a foreign terrorist organization in violation of 18 U.S. Code §2339B(a)(1); (3) conspiracy to launder monetary instruments in violation of 18U.S. Code § 1956(h); (4) providing material support to terrorists in violation of 18 U.S. Code § 2339A(a); and (5) providing material support to a foreign terrorist organization in violation of 18 U.S. Code §§ 2339B(a)(1) and (2). U.S. v. Moalin, 2013 WL 6079518 (U.S. District Court for the Southern District of California 2013). If you are interested, you can read more about the case and the trial, and read case files in the prosecution, in the story you can find here. And as this press release explains, Moalin was sentenced to 18 years in prison on November 13, 2013. On November 18, 2013, the U.S. District Court Judge who has the case denied Moalin’s motion for a new trial. U.S. v. Moalin, supra. Under Rule 33(a) of the Federal Rules of Criminal Procedure, a defendant can base a motion for a new trial on a claim that “the interest of justice so requires.” The judge in this case found that was the basis for Moalin’s motion, which argued that “recent revelations by [Edward] Snowden and Government officials regarding NSA surveillance in this particular case warrant the suppression of all intercepted conversations.” U.S. v. Moalin, supra. As this article notes, NSA surveillance and phone intercepts played an important role in the prosecution. Moalin made several arguments in his motion, but this post only examines one of them: that the National Security Agency’ “intercepts and/or collection of electronic data related to: Moalin violated the 4th Amendment. U.S. v. Moalin, supra. More precisely, Moalin claimed the government’s “collection of telephony metadata” violated his rights under the 4th Amendment. U.S. v. Moalin, supra. The court explained that [a]t issue are two distinct uses of telephone metadata obtained from Section 215 [of the USA Patriot Act]. The first use involves telephony metadata retrieved from communications between third parties, that is, telephone calls not involving [Moalin]. [Moalin has] no reasonable expectation of privacy to challenge any use of telephony metadata for calls between third parties. See Steagald v. U.S., 451 U.S. 204 (1981) (4th Amendment rights are personal in nature); Rakas v. Illinois, 439 U.S. 128 (1978) (`4th Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted’); U.S. v. Verdugo-Urquidez, 494 U.S.259 (1990) (the term `people’ described in the 4th Amendment are persons who are part of the national community or may be considered as such). As noted in Steagald, `the rights [ ] conferred by the 4th Amendment are personal in nature, and cannot bestow vicarious protection on those who do not have a reasonable expectation of privacy in the place to be searched.’ . . . As individuals other than [Moalin] were parties to the telephony metadata, [he] cannot vicariously assert 4th Amendment rights on behalf of these individuals. To this extent, the court denies the motion for new trial. U.S. v. Moalin, supra. The explained that the “second use of telephony metadata involves communications between individuals in Somalia (or other countries) and” Moalin. U.S. v. Moalin, supra. The judge therefore analyzed whether Moalin, “and other Defendants through him, have any reasonable expectation of privacy in telephony metadata between Moalin and third parties, including co-defendants.” U.S. v. Moalin, supra. He began by noting that in Smith v. Maryland, 442 U.S. 735 (1979), “the Supreme Court addressed whether the 4th Amendment was violated when the telephone company, at police request and without a warrant, installed a pen register to record numbers dialed from petitioner Smith's home.” U.S. v. Moalin, supra. The judge then explained that [c]onsistent with Katz v. U.S., 389 U.S. 347 (1967), the [Smith] Supreme Court held that the application of the 4th Amendment `depends on whether the person invoking its protection can claim a . . . a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action.’ A . . . reasonable, or legitimate expectation of privacy is one where (1) the defendant, by his conduct, has `exhibited an actual (subjective) expectation of privacy,’ and (2) the individual's subjective expectation of privacy is `one society is prepared to recognize as “reasonable,”’ that is, whether the individual's expectation, ‘viewed objectively is “justifiable under the circumstances.”’ Smith v. Maryland, supra (quoting Katz v. U.S., supra). The Supreme Court noted that someone who uses a telephone has ‘”voluntarily conveyed numerical information to the telephone company and exposed’ that information to its equipment in the ordinary course of business,’ and therefore has `assumed the risk that the company would reveal to police the numbers he dialed.’ Smith v. Maryland, supra. The Supreme Court has consistently held `that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’ Smith v. Maryland, supra; U.S. v. Miller, 425 U.S. 435 (1976) (`the 4th Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to United States authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed’). U.S. v. Moalin, supra. For more on the Katz-Smithstandards, check out this prior post. Moalin argued that, notwithstanding these and other precedents, the judge should blaze a new path and adopt the approach to the concept of privacy set forth by Justice Sotomayor in her concurrence in U.S. v. Jones, 132 S.Ct. 945 (2012). In Jones, the Supreme Court considered whether the installation and subsequent monitoring of a Global Positioning System tracking device on an automobile by the police without a valid warrant and without the individual's consent violated the 4th Amendment. Noting that 4th Amendment jurisprudence, up to the latter half of the 20th century, was tied to common-law trespass principles, the majority held that `[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area,’ the 4th Amendment is violated. U.S. v. Jones, supra. As noted by [Moalin], Justice Sotomayor stated that the recent rise of the digital era of cell phones, internet, and email communications may ultimately require a reevaluation of `expectation of privacy in information voluntarily disclosed to third parties.’ U.S. v. Jones, supra. [Moalin] extrapolate[s] from this dicta that the court should recognize that [he] had a reasonable expectation of privacy cognizable under the 4th Amendment that the Government would not collect either individual or aggregated metadata. U.S. v. Moalin, supra. The judge found that the “difficulty” with Moalin’s argument is twofold. First, the use of pen register-like devices -- going back to Samuel Morses's 1840 telegraph patent -- predates the digital era and cannot be considered a product of the digital revolution like the internet or cell phones. See Samuel F.G. Morse, Improvement in the Mode of Communicating Information by Signals by the Application of Electro–Magnetism, U.S. Patent 1647, June 20, 1840, page 4 column 2. In short, pen register-like devices predate the internet era by about 150 years and are not a product of the so-called digital revolution-the basis for the concerns articulated by Justice Sotomayor. Second, and more importantly, the Supreme Court specifically and unequivocally held in Smith that retrieval of data from a pen register by the Government without a search warrant is not a search for 4th Amendment purposes. Smith v. Maryland, supra. Because individuals voluntarily convey numerical information to the telephone company to complete a telephone call, one cannot possess a reasonable expectation of privacy in the telephone number dialed (as opposed to the content of the conversation). Smith v. Maryland, supra. For these reasons, the court declines [Moalin’s] invitation to depart from well-established precedent. U.S. v. Moalin, supra. The judge also explained that when Moalin used his telephone to communicate with third parties, whether in Somalia or the United States, he had no legitimate expectation of privacy in the telephone numbers dialed. The calls were routed through the communications company and its switching equipment in the ordinary course of business. While Moalin may have had some degree of a subjective expectation of privacy, that expectation is not “one that society is prepared to recognize as reasonable.” Rakas v. Illinois, supra (quoting Katz v. U.S. supra). Furthermore, where the calls were initiated by third parties, whether from Somalia or other countries, Moalin's subjective expectation of privacy is even further diminished because Moalin cannot assert 4th Amendment principles on behalf of third parties. The court could not locate any authorities, nor [does Moalin] cite any pertinent authorities, that recognize any expectation of privacy in the receipt of telephone call data from a third party in a foreign country. As in Smith, because the metadata was obtained through communications companies and their switching equipment, Moalin `cannot claim that his property was invaded or that police intruded into a “constitutionally protected area.’’” Smith v. Maryland, supra. While technology continues to advance through the implementation of new devices and methods, the legal analysis remains fairly constant: whether “the government violate[d] a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. U.S., 533 U.S. 27 (2001). For the above stated reasons, [Moalin’s] minimal subjective belief in the privacy of telephony metadata is not one that society has adopted. U.S. v. Moalin, supra. In a footnote to the comment about intrusions into a “constitutionally protected area”, the judge pointed out that Moalin lacks standing to challenge the metadata collected in reference to communications initiated by third parties. The 4th Amendment rights are “personal in nature” and Defendant Moalin cannot assert any 4rth Amendment right on behalf of any party subject to the collection of telephone metadata. See Steagald v. U.S., supra. U.S. v. Moalin, supra. For these and other reasons, the judge denied Moalin’s motion for a new trial. U.S. v. Moalin, supra.
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AR: Cut and paste error in SW wasn't prejudicial
Cut and paste error in search warrant application for a cell phone that included a laptop computer that was not even at issue was not prejudicial. Only the cell phone was searched. Hayes v. State, 2013 Ark. App. 725 (December 11, 2013).
The paraphernalia for a meth lab was found 200 yards from defendant’s house on his farm, and this was open fields. United States v. Castleman, 2013 U.S. Dist. LEXIS 173436 (E.D. Ark. December 11, 2013).*
A private party looked in defendant’s van and told the police she did. The officer asked if there was anything illegal in the van, and she went back and retrieved it. The officer never suggested the search, so it was a private search. United States v. Herrera, 2013 U.S. Dist. LEXIS 174057 (E.D. N.C. October 25, 2013),* adopted 2013 U.S. Dist. LEXIS 174058 (E.D. N.C. December 12, 2013).*
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D.Neb.: Short duration of occupancy doesn't mean defendant couldn't consent
Defendant had moved into the place he consented to a search of a week earlier. That was apparent authority for his consent. “Surely, someone who just moved into a dwelling has as much right to consent or refuse a search as someone who has lived there for years.” United States v. Ramirez, 2013 U.S. Dist. LEXIS 174030 (D. Neb. December 11, 2013).
Defendant’s 2255 claim that his lawyer didn’t properly handle the suppression issues is completely belied by the record. United States v. Garibay, 2013 U.S. Dist. LEXIS 173871 (S.D. Cal. December 10, 2013).*
“[T]he odor of both PCP and marijuana coming from Scott's vehicle provided him with probable cause to search the entire vehicle for illegal drugs – including the side pocket of the driver's door where the subject gun was immediately visible upon opening the door.” United States v. Scott, 2013 U.S. Dist. LEXIS 173765 (W.D. Mo. November 17, 2013).*
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News Roundup
Yesterday a jury in Wake County convicted Markeith Council, a former detention officer at the Wake County jail, of involuntary manslaughter for killing inmate Shon McClain, who was jailed on misdemeanor charges, after McClain fought the guard. A video shown at the trial shows the much larger Council slamming McClain twice on the concrete floor. […]
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Man Sentenced for Bank Fraud Scheme Involving Real Estate Developments
Derek Barnhill, 49, Rio Rancho, New Mexico, was sentenced to three months in federal prison, followed by three years of supervised release, which is to include nine months of home confinement, for his bank fraud and money laundering conviction. Barnhill also was ordered to pay $560,129.39 in restitution. The restitution is to be paid jointly […]
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Colorado stops putting mentally ill into Administrative Segregation
The Denver Post
Colorado prison
wardens can no longer send prisoners with major mental illness to
solitary confinement, according to a memo distributed Thursday that
solidifies state policy years in the making.
The numbers of
mentally ill prisoners locked in cells alone for 23 hours each day has
steadily dropped this fall: from 40 in September to fewer than 30 in
November and now to just
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Real Estate Executives Indicted on Fraud Charges
Laurance H. Freed, 51, Chicago, Illinois, and Caroline Walters, 53, of Palatine, Illinois, two executives of a prominent Chicago real estate development company, were indicted on federal fraud charges alleging that they lied about and concealed unpaid property taxes, the double-pledging of public financing notes issued by the City of Chicago, and the company’s default […]
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Healthcare not Handcuffs: Putting the Affordable Care Act to Work for Criminal Justice
ACLU Report
For the last 40 years, we have largely relegated health
problems like substance abuse and mental health disorders to the
criminal justice system. As a result, millions of people are burdened by
felony convictions due to drug use, and those who cannot afford to pay
for treatment have had to be locked in cells in order to get access to
necessary care.
Now, we have a chance to do
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Pennsylvania Expands Use of Red Light Cameras to Issue Traffic Tickets
For the past several years, Philadelphia has been the only city in Pennsylvania to install and use red light cameras to issue traffic citations for failing to stop at a red light. However, an amendment to the law last year allowed for its use to expand beyond Philadelphia to other highly populated areas of the […]
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Texas's exclusionary rule not inconsistent with independent source doctrine
Texas’s exclusionary rule does not bar application of the independent source rule because evidence found subject to it is lawfully found. Wehrenberg v. State, 2013 Tex. Crim. App. LEXIS 1812 (December 11, 2013) (concur; dissent), appeal from 385 S.W.3d 715 (Tex. App. – Fort Worth 2012):
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ID: CI's great detail corroborated by two controlled buys off defendant
The CI was worth crediting here because he had great detail about defendant going to California to score some marijuana to bring back to Idaho to sell, and he was corroborated by two controlled buys off the defendant. When defendant made two traffic violations, his stop was valid and reasonable suspicion existed to extend the stop. State v. Widner, 2013 Ida. App. LEXIS 89 (December 10, 2013).*
The CI here gave probable cause for defendant’s stop, not just reasonable suspicion, and the officer was also authorized to do a patdown on what he knew. State v. Cole, 2013 La. App. LEXIS 2575 (La. App. 5 Cir. December 12, 2013).*
No cause of action was stated against the defendant hospital for participating in a search and seizure on its premises. “There were no allegations of any factual or legal basis for liability against Desoto Regional for purported violations of Louisiana law or the Fourth Amendment for search and seizure.” Also, [in passing] the USMJ upheld the search in federal court [so why not collateral estoppel?]. Miller v. Desoto Reg'l Health Sys., 2013 La. App. LEXIS 2530 (La. App. 3 Cir. December 11, 2013).*
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