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MacMahon on Self-Service Search Warrants and International Terrorism

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Paul MacMahon (Harvard Law School) has posted Self-Service Search Warrants and International Terrorism: Lessons from Damache v. DPP (Irish Law Journal, Vol. 1, p. 2, 2012) on SSRN. Here is the abstract: In February 2012, the Supreme Court of Ireland...

Guilty Plea in $50 Million Real Estate Ponzi Scheme

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A New Jersey man pled guilty to orchestrating a real estate Ponzi scheme that took in more than $50 million from over 200 victims.  David Connolly, 51, agreed to plead guilty to one count of securities fraud and one count of money laundering.  In return for his plea, the government agreed to drop the remaining thirteen charges in the 15-count indictment originally returned by a federal grand jury in May 2012. The securities fraud charge carries a maximum sentence of twenty years, while the money laundering charge has a maximum term of ten years.   Connolly was originally charged back in May 2012 by both the Department of Justice and the Securities and Exchange Commission.  According to authorities, Connolly began forming separate investment vehicles in 1996 to be used for separate offerings of securities to investors, who were told that the proceeds would be used to acquire and manager one or more rental apartment buildings in Pennsylvania or New Jersey.  For each offering, Connolly drafted an offering prospectus that was provided to investors and detailed the "shares" each would receive in return for their investment.  In total, Connolly raised more than $50 million from over 200 investors. According to authorities, the operation turned criminal sometime in 2006, when Connolly fraudulently induced investors to purchase interests in certain investment vehicles by making material misrepresentations concerning the use and segregation of investor funds.  For example, while Connolly represented that the proceeds of an offering would be used solely to purchase the specific properties identified in the offering prospectus, this was inaccurate.  Instead, on numerous occasions Connolly used funds from one offering to purchase properties that were the subject of a different offering.  Additionally, Connolly used investor funds to make purported cash flow dividends from the performance of the properties tied to each offering, a classic hallmark of a Ponzi scheme.  Investor funds were also used to make improper payments totaling $2 million to Connolly, as well as refinance properties and other unauthorized uses.  When the scheme unraveled in 2009, the properties owned by the investment vehicles were forced into foreclosure, thus eliminating all investor interests. Connolly is scheduled to be sentenced June 4, 2013, and faces up to thirty years in prison for the securities fraud and money laundering charges.  As part of his plea agreement, Connolly also agreed to forfeit nearly $10 million.    A copy of the SEC lawsuit is here.

Crash near American Falls injures two.

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IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer DO NOT REPLY --------------------------------------------------------------------------- Idaho State Police District 5 5205 South 5th Ave. Pocatello, Idaho 83204-2299 (208) 236-6466 FAX: (208) 236-6068 For Immediate Release: 2/04/2013 at 8:30 p.m. Please direct questions to the District Office On February 4, 2013, at approximately 4:00 p.m., Idaho State Police investigated a two vehicle crash on South Pleasant Valley Road, just west of state highway 39, near American Falls. Shelby Hunt, 16, of American Falls, was traveling westbound on S Pleasant Valley Rd, in a 2002 Dodge Neon. Frederick Harms, 55, of American Falls, was driving a 2004 Ford Pickup. Harms was emerging from a driveway, pulled out in front of Hunt and collided with the passenger side of Hunt's vehicle. Hunt was transported by ground ambulance to Portneuf Medical Center and her passenger by air ambulance to Eastern Idaho Regional Medical Center. The Crash is still under investigation by Idaho State Police. -------------

Monday Night Open Thread

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Anonymous hacked the Department of Energy last month, the agency confirmed. No classified info was taken, just personal data. There are also claims that Anonymous is responsible the release of 4,000... [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

Ray Lewis, Facebook, and the Justice System

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Ray Lewis’s retirement has made for an interesting time to be a criminal defense lawyer. Many of us who defend people for a living lead two lives. In one, we are in and out of jails, explaining things to clients in the hallway after a loved one was led out of the courtroom in handcuffs,... Continue Reading

Will deferred prosecution fix a refusal?

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No. A Deferred Prosecution will not cure or fix a refusal of the breath test at the police station. If you do not win the Department of Licensing (DOL) Hearing you will have at least a one (1) year revocation...

MT - Bill would require violent and sexual offenders to submit DNA

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Original Article02/04/2013By John S. AdamsHELENAAttorney General Tim Fox urged members of the Senate Judiciary Committee to move a bill aimed at cracking down on sexual and violent offenders who move to Montana from other states. Fox, along with representatives from the state crime lab and law enforcement and local prosecutor groups, testified in favor of the measure, which would require sexual or violent offenders who move to Montana to submit a DNA sample to a state DNA database. The bill’s sponsor, Sen. Cliff Larsen, D-Missoula, said current laws contain a “loophole” that leaves crimes unsolved. “When a sexual or violent offender from another state is released from supervision, that offender is able to move to Montana and register as a sexual or violent offender, but that offender does not have to provide a DNA sample to be entered into the state database,” Larsen said. “This loophole affects public safety in that only by having these DNA profiles in the Montana state DNA database can many heinous unsolved cases be solved and can future crimes be prevented.” Montana is one of four states that doesn’t require such sampling. Fox said without the new legislation in place, law enforcement officers may be unable to solve many of the cold cases that are in the Montana state DNA database. Fox said DNA sampling has lead to arrests in convictions in other states. He cited an example from Wyoming, in which authorities solved a 1990 rape case after a registered violent offender submitted a DNA sample to Wyoming’s state DNA database. Fox said the victim was sleeping with her young child in bed at home when she was assaulted and raped at knife point. Investigators developed a DNA profile of the perpetrator based on biological evidence from the crime. The perpetrator was imprisoned in another state for an offense which, at the time, did not require a DNA sample be submitted for database storage. When the perpetrator was released from prison, he moved back to Wyoming, where he was required to submit a DNA sample when he registered as a sexual offender. When authorities entered the DNA profile into the database, it connected him to the 1990 rape case. “This common-sense change not only gets Montana up to speed with most other states, but may lead law enforcement and prosecutors to criminals who should be in prison for unsolved crimes and prevent them from committing future harm against our children or other members of society,” Fox said. No opponents testified against the measure Monday. The bill is expected to clear the committee later this week.© 2006-2013 | Sex Offender Issues

FL - City Council seeks public input on sex offender laws

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Original ArticleOnce again, they are putting all ex-sex offenders into one group, someone who harms children, which is a flat out lie and deceitful. If the law affected those who committed their crimes near schools or a park, then it would make more sense, but this affects everybody.02/04/2013FORT MYERS - The Fort Myers City Council is considering tougher restrictions on registered sex offenders. If passed, sex offenders must stay at least 300 feet from parks and schools. The question is whether the proposed rule is too strict or exactly what is needed to protect the city's children. Tonight, the city is holding a public hearing and wants to know what people think. Currently, state law prohibits a sex offender from living less than 1,000 feet from public places where children might be present. This ordinance would add an extra layer to that, specifying that an offender can't be present 300 feet from a school, park, daycare, etc. Civil rights groups have complained the proposed rule is too strict, leaves few options for sex offenders and is essentially a way to get them back into jail. Some residents say they don't have much sympathy for that argument. This rule mimicks one that is already in effect in Lee County. The public hearing on the matter will take place at the 4:30 City Council meeting, and that portion of the agenda is set to take place after 5:00 p.m.See Also:Fort Myers passes sex offender ordinance © 2006-2013 | Sex Offender Issues

GA - Lawmaker introduces bill to ban sex offenders from driving school buses

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Original Article02/04/2013By Christopher KingATLANTA (CBS ATLANTA) - A state lawmaker has introduced a bill that would ban anyone on the sex offender registry from getting a new license to drive a school bus or a charter bus.- Once again, putting all ex-sex offenders into one group, those who harm children, which is not true. If a person commits a crime that did not involve a child, then they should be able to drive a bus. "It would be a total restriction on any transportation of children," said State Rep. Paul Battles. Battles has introduced a bill that would bar anyone on the sex offender registry from getting a new commercial driver's license and driving certain types of commercial motor vehicles. That means a convicted sex offender would not be able to drive a school bus or a charter bus. Battles said his bill would add another layer of safety for children.- And more discrimination against those whose crime didn't involve children! "This just protects them against the possibility of someone committing another crime," Battles said.Page Pate, a legal and constitutional expert, said the bill takes the current law a step further, but is not needed. "If the intent is to keep sex offenders away from kids, the current law already does that," Pate said. "Right now, if you're on the sex offender registry, you can't drive a school bus because the conditions of your probation would prohibit you from congregating around minors."- This is not exactly true.  First, not all ex-sex offenders are on probation / parole, and once they are off paper, many can live or do whatever they want, besides, this is just another law that is lumping all ex-sex offenders into one group and treating them all as if they've harmed children. Pate, however, said the bill stands a good chance of being approved into law and holding up in court. "They're not trying to prevent someone who's now off the registry from doing their current job. If they already have the ability to drive the school bus, they can continue to do that," Pate said.- Good, but what if they don't already have a job driving a bus, will they be able to get one?  I seriously doubt it. The bill last year stalled in general assembly because it just ran out of time to be passed, battles said. Battles believes the measure will be approved into law this year.© 2006-2013 | Sex Offender Issues

Freispruch nach angeblicher Unterschlagung in Physiotherapie-Praxis

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In einer Physiotherapie-Praxis sollen rund 3700 Euro in der Kasse gefehlt haben. Der Betreiber der Praxis beschuldigte eine ehemalige Angestellte, das Geld genommen zu haben. Vor dem Amtsgericht Düsseldorf stand nun der Vorwurf der Untreue im Raum. Die Angestellte hatte Ende 2010 per Unterschrift bestätigt, dass 3992 Euro in der Kassette der Kasse waren. . . . → Read More: Freispruch nach angeblicher Unterschlagung in Physiotherapie-PraxisÄhnliche Beiträge:Jobcenter: Ehemalige Mitarbeiter sollen mindestens 600.000…Untreue: Staatsanwaltschaft klagt DJV-Chef anUntreue: Notar veruntreute 3,7 Millionen EuroGeldwäsche: Internet-Wirtschaft kritisiert Rufe nach…Verdacht der Untreue: Ermittlungen gegen Sohn von Beate Uhse

The President's Defense

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<font style="FONT-SIZE: 12px" face="arial">NBC has obtained a&nbsp;<a href="%3CBlogInfo:URL%20/%3E/files/66432-58232/020413_DOJ_White_Paper.pdf">white paper</a> explaining to some extent the Executive Branch's rationale for the targeted drone killing of Americans overseas.As one might expect, it's long on the president's obligation to safeguard Americans and short on definitions, explanations or legal foundation. Essentially, it boils down to "'cause we say so."<br> <br> Via the <a href="http://www.nytimes.com/2013/02/05/us/politics/us-memo-details-views-on-killing-citizens-in-al-qaeda.html?hp">New York Times</a>:<br> <br></font> <blockquote><font style="FONT-SIZE: 12px" face="arial">Obama administration lawyers have asserted that it ...</font></blockquote>

JUSTICE UNDER CONTINUED ATTACK: CORRUPT POLICE, LYING WITNESSES, COMPLICIT PROSECUTORS AND FABRICATED TEST RESULTS

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Michael Cosme, Devon Ayers and Carlos Perez were freed from prison in the night hours of January 23, 2013. Eighteen years ago they had been sent to a New York state prison for a crime they did not commit. They were convicted of killing a cab driver and a FedEx executive. They would have died in prison had it not been for an NBC Dateline investigation that brought national media attention to their case and prompted prosecutors to find out that two gang members had confessed to committing the double murder.

SOTO GIVES RODRIGIUEZ-CHOMAT THE FINGER

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Penelope Soto (what Soto did you think we meant?) gave Judge Rodriguez-Chomat "the finger" during a tete-a-tete over a bond hearing after the Judge made inquiry over the value of the jewelry she was wearing. Ms. Soto, age 18, said the jewelry was worth "Rick Ross" type money. Rodriguez-Chomat, who (and we're just guessing here) might not be partial to the SoBe hip-hop artist, then raised Soto's bond from $5,000 to $10,000. After the parties engaged in repeated and various salutations ending the unusual encounter, Soto raised her middle finger to the Judge and mentioned an act of human relations not normally encountered over a video bond hearing between an inmate who is partial to Rick Ross and a much older and distinguished jurist whose tastes might just possibly run to musical artists a few decades in the past. In any event, the episode (view the NBC6 video here) ended with Judge Rodriguez-Chomat making her an offer she couldn't refuse: thirty days in the jail while Ms. Soto contemplates her actions. Thoughts? We recently read a federal opinion in which the use of the middle finger as a salutation was heavily footnoted and in which the federal appeals court concluded was constitutionally protected speech. On the other hand, there is the well known adage that the first amendment (regrettably) does not cover .....warning- while this is a family blog, the following may not be safe for young children or those who wear robes....telling a judge something that almost every lawyer has wanted to say at one time or another in their career but has not. By all accounts Judge Rodriguez-Chomat is a gentleman and a judge not known for losing his temper on the bench. As to Penelope Soto, that little snot-snosed whipper-snapper got what she deserved. She was in a court of law after all, and unsolicited references to Rick Ross have no place in a temple of justice. See you in court, where we have never said such a thing....(but are not discussing whether we have ever thought about saying it). Site Feed

That Run Down Feeling in Wichita

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<font style="FONT-SIZE: 12px" face="Arial">Ever get that run down feeling?&nbsp; You know, the one where a police car going very fast without its lights or sirens on runs you down. It's happening with some frequency in Wichita, Kansas lately, and apparently the locals <a href="http://www.kansas.com/2013/02/03/2662317/wichita-police-policy-on-lights.html" target="">aren't entirely thrilled about it</a>.<br> <br></font> <blockquote> <p><font style="FONT-SIZE: 12px" face="Arial">Since 2007, three people in Wichita have been killed in accidents with officers who were allegedly speeding and did not have ...</font></p></blockquote>

Tracing Meets Twombly: Ninth Circuit Sets Section 11 Pleading Standards For Aftermarket Purchasers

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In a precedent setting decision, the Ninth Circuit affirmed dismissal of a putative class action in In re Century Aluminum Co. Securities Litigation, significantly raising the pleading bar in Section 11 cases. Plaintiffs alleged that Century Aluminum and its underwriters, Credit Suisse and Morgan Stanley, issued false and misleading statements in connection with a secondary [...]

DOJ White Paper: Use of Lethal Force Against U.S. Citizens as Terrorists is Lawful and Reasonable Under Fourth Amendment

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DOJ White Paper: Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who is a Senior Leader of Al-Qa’ida or An Associated Force on NBC News website. The White Paper concludes on page 9 that such a use of deadly force is reasonable under the Fourth Amendment.

D.Mont.: A polygraph test is not a search

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A polygraph test is not a search. United States v. Alvarez, 2013 U.S. Dist. LEXIS 14813 (D. Mont. February 4, 2013).* A UPS supervisor was suspicious of several packages going to defendant’s address, so he opened it finding drugs. The first search was a private search, and the anticipatory warrant was valid. United States v. Adams, 2013 U.S. Dist. LEXIS 14853 (D. Mont. January 14, 2013).* A court order was obtained to track defendants’ phones, and their argument is foreclosed by a later decision of the Sixth Circuit in United States v. Skinner, 690 F.3d 772 (6th Cir. 2012) (they’re just preserving it if Skinner is reversed, anyway). United States v. Money, 2013 U.S. Dist. LEXIS 14172 (E.D. Ky. February 1, 2013),* R&R United States v. Money, 2013 U.S. Dist. LEXIS 14811 (E.D. Ky. January 14, 2013).*

In the News & Around the Blogopshere

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David Oscar Markus, Southern District of Florida Blog, A Call to the Judiciary Sherri Qualters, National Law Jrl, law.com, Lawyer gets home confinement for failing to report boss's mortgage fraud Texas State Securities Board, Foreign Notes Scammer Sentenced to 80...

KS: A stop cannot be continued on a mere hunch

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A stop or continuation of a stop cannot be based on a mere hunch, and this one was. State v. Martinez, 2013 Kan. LEXIS 16 (February 1, 2013).* The officers’ testimony that they observed plaintiff engaged in a drug transaction was probable cause for arrest foreclosing his § 1983 claim. Fahie v. Rivera, 2013 U.S. App. LEXIS 2368 (2d Cir. February 4, 2013).* A Syracuse police officer was working off duty at an athletic event in the Town of Dewitt, and he lacked police authority there. His search of defendant’s car was thus unlawful. People v McGrew, 2013 NY Slip Op 637, 2013 N.Y. App. Div. LEXIS 673 (4th Dept. February 1, 2013).*

Federal District Court finds reasonable expectation of privacy in packages mailed with fake recipient and sender

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Confronted with an issue of first impression, a federal district court held that the sender of packages labeled with fictitious sender and recipient information retained a reasonable expectation of privacy in the contents of those packages. The case is United States v. Williams, ___ F. Supp. 3d ___ (W.D. Tenn Dec. 6, 2012). The court's decision was based primarily on the Seventh Circuit's opinion in United States v. Pitts, 322 F.3d 449 (7th Cir. 2003), since there was no controlling precedent from the Sixth Circuit. The facts of the case are quite simple - an informant was working with the DEA to facilitate methamphetamine buys, and when the drugs for two deals were shipped to the informant, the DEA intercepted them before delivery, and confirmed that they were in fact drugs. The defendant argues that the evidence should be suppressed, because he retained a Fourth Amendment right against search of the packages by the DEA (since they never ended up with the recipient). The government argued, alternatively that by using the fictitious names, the packages were essentially abandoned. With respect to the reasonable expectation of privacy component, the court relied on Pitts extensively, quoting a large section of language. The gist was that there are legitimate reasons for using false names, like a literary pseudonym, and those individuals should not lose their expectation of privacy due to the nefarious actions of people who abuse the system. The court quoted Pitts further, for the general point that: Unlike the theoretical burglar in Rakas, who is plying his trade in a summer cabin during the off-season and who is wrongfully present on someone else's property, Pitts and Alexander had a right to use false names in sending and receiving mail. There is nothing inherently wrong with a desire to remain anonymous when sending or receiving a package, and thus the expectation of privacy for a person using an alias in sending or receiving mail is one that society is prepared to recognize as reasonable. A person using this means of maintaining privacy runs the risk that if the mail is undeliverable, as occurred here, it might become irretrievable. Pitts and Alexander took that risk and ended up losing - indeed, abandoning - control of their property. Having abandoned the package, they surrender their Fourth Amendment claim. I think the court's decision here was a no-brainer. What isn't so clear is why the court would reach the issue in the first place, since in the next paragraph, the opinion notes that the defendant lacked Fourth Amendment standing to begin with, since the expectation of privacy ended upon delivery to the DEA. The court then goes on to assume, arguendo, that the defendant did not lack standing, and tackles the issue of whether the DEA intercepting the packages before arriving at the designated recipient (the informant, who knew where to pick them up, despite the fictitious recipient name) was a valid search due to the lack of the warrant. Here, I think the opinion arrives at its muddiest point. The court concedes a fact that I think draws the entire section just mentioned into question (CS is the informant): While it is not entirely clear that the agents ever received express consent from the CS, they at minimum had the CS's implied consent. So, the DEA never had consent, expressly, to search the packages, and the informant was not even aware that they would be intercepted. The court finds implied consent from the informant's relationship and cooperation with the DEA, the fact that the packages were purchased with DEA money, and that the informant allowed his telephone conversations to be recorded. However, that is not enough, in my opinion. The court goes on to analogize the case to a Fourth Circuit case aptly named United States v. Williams, 106 F.3d 1173 (4th Cir. 1997). The court describes the similarities with that case and the present as follows: The present case is similar to United States v. Williams, 106 F.3d 1173, 1177 (4th Cir. 1997). There, a confidential informant made three separate, DEA-monitored purchases of methamphetamine by mail from the defendant. The methamphetamine packages were mailed by the defendant to the informant at a post office box under the control of the DEA. The defendant argued that the agents violated his Fourth Amendment rights by opening the packages without a warrant. The Court of Appeal rejected this argument, holding that  We are of opinion that the admission of the contents of the three envelopes did not constitute error at all, much less plain error. Even assuming Williams had standing to challenge the admissibility of the envelopes, the record indicates that [the informant's] consent was implied from his conduct during the investigation. [The informant] had the right to open, or given consent to open, the envelopes because they were addressed to him. Also at this time, [the informant] . . . and the Task Force agents who actually opened the packages were cooperating. [The informant] had agreed to buy methamphetamine using government money. . . . We believe this evidence of the relationship between [the informant] and the Task Force agents establishes [the informant's] implied consent. Accordingly, the agents' search of the packages did not violate Williams' constitutional rights as sender of the package. (my underlining added) I think there is an easy distinction to be made between the Fourth Circuit case, Williams, and this case; namely, that the DEA owned the post office box in Williams, or had control over it, which makes it easier to jump to the implied consent conclusion - i.e. the informant knew the mail would arrive there and it was not his personal mailbox (so the assumption that the DEA would open it would be clear). Here, the box was intercepted without the knowledge of the informant, without his consent, and in route, instead of at the point of delivery (where the reasonable expectation of privacy ends, per the courts own reasoning). So the court must leap from CS acting as an agent --> assumption that he would consent to interception --> interception was OK prior to delivery (but still during the time that the court concedes there is a reasonable expectation of privacy in the package). I don't think the distinction above is a condemnation of the opinion, but more a "why include such a long section of dicta which weakens the argument?" If the case really can be resolved on grounds of standing, it is against notions of clarity and narrowness of holding to even include this discussion in the opinion.
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