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Child Pornography, Slack Space and “Possession”

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After a “general court-martial composed of officer and enlisted members convicted [Shane A. Nichlos] . . . of two specifications of knowingly possessing child pornography in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934”, and he was sentenced to “reduction to pay grade E–1, confinement for a period of six months, and a bad-conduct discharge”, he appealed. U.S. v. Nichlos, 2014 WL 4658951 (U.S. Navy-Marine Corps Court of Criminal Appeals 2014).  Nichlos raised four issues on appeal, but this post only examines two of them:  “that the military judge abused his discretion in failing to suppress evidence obtained from [Nichlos’] portable hard drive . . . based on an unconstitutional seizure; that his conviction for knowing possession of child pornography is legally and factually insufficient”.  U.S. v. Nichlos, supra. The Court of Criminal Appeals began its analysis of the issues…

But For Video: Extreme Compliance Edition

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Before anyone gets too worked up, the officer in the video, South Carolina Highway Patrol Officer Sean Groubert, 31, has been fired from his position and is being prosecuted for his actions. As the video has already gone viral, chances are pretty good you’ve seen it. But in case you live under a rock: That the stop was for a seatbelt violation, silly as that may be, really isn’t a material aspect of what followed.  As any cop will happily explain, when you make a vehicle stop, you never know what’s happening in the head of the driver. It’s the unknown they fear most. The incident began calmly enough. “Can I see your license please?” Groubert asked. But something quickly changed. As Jones turned around and reached into his vehicle, Groubert could be heard shouting, “Get out of the car! Get out of the car!” The officer then fired multiple times. What “quickly changed” seems obvious.  After being asked for…

Illegal Search & Seizures: Boston Criminal Defense Attorney

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The Fourth Amendment of the Constitution of the United States limits the power of the police to make arrests and conduct searches on individuals and their property. To honor the privacy of the individual, searches and seizures are considered to be unlawful and are dismissible in a court of law if they are deemed unreasonable.  However, there are certain exceptions within the 4th amendment that allow for searches and seizures to take place. Illegal Search and Seizures One exception to the 4th amendment is probable cause.  Under this exception, an officer who has evidence to believe a crime has or will be committed can conduct a search of a home or vehicle, especially in the event of an emergency. For example, if an armed suspect has disappeared into a neighborhood, a warrant may not be needed to search any home in that neighborhood. If no such evidence exists, the search is unlawful and any evidence collected is inadmissible in court.  However, under the plain…

Agency Law in New York Drug Cases

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Hypothetically speaking, suppose you are in college and your friend calls you up and says, “hey man, a couple of my friends and I are going to be hanging out tonight and we’d like to smoke a little weed, would you mind getting some for us?” Suppose further that you actually do this. Then when you show up at your friend’s place and you give him the marijuana that you just bought for him, it turns out that one your friend’s friends is an under cover police officer and he places everyone under arrest, including you. In fact, not only are you under arrest, but you are charged with selling the marijuana. Are you guilty? Under those facts, you are probably not guilty in New York of selling the marijuana. The reason that is true is because New York has a very progressive defense entitled “agency.” Basically, if you are involved in a transaction for illegal drugs, you are not guilty of selling the drugs if the government fails to…

Ohio Supreme Court: “All or Nothing” Defense Does Not Prevent Instruction On Lesser Included Offenses

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The case is State v. Wine, No. 2014-Ohio-3948. The Ohio Supreme Court has held that a defendant who presents an “all or nothing” defense in a criminal trial does not have the right to prevent a trial court from giving lesser-included-offense jury instructions. In this case, the defendant had been charged with rape based on the allegation made by his mother-in-law that the defendant had inserted his finger into her while she was sleeping.  She testified at trial that she had fallen asleep with one of the children after getting in bed with him to tell him a story. She awoke and saw the Defendant kneeling down at the side of the bed with his face very close to hers. The Defendant told the police that he remembered being in bed with his mother-in-law. He told the interviewer that he may have touched his mother-in-law. He also stated, “I may have touched her, I mean I almost think I did. But the truth is I thought it was my wife.” In a later…

Sex Abuse Conviction Overturned Due to Inadmissible Evidence

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An Illinois Court of Appeals reversed the conviction of an Illinois man on charges of criminal sexual abuse, finding that evidence of other sex crimes allegedly perpetrated by the defendant was inadmissible. Without that evidence, there was an insufficient basis for upholding the conviction. People v. Puccini The defendant, Leonard Puccini, was charged with criminal sexual abuse after allegedly spanking the bare bottom of a 12-year-old boy for his own sexual gratification. At trial, the court admitted evidence in the form of witness testimony from two older boys (now adults), both of whom alleged that Puccini sexually abused them in the 1990s (though he had not pulled their pants down and spanked them). Illinois law allows evidence of prior charges or accusations of criminal sexual abuse to be admitted at trial to show the defendant’s propensity for committing sex crimes. Evidence of other alleged bad acts is admissible only if the probative value of the evidence –…

U.S. Continues to Push Obstruction Charge Against BP Executive

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A grand jury in the Eastern District of Louisiana has issued a second superseding indictment against James Rainey, the BP executive who was first charged in November 2012 with obstructing Congress and making false statements in connection with his role in responding to the April 2010 explosion on the Deepwater Horizon. The new indictment elaborates on how Rainey allegedly misled Congress about the amount of oil flowing into the Gulf during testimony he provided to the House Subcommittee on Energy and the Environment and in a written response to the Subcommittee’s questions. In his communications with Congress, Rainey allegedly provided...

Man Charged with 4 DUIs Times in One Day

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Rhode Island Resident Charged for 4 DUIs in 30 Hours An unfortunate new DUI arrest record has been set – a resident of Rhode Island has been arrested for 4 DUIs in the span of 30 hours. The DUI spree began on Sunday evening. John Lourenco, 53, crashed his Dodge pickup into an SUV, which caused […] The post Man Charged with 4 DUIs Times in One Day appeared first on South Carolina DUI Defense Lawyers | Strom Law Firm, L.L.C..

Friday Open Thread

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Our last open thread is full. Here's a new one, all topics welcome. Civility required. [[ This is a content summary only. Visit my website for full links, other content, and more! ]]

"Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard"

FBI director disingenuous or ignorant to criticize smartphone encryption

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FBI chief James Comey criticized Apple and Google this week for new encryption added to their latest smartphone product offerings, declaring “he could not understand why companies would 'market something expressly to allow people to place themselves beyond the law.'”That statement is either a) utterly disingenuous or b) so ignorant and wrong-headed that it calls into question the man's competence to perform his job.Apple and Google aren't trying to thwart cops. Cops are exploiting security flaws that leave consumers open to identity theft, stalking and other third-party access to their data. And Director Comey would prefer to put consumers' data and finances at risk than make his agents work a little harder to prove their cases.Bruce Schneier summed up the conundrum thusly in a recent post: "We have one infrastructure. We can't choose a world where the US gets to spy and the Chinese don't. We get to choose a world where…

Could (and should) AG Eric Holder be even bolder on sentencing and drug war reform as a lame duck?

Wilmington OVI Checkpoint At US 22 Tonight!

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There will be a Wilmington OVI checkpoint tonight from 9 p.m. until midnight on US 22 just west of Progress Way in Wilmington.  Aggressive saturation patrols will also accompany the checkpoint. Stay ahead of the checkpoints!  If you want to receive updated information on sobriety checkpoints, enhanced traffic enforcement, saturation patrols and other important developments that affect you, sign up for text alerts on the main page of this blog. Text alerts will be sent directly to your mobile device/smartphone [Read the full post. . .]

Police arrest man accused of vandalizing numerous Jacksonville Beach businesses

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Police arrested a man this month, accused of painting graffiti on several local businesses in Jacksonville Beach. The man was arrested on two criminal mischief charges, according to a report in the Florida Times-Union. One charge is a second-degree misdemeanor, punishable by up to six months in the county jail. The second charge is a third-degree felony and carries a maximum penalty of five years in state prison. So what makes one instance a misdemeanor and the other a felony? The amount of damage done to the property. If the damage is less than $200, as was reported in one of these Jacksonville Vandalism Charges, the charge is a second-degree misdemeanor. If the damage is between $200 and $1,000, the charge becomes a first-degree misdemeanor and carries a maximum charge of one year in the county jail. But once it becomes more than $1,000, the charge is a felony and time in state prison is now on the table. The $1,000 threshold applies to whether the damage was more than…

News Scan

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Louisiana Teens Charged with Murder:  Police in New Orleans, have announced that the two 16-year-olds arrested in connection with Monday's murder of a pizza delivery driver were wearing GPS ankle monitoring devices at the time of the killing.  Tania Dall of WWL News reports that the teens are believed to have gunned down the delivery driver in a carjacking attempt Monday evening, police had been alerted that one of the teens had broken his monitoring restrictions and were waiting on an arrest warrant when the driver was killed Monday evening.  The court has yet to file charges, but it is expected that they will charge the teens as adults.Serial Killer Sentenced to Life in Prison: A California man convicted of murdering three women in the 1980's has been sentenced to three consecutive life terms without the possibility of parole.  CBS Los Angeles reports that 74-year-old Samuel Little was arrested and charged with the killings after DNA collected…

What Happens During the Bankruptcy 341 Meeting?

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A number of Georgian residents have been experiencing ongoing difficulty meeting their financial obligations due to the economic hardship our country has been suffering since 2008.  Because of these difficulties, many Georgians have decided to file bankruptcy in order to wipe their financial slate clean, or to greatly alleviate their debt burden. The bankruptcy process can be intimidating or seem complicated to a person who tries to undertake it on  [ Read More ] The post What Happens During the Bankruptcy 341 Meeting? appeared first on Law Office of Michael West P.C..

Barbara Lee Continues To Speak For Me

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That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons -- Authorization for the Use of Military Force ("AUMF")After the attacks of 9/11, Congress gave President Bush carte blanche to use military force.  Only one member of Congress -- one -- had the integrity, the courage and the wisdom to just say "no."  Congresswoman Barbara Lee -- my Congressperson I'm proud to say --warned her colleagues to be "careful not to embark on an open-ended war with neither an exit strategy nor a focused target" and explained that the AUMF "was a blank check to the president…

Costly Medical Marijuana Licenses Expected In Maryland

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Back in the spring when Maryland's revamped medical marijuana law passed the General Assembly it wasn't just the thousands of patients suffering from debilitating medical conditions that rejoiced. Hundreds of potential investors immediately began to salivate over potential profits from legalized pot here in Maryland. There are millions to be made on the business side of medical marijuana, and with twenty states already selling pot the profits are hardly speculative. At the first few meetings of the medical marijuana commission you couldn't find a parking spot or a seat, and the meeting room was filled to the brim with a mix of suit clad businessmen, dreadlocked hippies, and casually dressed visitors with unidentifiable motives. The meetings were moved from Baltimore to Annapolis to accommodate the larger crowds, but it seems there have been fewer potential investors in attendance as of late. Details about the application process have slowly trickled out to…

Gun Rights and Domestic Violence Convictions

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The post Gun Rights and Domestic Violence Convictions appeared first on Gregory & Waldo. As we have previously pointed out, a conviction for battery constituting domestic violence can have life altering consequences. Because this charge is a misdemeanor offense, most people are not aware of the exact consequences this charge can carry. While it is generally common knowledge that a convicted felon cannot own or possess a gun or firearm, it may come as a surprise to many to know that in Nevada, a conviction for battery constituting domestic violence will have the same consequence. If you are convicted of a misdemeanor domestic violence charge, you cannot own or possess any gun, firearm, or ammunition ever again, as long as the conviction remains on your record. Under federal law often referred to as the “Lautenberg Amendment”, it is illegal for anyone convicted of a domestic violence charge to own, carry, transport, or use firearms or ammunition. Since this is…

Burkoff on Law Enforcement Use of Drones

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John Burkoff (University of Pittsburgh - School of Law) has posted Law Enforcement Use of Drones & Privacy Rights in the United States (In Festschrift in Honor of Professor Doctor Feridun Yenisey (Beta Publishers, Istanbul, 2014)) on SSRN. Here is...
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