Englewood Criminal Law Attorney Blog

Ninth Circuit Rules on Computer Fraud and Abuse Act

2012-04-16T20:39:07Z

In a 9-2 decision, California's 9th Circuit Court of Appeals has ruled that prosecutors are too broadly applying the 1984 Computer Fraud and Abuse Act in going after someone who violates employer computer policies or a website's terms of service; the majority upheld the decision of San Francisco U.S. District Court judge in the government's case against David Nosal, a former employee at an executive search firm who allegedly asked colleagues to access a confidential database to get information for his new business.

http://www.mdavidlindsey.com/Computer-Crimes/

The CFAA statute was passed by the U.S. Congress in 1986, and was intended to address federal computer-related offenses such as hacking. It has been amended repeatedly in an effort to keep up with advances in technology and security, most recently, as part of the Patriot Act and the Identity Theft Enforcement and Restitution Act.

Writing for the majority, Chief Judge Alex Kozinski said, "The government's construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer. This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime." The majority is following the 9th Circuits controlling case, LVRC Holdings LLC v. Brekka, and holds that "exceeds authorized access" as defined by the CFAA is limited to violations of restrictions on access to information, and not restrictions on its use.

The two dissenting judges point out that the statute requires "intent to defraud", and that intent was clearly present. "This case has nothing to do with playing sudoku, checking email, fibbing on dating sites, or any of the other activities that the majority rightly values," Judge Barry Silverman wrote, with Judge Richard Tallman joining. "It has everything to do with stealing an employer's valuable information to set up a competing business with the purloined data, siphoned away from the victim, knowing such access and use were prohibited in the defendants' employment contracts."

http://www.mdavidlindsey.com/Computer-Crimes/Hacking-Illegal-Access.shtml

There are other laws the government can use to prosecute someone who steals confidential information; interpreting the CFAA too broadly essentially leaves individuals at the mercy of a local prosecutor. And while the opinion breaks from 5th and 11th Circuit Court decisions in similar cases, it remains to be seen whether prosecutors will seek high court review.

New Wyoming Insurance Fraud Legislation Signed into Law

2012-04-03T18:57:59Z

The Wyoming State Legislature has approved a bill intended to target insurance fraud by allowing law enforcement to speak to insurance companies without first getting a subpoena. It also allows insurers to communicate more openly with law enforcement, giving them immunity when dealing with law enforcement agencies.

http://www.mdavidlindsey.com/Practice-Areas/Fraud-Crimes.shtml

A more broadly worded version of the bill that included a "whistle-blower" provision was scrapped in favor of this narrower version because of what Rep. Kermit Brown (R-Laramie) called constitutional concerns. The 2011 version of the bill would have provided civil immunity for anyone who gave information about insurance fraud or unfair trade practices, which would have presented potential problems. This version, which Brown called "the most succinct version we considered", is limited in scope only to communications between insurers and law enforcement. Because law enforcement does not need to demonstrate probable cause and obtain a subpoena, the insurance industry feels that schemes will be far easier to detect and prosecute.

Wyoming was one of only four states without such a provision on the books. The previous law provided protection only to the Wyoming State Insurance Commissioner in order to speak with insurers about suspected cases of fraud. All other communication was barred.

http://www.mdavidlindsey.com/Attorney-Bio/

According to the Property Casualty Insurers Association of America (PCI), insurance fraud costs the average American family between $400 and $700 a year in order to cover these losses. Just last month, the New York Police Department made several dozen arrests in an auto insurance scheme; the crime ring is alleged to have stolen nearly $300 million by exploiting a loophole in the state law which allows both drivers and passengers to receive benefits of up to $50,000 per person for injuries incurred in an auto accident.

Federal Sentences Vary Widely, But Are Not Politically Biased

2012-03-14T15:45:58Z

In federal sentencing law news, the Associated Press reports that federal judges are handing out a wide range of sentences for similar crimes, according to an analysis by the Transactional Records Access Clearinghouse of sentencing records; the study shows that the judge's political party doesn't uniformly dictate those differences.

http://www.mdavidlindsey.com/Federal-Crimes/Federal-Sentencing-Law.shtml

A study commissioned by the AP analyzed sentencing data from the last five years; sentences for the same types of crime often vary substantially between judges in the same courthouse. The study showed that the judges who hand out the harshest sentences for the three most common types of crime - drugs, weapons, and white-collar charges - are evenly split between the two parties, depending on which president appointed them.

In an effort to avoid these disparities in sentencing, Congress passed the 1984 Sentencing Reform Act; a commission was formed to establish guidelines for judges to follow as then handed out punishment, using comparable criminal history and other factors to make the sentences more uniform. In 2005, the Supreme Court struck down the law's requirement that judges adhere to these guidelines; judges must still calculate the guidelines using numeric values for factors like the seriousness of the crime and the defendant's record. But judges are in no way forced to hand down a sentence based on the results of this calculus. A federal judge has total discretion over the length of the sentence, or whether the defendant should be imprisoned at all.

"I think judges try to be bound by the facts, bound by the jury and bound by the law," says federal court expert Russell Wheeler. "Sentencing is the one area where the law doesn't constrain them very much."

The TRAC plans to make this sentencing data available to the public, so that criminal defense attorneys will no longer have to rely on anecdotal information about a specific judge handling their case. TRAC co-director David Burnham is a former investigative reporter for the New York Times, whose articles on police corruption in the '70's inspired the Al Pacino film "Serpico". Burnham feels strongly that defendants should have access to this information.

Supreme Court Search and Seizure Ruling In Use of GPS

2012-03-05T17:10:15Z

In a landmark ruling regarding privacy rights and search and seizure, the Supreme Court of the United States has suggested that law enforcement get a warrant before physically attaching GPS monitoring devices to a suspect's vehicle. While the ruling was unanimous that police had violated the suspect's Constitutional rights, the rationale for that decision divided the Justices.

http://www.mdavidlindsey.com/Drug-Crimes/Drug-Search-and-Seizure-Law.shtml

The majority opinion held that the placement of the device on private property constituted the violation, thereby avoiding the more profound questions raised by the development of new technologies that our Founding Fathers couldn't have foreseen.

"We hold that the government's installation of a G.P.S. device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,' " Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

"It is important to be clear about what occurred in this case," Justice Scalia went on. "The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

Justice Samuel Alito, writing in a concurrence for Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, took exception with the majority's attempts to apply 18^th century legal concepts to 21^st century technologies.

"The use of longer term G.P.S. monitoring in investigations of most offenses impinges on expectations of privacy. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark," Justice Alito wrote. "Other cases may present more difficult questions."

Justice Sotomayor, who joined the majority opinion, indicates that she would have joined Alito's instead had he addressed more than the private property issue raised in this case. Her opinion hints at the broader questions of privacy and search and seizure that the court will likely face in the future. "It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers," she wrote. "I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year."

Criminal Defense News: Supreme Court Reverses Murder Conviction

2012-02-29T16:47:52Z

In an 8-1 ruling favorable to criminal defense, the Supreme Court has reversed a New Orleans murder conviction based on so-called "Brady Violations" by the prosecutors in the case. Chief Justice Roberts delivered the opinion, in which all the Justices except Justice Thomas joined him.

Juan Smith was convicted on five counts of first-degree murder, based on the testimony of a single eyewitness. During post-conviction relief proceedings, the defendant obtained police files in which the eyewitness contradicted that testimony. Smith argued that disclosure of these facts after the trial constituted a "Brady Violation" on the part of the prosecutors.

The decision refers to the landmark 1963 Brady v. Maryland case, in which the Supreme Court determined that withholding evidence from a defendant constitutes a violation of the Due Process Clause of the 14^th Amendment. The court held that withholding "exculpatory evidence" (evidence which might clear a defendant) violates due process "where the evidence is material either to guilt or to punishment." "Brady evidence" includes statements of witnesses or physical evidence that contradicts the prosecution's witnesses.

Justice Thomas, the lone dissenting opinion on the court, held that the defendant had not shown a reasonable probability that the jury would have reached a different conclusion if it had been made aware of the undisclosed statements.

The New Orleans district attorney's office has an unfortunate history of such violations of due process, obtaining at least a dozen convictions that were later ruled to have been tainted by Brady violations.

In the 5-4 decision, Justice Ruth Bader Ginsburg wrote the dissenting opinion:

"The conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical.

From the top down, the evidence showed, members of the District Attorney's Office, including the District Attorney himself, misperceived Brady's compass and therefore inadequately attended to their disclosure obligations. Throughout the pretrial and trial proceedings against Thompson, the team of four engaged in prosecuting him for armed robbery and murder hid from the defense and the court exculpatory information Thompson requested and had a constitutional right to receive. The prosecutors did so despite multiple opportunities, spanning nearly two decades, to set the record straight. Based on the prosecutors' conduct relating to Thompson's trials, a fact trier could reasonably conclude that inattention to Brady was standard operating procedure at the District Attorney's Office.

What happened here...was no momentary oversight, no single incident of a lone officer's misconduct. Instead, the evidence demonstrated that misperception and disregard of Brady's disclosure requirements were pervasive in Orleans Parish. That evidence...established persistent, deliberately indifferent conduct for which the District Attorney's Office bears responsibility."

http://www.mdavidlindsey.com/Practice-Areas/Violent-Criminal-Offenses.shtml

Past Drug Charges Follow Convicted Felons

2012-01-24T17:47:57Z

In a New York Times op-ed this last week, contributors Alfred Blumenstein and Kiminori Nakamura detailed the struggles faced by convicted felons as they try to move on with, and improve, their lives. Past drug charges follow these defendants long after they serve their time.

They cite the story of Darrell Langdon as an example; Mr. Langdon found that he could not get a job as a boiler room engineer for Chicago Public Schools because of a 1985 conviction for possession of a half-gram of cocaine, a felony for which he received, and served, probation. Mr. Langdon, a single father who has remained clean and out of trouble with the law since 1988, was offered a job after a story in the Chicago Tribune raised a public outcry.

Langdon's story is the exception, however; according to the authors, a "stunning number of young people are arrested for crimes in this country, and those crimes can haunt them for the rest of their lives". A felony conviction can mean exclusion from public housing and welfare assistance, leading to poverty and a life on the streets, and increasing the likelihood of recidivism. The majority of states even allow hiring decisions to be made on the basis of an arrest alone.

Many of these arrests are a result of the ongoing war on drugs, which disproportionately targets young men of color. The real problem, the authors claim, is state and local rules that restrict employment for the rest of an individual's life. They propose that these "forever rules" be replaced by rules that provide for an expiration of a criminal record. A number of states have already placed limits on the availability of old criminal records; a new Massachusetts law, which takes effect in May, will limit access to misdemeanor records for five years, and felony records for ten.

At my Denver law firm, I represent people facing serious criminal charges in state and federal courts throughout Colorado and Wyoming.

http://www.nytimes.com/2012/01/10/opinion/paying-a-price-long-after-the-crime.html?_r=1

GPS Monitoring of Automobile to be Decided by Supreme Court

2011-11-22T17:59:23Z

Have advances in technology led to potential invasions of privacy by law enforcement? This question will be taken up by the nation's highest court this term, in the case United States v Jones, where a GPS tracking device placed on a suspect's car without a warrant.

The court has long maintained that people should have no expectation of privacy while in public; police surveillance is an accepted manner by which law enforcement collects evidence. Does the placement of a tracking device on a vehicle cross the line? The Jones case will address not only whether the placement of the GPS device on the outside of the vehicle without a warrant qualifies as a "search", but also whether such intensive monitoring is by definition more intrusive than conventional surveillance.

"The Jones case requires the Supreme Court to decide whether modern technology has turned law enforcement into Big Brother, able to monitor and record every move we make outside our homes," said Susan Freiwald, a law professor at the University of San Francisco.

Courts have not required law enforcement to obtain warrants in order to put a "tail" on a suspect, or to perform a "stakeout". The court must decide if the use of GPS technology is a simply a way to do this kind of surveillance more cheaply, or if as the lower court unanimously ruled that the government was trying to obtain too much information.

For more information on search and seizure law see my website at: http://www.mdavidlindsey.com/Drug-Crimes/Drug-Search-and-Seizure-Law.shtml

Recorded Jail Phone Calls May be Used in Court

2011-10-25T18:43:06Z

The Second Circuit of the U.S. Court of Appeals has ruled that an inmate's phone call to relatives with instructions for his attorney does not fall under the protection of "attorney-client privilege". The court has found that, because the inmate knew that his calls were being recorded, he did not have a "reasonable expectation of confidentiality", and that he could have contacted his attorney directly without being monitored.

The ruling upheld the trial judge's decision to allow the inmate's recorded calls to be admitted into evidence by the prosecution, who sought to prove the inmate's "consciousness of guilt" of the drug crimes for which he stood accused.

The prosecution maintained that, when Joel Rodriguez phoned his sister and gave her instructions to pass along to his defense attorney regarding his desire to plead guilty to drug charges prior to indictment, he did so with full knowledge that the conversation would be recorded. Because the sister was not a "necessary intermediary", they argued that privilege was not applicable.

Defense attorneys argued that, because the conversation dealt with "key attorney duties" such as plea negotiations, it was covered by attorney-client privilege. The appeals panel disagreed, and felt that the inmate should have contacted his attorney directly, or simply asked his sister to convey a message to the attorney stating that he wished to discuss a plea.

Medical Marijuana: New Federal Drug Crime Push

2011-10-07T19:48:47Z

CNN is announcing a new federal drug crimes initiative by various United States Attorneys offices in California. According to reports, the Federal Government intends to begin using various federal prosecution tools to target the "large, for-profit marijuana industry". The article states: "Four U.S. attorneys -- Benjamin Wanger, Andre Birotte Jr., Laura Duffy and Melinda Haag -- detailed in a joint press release steps they had taken in conjunction with federal law enforcement and local officials in California."

The enforcement actions apparently will include:" civil forfeiture lawsuits against properties involved in drug trafficking activity," letters of warning to landlords and lien holders of places in which marijuana is being sold illegally and several criminal cases. The CNN article is here. http://www.cnn.com/2011/10/07/justice/california-marijuana/

This is a disturbing development from an administration headed by a president who campaigned in 2008 for the federal legalization of marijuana. It is unclear how this new initiative will play out in Colorado. Colorado has a much more regulated medical marijuana industry than California, but the language of the US Attorneys press release is very concerning for dispensary owners here in Colorado. Another concern is the vast amount of resources likely to be spent by the federal government prosecuting an issue the voters of various states have voted for.

More information about federal prosecutions of drug crimes can be found on my website.

Emailing Your Attorney From a Work Computer May be a Bad Idea

2011-10-06T16:57:26Z

Emailing your attorney from a work email address may not be a good idea, according to a recent ethics opinion from the American Bar Association. In a recent interview on NPR, legal ethics expert Diane Karpman outlined the conflicts between attorney-client privilege and an employer's expectation of access to their employees' correspondence.

"Clients have an amazing privilege in the United States that anything they tell their lawyer will forever remain confidential. But they cannot be cavalier or casual with that amazing privilege. So, say if you were in Yankee Stadium and you had a talk with your lawyer, and everyone is listening in. Well, then you couldn't claim privilege because you didn't have an expectation of confidentiality. And that is the basis of the privileges that you expected, or you believed it would be privileged."

Using an account owned and managed by an employer leaves the client vulnerable, according to Karpman. The employer may obtain any communication between the client and the attorney done through such an account, and courts have been allowing the communication into evidence. In cases where an employee uses a private account, such as Gmail or Yahoo, but accesses it on company-owned equipment, the courts are carefully assessing various factors, such as who owns the server. Since an employer would not be expected to know an employee's account information and passwords on a privately held account, that communication would be more difficult to get admitted into evidence.

Karpman recommends caution when communicating with your attorney from your place of work, especially when company policy stipulates that employee emails are not confidential. "With all the warnings that you got, it was almost as if you were consulting with your lawyer in the employee lunchroom over a microphone, in a loud voice, with the door wide open."

Colorado sees rise in new type of sex crime

2011-09-30T18:39:51Z

According to authorities, a relatively new type of sex crime seems to be on the rise in the Denver area: upskirting, or taking pictures up women's garments without their knowledge or consent.

Perpetrators of this sex crime may believe that it is harmless and that no one is getting hurt. While it is true there are no apparent physical effects, there are emotional wounds and of course, those can cut very deep. Interestingly enough, a clinical therapist who has been working in Colorado for 16 years recently said she believes that the act can lead to the perpetration of worse sexual crimes. She insists that the crime is as serious as sexual assault.

]]> Neither the therapist nor a national victim's rights group could provide statistics for the crime in Colorado. This is because it is perpetrated very furtively. Many individuals have gotten away with upskirting without the victim ever knowing and most have done so more than once. Some convicted offenders have said that they have performed the act more than 100 times. With the advent of modern technology, many of these images can easily end up on the Internet. Some are saying that because of cell phone cameras, the act is being perpetrated more often.

One man in Littleton, Colorado who was suspected of upskirting recently admitted to the crime in court. He had been going to local grocery stores for two to three months and taking intimate and unknown photographs of women with his cell phone camera. Security officials managed to observe the acts on camera. Situations such as this show that, in many cases, upskirters are not usually caught on their first attempt. When the thrill diminishes, many of these offenders turn to worse sex crimes.

Once again, people who perpetrate this act may think they are not doing anything wrong. But of course, they are and might find themselves in a lot of hot water if they are caught. In circumstances like that, the services of a criminal defense attorney may prove very valuable.

Source: KUSA-TV, "Upskirting cases on the rise," Lori Obert and Jeremy Jojola, Sept. 16, 2011

Colorado marijuana dispensary is scene of alleged 12-hour robbery

2011-09-21T15:41:00Z

In Norwood, Colorado, two to three men allegedly raided a medical marijuana dispensary. According to police reports, the men held three individuals against their will by binding them with duct tape and threatening to kill them if they tried to contact the police. All three victims were subjected to multiple forms of assault. The alleged robbers took thousands of dollars and a large amount of marijuana. According to the men who were stolen from, both robbers were carrying what they believed to be automatic weapons.

Two of the men who were attacked recalled the incident to the police. One of the men had recently fallen asleep. He awoke to a dog barking and went outside to see what the noise was about. As he did so, he was confronted by the two alleged robbers. He said they were dressed in hunting gear and wore masks over their faces.

]]> The man said they held him to the ground and pulled his roommate from their house. As they were being bound, the men said they were beaten and their lives were threatened. Soon, a woman who was friends with the two roommates showed up at their home. They were yelling for her to leave, but she did not hear them, and the alleged robbers restrained her as well.

While one gunman watched the three, the other man was busy using the roommates' vehicles to transport money and marijuana to an unknown location. The incident reportedly lasted approximately 12 hours. Eventually, the gunmen left because one of the victims had managed to free himself. The men reported to the police after they escaped, with broken duct tape still around their wrists. Police believe they have enough evidence to catch the alleged assailants but have still offered a $1,000 reward for their whereabouts.

Incidents like this one show just how seriously Colorado police take matters of assault and robbery. In this particular case, they are offering a reward, meaning that many people in nearby communities will likely be looking for the alleged robbers. Experienced criminal defense attorneys understand how frightening a situation like this can be. If you know that police are looking for you, speaking to a Colorado defense attorney may be helpful in making sure you understand your rights and options.

Source: Montrose Daily Press, "Armed robbery suspects still at large, reward offered," Matthew Beaudin, Sept. 9, 2011

7 arrested in Colorado for alleged participation in drug ring

2011-09-14T15:06:58Z

Seven people have been arrested in Alamosa, Colorado, after allegations of involvement in a serious drug crime. The individuals were allegedly part of a drug trafficking ring in the San Luis Valley. The ring was allegedly designed to deliver methamphetamine and cocaine to individuals in the area.

Investigators with the Alamosa Police Department, the Alamosa Parole Office and the Colorado State Patrol uncovered the ring earlier this year. With the help of the Drug Enforcement Administration, they received warrants for the arrests of the seven individuals. The arrested suspects range in age from 26 to 52. The majority of them are from Alamosa, and all seven have been charged with the distribution of methamphetamine, cocaine or both. Most of their bonds have been set at $50,000. Some have bonds set higher at $75,000.

]]> Law enforcement officers are searching for one more person, a 28-year-old that is believed to be involved with the ring. If caught, he will also face charges of methamphetamine distribution. He is also from Alamosa.

During the execution of their search warrants, police allegedly found nearly three pounds of methamphetamines. They also reportedly uncovered more than a pound and a half of cocaine. According to police, the street value of these unsold drugs is more than $150,000. The search warrants also led police to the confiscation of three rifles, a stun gun, two vehicles and a handgun. They also found a bullet-proof vest and an undisclosed sum of money. If convicted, the individuals allegedly involved will likely face jail time.

This case is yet another example of how seriously Colorado authorities take drug crimes. However, it is important to remember that not everyone accused of a drug crime is guilty. For example, if police did not have a search warrant, any evidence uncovered in a search may be suppressed. Those who have found themselves charged with a drug crime may find it helpful to speak with an experienced defense attorney.

Source: KRDO, "San Luis Valley Drug Bust," Sept. 1, 2011

Colorado boy accused of killing parents sent to juvenile detention

2011-09-07T19:39:16Z

A 13-year-old boy from Burlington, Colorado, has been accused of shooting his parents and stabbing two of his younger siblings. The parents were found dead in March, and the two siblings were severely injured but managed to survive.

The 13-year-old boy, whose name has not been disclosed because of his age, has decided to plead guilty to the murder of his parents. The district attorney said that because the boy had no history of criminal activity, he will not be charged as an adult. This eliminated any possibility that he would be sentenced to life in prison.

]]> Instead, the boy, who was 12 when he allegedly killed his parents, was sentenced to seven years in juvenile detention after he was examined by two different psychologists. After he has served seven years, he will undergo another evaluation, which will determine whether he will be released from detention or held for two more years.

At this time, the reason behind the March events is not clear. Information on the boy's psychological evaluation cannot be released to the public.

While some members of the boy's extended family are unhappy with the sentence he received, it is not entirely surprising based on the history of juvenile crime in Colorado. According to reports, the last time a 12-year-old was put in prison as an adult was in 1897. The juvenile court system in Colorado had not been created yet.

The juvenile court system exists to give young people who have committed a crime a second chance. It can help provide these children the resources they need to turn their lives around and go forward as productive citizens.

Source: FOX31, "Plea deal means boy will plead guilty to killing his parents," Dave Young, Aug. 26, 2011

New Case May Impact Preparing to Defend a Case

2011-09-06T20:04:11Z

A New Jersey Supreme Court ruling is expected to have a far-reaching impact on the way a criminal case is tried in this country, and may also have a big impact on preparing to defend a case. The court has called into question the way in which traditional eyewitness identification procedures have been used in trial. Citing decades of research that proves those methods have flaws and can result in the imprisonment of innocent people, the court has called for the rules to be reworked.

New guidelines would make it easier for defendants to challenge witness evidence in criminal cases, and would impose consequences on investigators who pressure witnesses to make flawed identifications. The process of witness identification would be videotaped so that the defense attorney could review it in preparing to defend a case, and the court could examine it for errors in procedure.

The Denver Police Department has already adopted new measures similar to those outlined by New Jersey Court, such as requiring that someone not directly involved in the case and therefore unfamiliar with the suspects conduct lineups. The Aurora Police Department, however, has not instituted any new procedures, since there has been no state mandate to do so.

Other courts are expected to take up the issue, and the United States Supreme Court is set to hear arguments on the identification question in November, for the first time since 1977.