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Archive for November 18th, 2015

Supreme Court in December Will Hear Case on Texas Businessman Convicted of Illegally Accessing Protected Computer

US_Supreme_Court

By Ross Parker
ticklethewire.com

The only oral argument before the Supreme Court during the last month of 2015 on an issue involving criminal law or procedure is Musacchio v. United States. The case involves the conviction on three counts of a North Texas businessman for conspiracy and for making unauthorized access to a protected computer of a competitor (for which he was previously employed) through a back-door password. He was sentenced to 63 months in prison. The civil case for his conduct was settled for $10 million.

The case presents two issues:

  1. Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
  1. Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal?

Sounds like pretty dry stuff, huh? The kind of legal fare appetizing only to criminal lawyers and probably few of them. It, however, should present a meal of delicious irony during oral argument.

Stripped of its legal minutia, the fact is that both parties lapsed at the trial level on different issues and are now seeking appellate forgiveness under an application of the “plain error” rule. But each will want no such forgiveness for their opponent on the other issue. The government offers in addition a multitude of other reasons why the defense legal analysis is erroneous and, in any event, not applicable.

As to the first issue the statute permits alternative theories of proof for conviction. The evidence can establish that the defendant agreed to make unauthorized access (or made such access) or that he conspired to exceed authorized access (or actually exceeded such authorized access). The proofs in this case relied upon the former alternative both as to the conspiracy count and the two substantive counts.

The statute was properly charged in the indictment. But the trial judge, apparently in disregard of the government’s correct requests, presented the erroneous charge to the jury that the evidence had to be proven conjunctively (and) rather than disjunctively (or) as to the two alternative elements in the conspiracy count. The government did not object to the instruction, which it asserts was inadvertent and “clerical.” Now the government argues, among other things, that this was plain error which could be excused on appeal.

The defendant, however, relies on cases holding that the error waived appellate consideration and correction of the issue and that the appellate review of the sufficiency of the evidence requires proof of both alternative theories. Hence, the “law of the case” applies. And the Circuit Courts are somewhat split.

On the second issue, the tables are turned. The defendant, in effect, argues for forgiveness for his counsel’s failure to raise at trial the statute of limitations defense. This was plain error which can, in the view of some Circuit Courts, be raised on appeal. This time the government counters that the issue is not jurisdictional, unreviewable on appeal, and that the defendant waived the issue. And, again, there is some difference in the Circuits on the reviewability of this issue.

Of course few things that find their way to the Court are ever simple. The plain error/waiver rule for the two issues involves different rationales and case law threads. The Court could excuse both parties’ lapses, neither of them, or one and not the other. A decision behind door # 3 might seem anomalous to common sense, but there are a host of related arguments and sub-issues that bear on the analysis of the contexts of both questions.

Prediction: The government should win this round of the litigation. The jury found that both of the alternative methods of proof were established by the evidence, and it is weird to require the Court to, in effect, create a crime requiring both methods to review the sufficiency of the evidence just because the government didn’t object to a single erroneous instruction. As to the statute of limitations issue, the defendant should lose this one, also, since there is no reason to believe that the statute was intended to make the question jurisdictional. To make the question reviewable on appeal would prevent the government from raising factual issues at trial that could convince the jury to reject the claim.

However, in round # 2, the defendant will undoubtedly file a post-conviction, habeas corpus claim that his trial attorney rendered ineffective assistance of counsel in failing to file a statute of limitations objection. He could win a reversal of the conspiracy conviction although, unless he gets a re-sentencing, his concurrent sentence on one of the remaining counts makes it unlikely he will be home to watch the Dallas Cowboys games anytime soon.

Parker: Supreme Court in December Will Hear Case on Texas Businessman Convicted of Illegally Accessing Protected Computer

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

Ross Parker

Ross Parker

By Ross Parker
ticklethewire.com

The only oral argument before the Supreme Court during the last month of 2015 on an issue involving criminal law or procedure is Musacchio v. United States. The case involves the conviction on three counts of a North Texas businessman for conspiracy and for making unauthorized access to a protected computer of a competitor (for which he was previously employed) through a back-door password. He was sentenced to 63 months in prison. The civil case for his conduct was settled for $10 million.

The case presents two issues:

  1. Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
  1. Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal?

Sounds like pretty dry stuff, huh? The kind of legal fare appetizing only to criminal lawyers and probably few of them. It, however, should present a meal of delicious irony during oral argument.

Stripped of its legal minutia, the fact is that both parties lapsed at the trial level on different issues and are now seeking appellate forgiveness under an application of the “plain error” rule. But each will want no such forgiveness for their opponent on the other issue. The government offers in addition a multitude of other reasons why the defense legal analysis is erroneous and, in any event, not applicable.

As to the first issue the statute permits alternative theories of proof for conviction. The evidence can establish that the defendant agreed to make unauthorized access (or made such access) or that he conspired to exceed authorized access (or actually exceeded such authorized access). The proofs in this case relied upon the former alternative both as to the conspiracy count and the two substantive counts.

The statute was properly charged in the indictment. But the trial judge, apparently in disregard of the government’s correct requests, presented the erroneous charge to the jury that the evidence had to be proven conjunctively (and) rather than disjunctively (or) as to the two alternative elements in the conspiracy count. The government did not object to the instruction, which it asserts was inadvertent and “clerical.” Now the government argues, among other things, that this was plain error which could be excused on appeal.

The defendant, however, relies on cases holding that the error waived appellate consideration and correction of the issue and that the appellate review of the sufficiency of the evidence requires proof of both alternative theories. Hence, the “law of the case” applies. And the Circuit Courts are somewhat split.

On the second issue, the tables are turned. The defendant, in effect, argues for forgiveness for his counsel’s failure to raise at trial the statute of limitations defense. This was plain error which can, in the view of some Circuit Courts, be raised on appeal. This time the government counters that the issue is not jurisdictional, unreviewable on appeal, and that the defendant waived the issue. And, again, there is some difference in the Circuits on the reviewability of this issue.

Of course few things that find their way to the Court are ever simple. The plain error/waiver rule for the two issues involves different rationales and case law threads. The Court could excuse both parties’ lapses, neither of them, or one and not the other. A decision behind door # 3 might seem anomalous to common sense, but there are a host of related arguments and sub-issues that bear on the analysis of the contexts of both questions.

Prediction: The government should win this round of the litigation. The jury found that both of the alternative methods of proof were established by the evidence, and it is weird to require the Court to, in effect, create a crime requiring both methods to review the sufficiency of the evidence just because the government didn’t object to a single erroneous instruction. As to the statute of limitations issue, the defendant should lose this one, also, since there is no reason to believe that the statute was intended to make the question jurisdictional. To make the question reviewable on appeal would prevent the government from raising factual issues at trial that could convince the jury to reject the claim.

However, in round # 2, the defendant will undoubtedly file a post-conviction, habeas corpus claim that his trial attorney rendered ineffective assistance of counsel in failing to file a statute of limitations objection. He could win a reversal of the conspiracy conviction although, unless he gets a re-sentencing, his concurrent sentence on one of the remaining counts makes it unlikely he will be home to watch the Dallas Cowboys games anytime soon.

Federal Authorities Search for Human Smuggler Who Assaulted Border Patrol Agent

Martel Valencia-Cortez

Martel Valencia-Cortez

By Steve Neavling
ticklethewire.com

Federal authorities are on the hunt for a human smuggler who struck a Border Patrol agent in the face in southern California, the San Diego Union-Tribune reports. 

Authorities were moving in on a suspected smuggler who was helping 14 people navigate the hazardous terrain near Carries Mountain near Jacumba on Sunday night.

The suspect, Martel Valencia-Cortez, 39, is accused of throwing a large rock at Border Patrol agents, striking one of them in the face.

Valencia-Cortez returned fire but didn’t appear to injure him as he fled toward Mexico.

Agents arrested and interviewed the 14 people who were with Valencia-Cortez.

AG Lynch Says No Data Supports FBI Director’s Comments on ‘Ferguson Effect’

camera policeBy Steve Neavling
ticklethewire.com

Attorney General Loretta Lynch joined the debate over the so-called “Ferguson effect,” saying there’s no data to show that crime is on the rise because of criticism over police tactics, CNN reports. 

“While certainly there might be anecdotal evidence there, as all have noted, there’s no data to support it,” Lynch said in an appearance before the House Judiciary Committee on Tuesday.

The comments come a month after FBI Director James Comey said officers were reluctant to enforce the law at times because of viral videos of cops making arrests.

“In today’s YouTube world, are officers reluctant to get out of their cars and do the work that controls violent crime? Are officers answering 911 calls but avoiding the informal contact that keeps bad guys from standing around, especially with guns?” he asked in a speech at the University of Chicago Law School, his alma mater.

“I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.”

Lynch’s comments were similar to President Obama’s administration.

“The available evidence at this point does not support the notion that law enforcement officers are shying away from fulfilling their responsibilities,” White House press secretary Josh Earnest said at a daily briefing soon after Comey’s remarks.

“The evidence we’ve seen so far doesn’t support the contention that law enforcement officials are somehow shirking their responsibility, and in fact you’ve seen law enforcement leaders across the country indicating that’s not what’s taking place,” he said.

FBI Investigates Deadly Police Shooting in Minneapolis After It’s Ruled a Homicide

police lightsBy Steve Neavling
ticklethewire.com

A deadly Minneapolis police shooting over the weekend that set off angry protests will be investigated by the FBI, the Los Angeles Times reports.

A scuffle between police and Jamar Clark, 24, ended with an officer shot him in the head.

The county medical examiner has ruled the shooting a homicide.

Protesters claim that Clark was shot while in handcuffs, but police dispute that.

The incident happened after Clark was suspected of assaulting an unidentified woman. He’s accused of interfering with paramedics who were treating the alleged victim.

Los Angeles Times: Border Patrol Appears to Be Using Stalling Tactics with Body Cameras

Border Patrol agents reads the Miranda rights to a Mexican national arrested for transporting drugs.By Editorial Board
Los Angeles Times

To assure the public of their commitment to transparency and accountability, many law enforcement agencies across the country — including the Los Angeles Police Department — have embraced body-worn cameras with admirable rapidity. However, the nation’s largest law enforcement agency, the U.S. Border Patrol, is moving so slowly to adopt this new technology that it appears not to be moving at all.

In August, a U.S. Customs and Border Protection working group completed a yearlong feasibility study of body cameras at the request of Commissioner R. Gil Kerlikowske. The group did an adequate job of outlining the pitfalls of having Border Patrol agents wear cameras (resistance by the officers, privacy concerns and cost, among other things) and the benefits (decreased use-of-force incidents, better record-keeping and improved safety of officers).

No surprises there. Police agencies, including the LAPD, made similar cost-benefit analyses as they prepared to roll out their programs. And while tricky, none of the policy challenges has proved insurmountable. Meanwhile, studies over the last year have found that when police wear body cameras and record video of interactions with suspects, it really does influence the behavior of officers and suspects alike, and dramatically reduces use-of-force incidents. Today, many police chiefs, civil rights groups and even the president are praising body cameras as an essential law enforcement tool that makes everyone safer.

This made Kerlikowske’s announcement last week that even more review of body cameras was still necessary all the more suspect. Was this just a stalling tactic by a department not committed to transparency?

To read more click here. 

Investigation: Secret Service Employees Improperly Accessed Data to Embarrass a Critic

Jason Chaffetz

Rep. Jason Chaffetz

By Steve Neavling
ticklethewire.com

An internal Homeland Security investigation found that Secret Service employees improperly accessed a database 60 times in search of information that would embarrass House Oversight and Government Reform Chairman Jason Chaffetz, NBC News reports. 

Homeland Security Inspector General John Roth discussed the investigation at a joint House-Senate hearing Tuesday.

The information was accessed between March 24 and April 2.

“Knowledge of Chairman Chaffetz’s application was widespread and was fueled and confirmed by improper access to the Secret Service database at issue,” Roth said.

Chaffetz is a frequent critics of the agency, which appeared to be the motive behind embarrassing him.

The Secret Service apologized to the Utah Republican last month.

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