Wednesday, May 4, 2016

SANE nurse is member of prosection team for Brady purposes

Q: Who's a member of the prosecution team for Brady purposes?

A: A SANE nurse who examines the complainant "at the request of law enforcement in the pre-arrest investigation of a crime."

So held the Tenth Circuit earlier this week in McCormick v. Parker, No. 14-7095 (10th Cir. May 3, 2016), reversing a 28 U.S.C. 2254 petitioner's state conviction for child sexual abuse and accompanying life sentence.

The nurse in this case falsely testified that she was currently certified as a SANE nurse in Texas. The Tenth Circuit imputed her lie to the prosecution despite zero evidence that the prosecutor actually knew about the nurse's lapsed credentials. The lie was material because this "expert" provided the only direct evidence to corroborate the complainant's testimony.

You must try harder. It is not easy to become sane. - George Orwell

Monday, May 2, 2016

Extorting an Extortion Co-Conspiritor: Ocasio v. United States

Today a divided Supreme Court rejected a challenge to a conspiracy "under color of official right" to commit a Hobbs Act  extortion. In this Baltimore-based case, a group of policemen, including Officer Ocasio, had a deal with a local auto repair shop. When investigating a vehicle accident, they would recommend the car be taken to Majestic Auto Repair Shop. In return, Majestic paid the cops a cut. In some circles, this is known as a kickback.

In Ocasio v. United States, the challenge was to the extortion statute, which prohibited, inter alia, a conspiracy to "obtain money from another." Ocasio argued the "another" had to be someone outside the conspiracy. Justice Alito, writing for the majority, seemed to recast the issue (or "ultimately clarified") to focus on "the basic principles of conspiracy law," which he drew very broadly.  The majority concluded, "It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense." Here, the conspirators shared a common criminal objective of obtaining money from another, even if "another" was a co-conspirator.

The varying opinions hinge on whether to hew to precedent, Evans v. United States, that essentially equated extortion with briberyJustice Breyer concurred with Ocasio's majority, but noted that the issue the Court decided was not fully briefed and the question of whether Hobbs Act extortion is "roughly the same" as taking a bribe was "exceptionally difficult." In the end, Justice Breyer bowed to Evans. Justice Thomas, though, dissented, challenging Evans and denigrating the incongruous majority holding that "an extortionist can conspire to commit extortion with the person whom he is extorting."

Then Justice Sotomayor dissented, joined by the Chief Justice; she, too, nailed the "unnatural outcome" of the majority opinion: "If a group of conspirators sets out to extort 'another' person, we ordinarily think that they are proposing to extort money or property from a victim outside their group, not one of themselves. Their group is the conspiratorial entity and the victim is 'another' person."

As Scotusblog notes, this opinion may raise more questions than answers for extortion prosecutions, and that the underlying issues of federalism were not really addressed or resolved.

Sunday, May 1, 2016

Out-of-District Warrants and the Stored Communications Act

Can a magistrate judge issue a warrant to seize data from a private email account held in another district? No. Neither the Stored Communications Act nor Federal Rule of Criminal Procedure 41, at least as currently written, authorize a judge in one district to issue a warrant to be served in another district. This was the ruling issued last week in United States v. Barber, D.Kan. 15-cr-40043-CM.

In Barber, an FBI agent obtained a search warrant from a District of Maryland magistrate judge to seize the content of the defendant's email account. The information was in the possession of Google Inc. and stored in California. "Special Agent O’Donnell testified in court that he believed he was able to ask any court with jurisdiction over a particular violation to issue a warrant when he was investigating email accounts without knowing where the account users were located." The defense challenged this warrant as unauthorized by federal law.

The Kansas district court first addressed standing. The defendant had an expectation that the contents of his email account were private (although that expectation did not extend to emails sent to another account, a standing issue still in dispute among the lower courts). The Court then turned to the warrant's validity. First, Rule 41: The Maryland magistrate court exceeded its authority "by issuing a warrant for a search outside his district. Rule 41(b) gives a magistrate judge authority to issue a warrant for a search and seizure of property located within the district."

The second question was whether the Stored Communications Act, found at 18 U.S.C. § 2703(a), authorized the warrant. The SCA did not authorize the out-of-district warrant. "The problem with utilizing the SCA to provide the jurisdiction the Maryland magistrate judge needed to issue the second warrant is this: The government presented no evidence that the offense being investigated occurred in Maryland. Courts that have interpreted the language 'jurisdiction over the offense being investigated' have held that Congress intended it to mean territorial jurisdiction over the offense—not general jurisdiction over all federal criminal offenses."

Without authorization for the warrant, the issue became one of remedy. The statute provides no recourse for government violations. But an unauthorized warrant still has constitutional ramifications. Warrants issued without jurisdiction are void. And a "warrant that is void from its inception is no warrant at all." Accordingly, the Court found this warrantless search violated the Fourth Amendment.

The next question, then, was whether the good-faith doctrine saved this unconstitutional search. Again, the answer was no. Because this warrant was never authorized by law, it was void at its inception. There "was no warrant at all."  The good-faith doctrine does not apply when there was no warrant. The Court then ordered that the evidence seized from the defendant's home, based on probable cause generated by the unlawful search of his emails, must be suppressed. And that is the Barber decision.

Back to Rule 41. The Court was specific: the Rule does not authorize a magistrate judge to issue warrants to be executed in another district. But now the Supreme Court has moved to expand the reach of Rule 41. This amendment, proposed to Congress by Chief Justice Roberts, would allow magistrate judges to issue a warrant to "hack into and seize data stored on a computer, even if that computer’s actual location 'has been concealed through technical means,'" as described by  The Atlantic (The Supreme Court Expands FBI Hacking Powers). "In other words, under the new rule, a judge in California could approve a warrant allowing federal agents to lawfully hack into a computer without knowing its true location, whether it be New York, Budapest, or one of Jupiter’s moons." This has generated some controversy in Congress, but absent a vote to override the Supreme Court's proposal, the change will take effect December 1.

Thanks to Branden Bell, who litigated this issue on behalf of Mr. Barber.

Monday, April 25, 2016

Beware of magistrates issuing Trojan Horse warrants

Federal magistrates have no authority to issue warrants for searches of property outside of their judicial districts. A warrant purporting to authorize the government to send a Trojan Horse to the computers of a Tor website's users, regardless of district, generating a return of identifying information, is a warrant for a search of property outside the judicial district. A magistrate has no jurisdiction to issue such a warrant.

Such a magistrate-issued warrant is void ab initio---"akin to no warrant at all"---and Leon's good-faith exception to the exclusionary rule does not apply.

So says Reagan-appointed Massachusetts District Court Judge William G. Young, in a Memorandum and Order issued last week suppressing eight child-pornography files.

Some of the fun bits:

The government argued that the property searched was in fact in the magistrate's district, since the identifying information was returned to a server in that district. The court rejects this argument as "nothing but a strained, after-the-fact rationalization."

The government argued that Rule 41 ought to be read to allow the warrant here, out of necessity, since it was impossible to know in advance where the property to be searched was located. The court rejects this argument "because it adds words to the Rule."

In a footnote, the court "expresses no opinion" on the government's tactic of actively running a child pornography website for two weeks, but notes the "continuing harm" of disseminating child pornography---which is what the government did here.

The court questions whether this warrant to search unknown locations would have passed muster under the Fourth Amendment's particularity requirement.

Wednesday, April 20, 2016

Appellate & habeas lawyers heart SCOTUS

I [heart] SCOTUS Dog T-Shirt
At least today we do, after two defendant-friendly opinions issued by the High Court this week.

In Molina-Martinez v. United States, the Supreme Court unanimously held that a district court's guideline-calculation error will in most cases in and of itself satisfy the "affected substantial rights" prong of plain-error review on appeal.

But wait, there's more! The case includes some interesting discussions of post-Booker sentencing, guideline anchoring, and the future of guideline practice. It is, as Professor Berman says, "a must read for all sentencing practitioners."

In Welch v. United States, the Supreme Court held 7-1 that the opinion in Johnson invalidating the residual clause of the ACCA is a new substantive rule that applies retroactively in collateral proceedings. This is great news for clients serving unconstitutional sentences who may be on their second or successive habeas petitions. Welch is also a lesson in certificates of appealability. Even if you're not a Johnson junkie---if you do federal habeas work, you'll want to read Welch.

Sunday, April 17, 2016

Oh guidelines, how did they amend thee? Let me count the ways . . .

Last week the Sentencing Commission passed a variety of guideline amendments that will come into effect on August 1, 2016, unless Congress acts to the contrary.

Compassionate release just got more compassionate (which may not be saying much), with new, broader criteria for release. The amendments also encourage BOP to do its part in requesting release for eligible inmates.

Conditions of probation and supervised release are now clearer. Remember those Tenth Circuit cases rejecting vagueness challenges to standard conditions of release? The Sentencing Commission isn't buying it. Taking its cue from the Seventh Circuit, which has found several standards vague, overbroad, or lacking a required mens rea, the Commission has revised the standard conditions with an eye toward making them "more focused and precise as well as easier for defendants to understand and probation officers to enforce."

The child-pornography guideline is now even harsher---at least in cases involving portrayals of "an infant or toddler," which now get a 4-level bump. On the other hand, the Commission sides with the Seventh and other Circuits over the Tenth and other Circuits in resolving a circuit split over the 2-level file-sharing enhancement. The amendment states that this enhancement only applies if the distribution was "knowingly" done.

The illegal-reentry guideline has (for the most part) done away with enhancements based on prior "crimes of violence," replacing them with enhancements based on the sentence imposed for prior felony convictions. No more categorical quandaries---but will it help your client? This amendment is expected to increase some sentences while decreasing others. You'll want to take a close look before you pick your book for sentencing.

The animal-fighting base-offense level now tops out at 16 instead of 12. This increase was in part a response to nearly 50,000 signatures on a form ASPCA letter from animal lovers---the most public comment on any amendment in the history of the Commission. Query: Do public comments count as "empirical evidence" in support of a guideline amendment?

There are more amendments, and more details about the above amendments, than there is room to write about here. Check them out at the above link, and plan your sentencing strategy accordingly.

Sunday, April 10, 2016

Email warrants: "Perhaps the time has come to reframe the discussion in terms of Americans' right to privacy."

Late last month, United States Magistrate Judge Waxse denied a government application for a broad email warrant under the Stored Communications Act (18 U.S.C. 2701, et seq.) and Rule 41 of the Federal Rules of Criminal Procedure, after finding that the application violated the Fourth Amendment's probable cause and particularity requirements.

It's a doozy of an opinion---a must read for anyone challenging a warrant for digitally stored information.

In the opinion, Judge Waxse traces the history of recent rulings across the country on similar warrant applications. He concludes that courts allowing warrants for all Electronically Stored Information (ESI) associated with a target email account have failed to give proper weight to the privacy rights of account holders. He explains that "[t]he chief aim of this Court's email (and cellular phone) opinions has been preventing the issuance of general warrants in the context of ESI." And he explores the concept of digital privacy in great detail, emphasizing that when it comes to ESI "[t]he privacy implications are enormous."

In the end, Judge Waxse insists on search protocols and limitations on the government's search of the requested information. He suggests a number of these (categorical limitations, keyword limitations, special masters, filter teams, use restrictions, etc.), and grants the government leave to resubmit its application along with a suitable search protocol.