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Tag: computer

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.

FBI Recovered Personal, Work-Related E-mails from Hillary Clinton’s Private Server

hillary-clintonBy Steve Neavling
ticklethewire.com

Hillary Clinton said she deleted personal and work-related e-mails from a private server during her time as secretary of state.

But Bloomberg reports that the FBI has recovered the e-mails.

The FBI is trying to determine whether classified information was on Clinton’s server.

Clinton said about half of the e-mails were personal.

It wasn’t year clear how many e-mails were recovered. The investigation is expected to take several months.

FBI Searching for Back-Ups of Hillary Clinton’s Private E-mail Server

computer-photoBy Steve Neavling
ticklethewire.com

Now that the FBI has Hillary Clinton’s private e-mail server, agents are trying to determine whether the information exists anywhere else or were backed up.

It’s part of the bureau’s investigation to determine how the former secretary of state handled classified information.

A Bloomberg reporter appeared to annoy an attorney for a company that managed Clinton’s private e-mail when asked whether the information exists elsewhere.

Bloomberg writes:

Barbara Wells, an attorney for Platte River Networks, a Denver-based company that has managed Clinton’s private e-mail since 2013, said in a phone interview Thursday that the server turned over to the Federal Bureau of Investigation “is blank and does not contain any useful data.” But Wells added that the data on Clinton’s server was migrated to another server that still exists. She ended the interview when questioned further, declining to say whether the data still exists on that other server and who has possession of it.

Neither Clinton nor her campaign returned phone calls to Bloomsberg.

“The data on the old server is not now available on any server or device that is under Platte River’s control,” Wells said during the interview.

FBI Warns U.S. Companies of Increasing Dangers of Chinese Hack Attacks

Data securityBy Steve Neavling
ticklethewire.com

The FBI is alerting U.S. companies of the increasing dangers of Chinese hack attacks.

The Daily Beast reports that the bureau sent out warnings to companies Wednesday to be aware of a malicious computer program that has been tied to the bold hack of the Office of the Personnel Management.

The FBI also sent specifics such as the hash values for the malware, called Sakula, so that companies can search their systems to see if they are infected.

Although James Clapper, director of National Intelligence, has accused China of the government hack, he has yet to offer solid evidence, according to the Daily Beast.

The FLASH alert says the bureau has identified “cyber actors who have compromised and stolen sensitive business information and personally identifiable information.”

FBI Struggles to identify culprit in Houston Astros’ Hacking Case

By Steve Neavling
ticklethewire.com

The FBI is accusing the St. Louis Cardinals’ front office of illegally gaining access to another team’s computer to steal information about players and potential trades.

But there’s one problem, the New York Times reports: Agents are having trouble determining who specifically did the deed.

The investigation has narrowed in on a group of Cardinals employees whose expertise is statistics and computer programming.

According to the Times, at least four employees of baseball operations for the Cardinals have hired defense lawyers.

Agents have determined that the digital intruders had access to a computer near the team’s complex in Jupiter, Fla.

FBI Investigates St. Louis Cardinals for Allegedly Hacking into Astros’ Network

By Steve Neavling
ticklethewire.com 

The St. Louis Cardinals are under investigation by the FBI for allegedly hacking the computer network of the Houston Astros to steal player information, The Washington Post reports.

A federal law enforcement official said the investigation is “ongoing” and that there is “a lot of working going into” it.

It would be the first corporate espionage case involving a sports team accused of hacking the network of another team.

Federal officials said a person commits a crime when he or she intrudes on another person’s computer without authorization or permission.

Investigators said they have uncovered evidence that shows Cardinals officials hacked the Astros’ database and accessed information on scouting and potential trades.

Major League Baseball said it “has fully cooperated.”

“Once the investigative process has been completed by federal law enforcement officials, we will evaluate the next steps and will make decisions promptly,” the official said.

FBI: China-Based Hackers Stole Information on 4 Million Federal Workers

By Steve Neavling
ticklethewire.com

U.S. investigators believe China-based hackers stole identifying information of at least 4 million federal workers across virtually every agency, leading to concerns that culprits could mimic American officials, the Boston Herald reports. 

The compromised data came from the Office of Personnel Management and the Interior Department.

“The FBI is conducting an investigation to identify how and why this occurred,” the statement said.

U.S. Sen. Susan Collins, R-Maine, called the breach “yet another indication of a foreign power probing successfully and focusing on what appears to be data that would identify people with security clearances.”

The skills of the hackers impressed experts.

“They were incredibly successful,” Anthony Roman, president of Roman & Associates, a global investigative and security consulting firm, said. “Certain types of malware are like little sleeper cells. It goes in there, it may stay dormant, then it collects a little information and it may go dormant again. It can be very difficult to detect as a result.”

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