Category Archives: Federal Crimes & Prosecutions

“Revenge Porn” Outlawed by the Feds?

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Excellent article by Brian Murphy and Andrea Drusch of mcclatchydc.com discusses how congressional lawmakers are pushing to make “revenge porn” or “sextortion” a federal crime.

Tuesday, Sens. Richard Burr, R-N.C., Kamala Harris, D-Calif., and Amy Klobuchar, D-Minn., said they’d sponsor the new legislation to make “revenge porn” a federal crime by passing a bill very similar to a bill introduced last year by Rep. Jackie Speier, D-Calif. Speier introduced the bill in the House again Tuesday.

According to the article, Rep. Joe Barton, a Texas Republican who is sponsoring the bill, said he shared a sexually explicit video and text messages with a woman he was seeing after he separated from his second wife. An image from that video of a naked Barton, now 68, appeared on the internet last week, becoming the talk of his hometown and spurring debate over criminal intent.

Barton apologized last week for the leaked video, saying he should have used better judgment. He also suggested he’d been the victim of the crime of revenge porn, which is illegal under Texas’s law, but not federal law.

Barton sent the video to a woman who he saw over the span of several years. In a recorded phone conversation that the woman gave to the Washington Post, Barton asked her not to use the video to hurt his career. She said she had no intention of doing so, but the video surfaced last week from an anonymous Twitter account.

Barton took the incident to the U.S. Capitol Police, but said last week he’d heard no word that an investigation had been opened.

According to Murphy and Drusch’s article, thirty-eight states and D.C. have laws against distributing “revenge porn.” The new federal legislation would make it “unlawful to knowingly distribute a private, visual depiction of an individual’s intimate parts or of an individual engaging in sexually explicit conduct, with reckless disregard for the individual’s lack of consent to the distribution, and for other purposes.”

Murphy and Drusch wrote that North Carolina passed legislation outlawing “revenge porn” in 2015 and updated the provision in 2017. The state law makes it illegal to post nude photos online without the consent of the victim.

The FBI defines “sextortion” as “when someone threatens to distribute your private and sensitive material if you don’t provide them images of a sexual nature, sexual favors, or money.”

In short, the proposed federal legislation would establish federal criminal liability for people who share private, explicit images without consent. In order to prosecute someone under the proposed law, officials would have to prove the defendant was aware of a substantial risk that the victim expected the image would remain private and that sharing could cause harm to the victim.

“Perpetrators of exploitation who seek to humiliate and shame their victims must be held accountable,” said Harris, the former attorney general of California who prosecuted operators of “revenge porn” sites. “It is long past time for the federal government to take action to give law enforcement the tools they need to crack down on these crimes.”

The bill provides up to five years in prison and/or unspecified fines.

My opinion? Washington State has already outlawed “revenge porn” as a Class C Felony under the “Disclosing Intimate Images” statute RCW 9A.86.010. Other states have also followed suit. It appears the feds are simply catching up.

Immediately contact my office if you, a friend or family member face criminal charges for distributing suggestive content online. It’s imperative to find a competent criminal defense attorney who can possibly suppress the evidence and/or convince prosecutors and judges to reduce or dismiss these egregious charges.

The Feds on Crime Under Jeff Sessions

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 of the Washington Post describes the dramatic and controversial changes in policy Jeff Sessions has made since becoming the Attorney General under President Trump months ago.
“From his crackdown on illegal immigration to his reversal of Obama administration policies on criminal justice and policing, Sessions is methodically reshaping the Justice Department to reflect his nationalist ideology and hard-line views — moves drawing comparatively less public scrutiny than the ongoing investigations into whether the Trump campaign coordinated with the Kremlin.”
Apprently, Sessions has even adjusted the department’s legal stances in cases involving voting rights and lesbian, gay, bisexual and transgender issues in a way that advocates warn might disenfranchise poor minorities and give certain religious people a license to discriminate.
“The Attorney General is committed to rebuilding a Justice Department that respects the rule of law and separation of powers,” Justice Department spokesman Ian Prior said in a statement, adding, “It is often our most vulnerable communities that are most impacted and victimized by the scourge of drug trafficking and the accompanying violent crime.”

Immigration
Zapotsky and Horwitz write that unlike past attorneys general, Sessions has been especially aggressive on immigration. He served as the public face of the administration’s rolling back of a program that granted a reprieve from deportation to people who had come here without documentation as children, and he directed federal prosecutors to make illegal-immigration cases a higher priority. The attorney general has long held the view that the United States should even reduce the number of those immigrating here legally.

Zapotsky and Horwitz said that in an interview with Breitbart News in 2015, then-Sen. Sessions (R-Ala.) spoke favorably of a 1924 law that excluded all immigrants from Asia and set strict caps on others.

“When the numbers reached about this high in 1924, the president and Congress changed the policy and it slowed down immigration significantly,” Sessions said. “We then assimilated through 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

According to Zapotsky and Horwitz, Vanita Gupta, the head of the Justice Department’s civil rights division in the Obama administration who now works as chief executive of the Leadership Conference on Civil and Human Rights, said Sessions seems to harbor an “unwillingness to recognize the history of this country is rooted in immigration.”

“On issue after issue, it’s very easy to see what his worldview is of what this country is and who belongs in this country,” she said, adding that his view is “distinctly anti-immigrant.”

 

Police Oversight & Sentencing

Zapotsky and Horwitz write that questions about Sessions’s attitudes toward race and nationality have swirled around him since a Republican-led Senate committee in 1986 rejected his nomination by President Ronald Reagan for a federal judgeship, amid allegations of racism. In January, his confirmation hearing to become attorney general turned bitter when, for the first time, a sitting senator, Cory Booker (D-N.J.), testified against a colleague up for a Cabinet position. Booker said he did so because of Sessions’s record on civil rights.

Sessions ultimately won confirmation on a 52-to-47 vote, and he moved quickly to make the Justice Department his own. Two months into the job, he told the department’s lawyers to review police oversight agreements nationwide, currying favor with officers who often resent the imposition of such pacts but upsetting those who think they are necessary to force change.

Zapotsky and Horwitz also said that Sessions imposed a new charging and sentencing policy that critics on both sides of the aisle have said might disproportionately affect minority communities and hit low-level drug offenders with stiff sentences.

“Allies of Sessions say the policy is driven not by racial animus but by a desire to respond to increasing crime,” write Zapotsky and Horwitz. “The latest FBI crime data, for 2016, showed violent crimes were up 4.1 percent over the previous year and murders were up 8.6 percent — although crime remains at historically low levels. The Bureau of Prisons projects that — because of increased enforcement and prosecution efforts — the inmate population will increase by about 2 percent in fiscal 2018, according to a Justice Department inspector general report.”

Zapotsky and Horwitz wrote that Larry Thompson, who served as deputy attorney general in the George W. Bush administration and is a friend of Sessions, said that although he disagrees with the attorney general’s charging policy, he believes Sessions was “motivated by his belief that taking these violent offenders off the streets is the right way to address the public safety issues.”

Civil Rights & Hate Crimes

According to Zapotsy and Horwitz, Sessions’s moves to empower prosecutors have led to a concerted focus on hate-crimes prosecutions — a point his defenders say undercuts the notion that he is not interested in protecting the rights of minorities or other groups. Prosecutors have brought several such cases since he became attorney general and recently sent an attorney to Iowa to help the state prosecute a man who was charged with killing a gender-fluid 16-year-old high school student last year. The man was convicted of first-degree murder.

But while civil rights leaders praised his action in that case, Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said that it “stands in stark contrast to his overall efforts” to roll back protections for transgender people.

Shortly after he became attorney general, Sessions revoked federal guidelines put in place by the Obama administration that specified that transgender students have the right to use public school restrooms that match their gender identity. In September, the Justice Department sided in a major upcoming Supreme Court case with a Colorado baker, Jack Phillips, who refused to bake a wedding cake for a same-sex couple because he said it would violate his religious beliefs.

Sessions recently issued 20 principles of guidance to executive-branch agencies about how the government should respect religious freedom, including allowing religious employers to hire only those whose conduct is consistent with their beliefs. About the same time, he reversed a three-year-old Justice Department policy that protected transgender people from workplace discrimination by private employers and state and local governments.

The Justice Department has similarly rolled back Obama administration positions in court cases over voting rights.

In February, the department dropped its stance that Texas intended to discriminate when it passed its law on voter identification. And in August, it sided with Ohio in its effort to purge thousands of people from its rolls for not voting in recent elections — drawing complaints from civil liberties advocates.

At a recent congressional hearing, Sessions said the department would “absolutely, resolutely defend the right of all Americans to vote, including our African American brothers and sisters.”

According to Zapotsky and Horwitz, critics say that Sessions’ record shows otherwise. “We are seeing a federal government that is pulling back from protecting vulnerable communities in every respect,” Clarke said. “That appears to be the pattern that we are seeing with this administration — an unwillingness to use their enforcement powers in ways that can come to the defense of groups who are otherwise powerless and voiceless.”

My opinion? Watching the actions of the feds – and especially the top federal prosecutor for the United States – gives us a litmus test which defines the shape of things to come on a more local level. The reason why it’s important to watch the movements of federal prosecutions is because they impress upon – and persuade – the priorities of state prosecutions.

Let’s see what happens.

Black Men Sentenced Longer

PHOTO: Study says black men serve longer sentences for same crime than white men.

Excessive Tasing

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In Jones v. Las Vegas Metropolitan Police Dept., the Ninth Circuit Court of Appeals held that any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public. However, such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime.

BACKGROUND FACTS

In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his firearm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten didn’t believe deadly force was necessary because Jones hadn’t threatened him and didn’t appear to have a weapon.

As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones’s body to “lock up” and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones’s back in an attempt to handcuff Jones, keeping his taser pressed to Jones’s thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived. Backup consisted of four officers: Richard Fonbuena on Hatten’s right side, who helped handcuff Jones; Steven Skenandore, who controlled Jones’s legs and feet; Timothy English at Jones’s head, who applied a taser to Jones’s upper back; and Michael Johnson, who arrived last and ordered the tasing to stop. Johnson wanted his officers to “back off on the tasers so that Jones’s muscles would relax.” According to Johnson, Jones “didn’t look like he was physically resisting” and there were “enough officers” to take Jones into custody.

In all, Jones was subjected to taser shocks for over ninety seconds: Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen seconds—and, for ten of those seconds, English simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went limp. They sat him up but Jones was nonresponsive and twitching; his eyes were glazed over and rolled back into his head. The officers tried and failed to resuscitate him. Jones was pronounced dead shortly thereafter. The coroner’s report concluded that “police restraining procedures”—including the tasings—contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police Department and all of the officers involved in restraining Jones. They alleged Fourth and Fourteenth Amendment violations as well as various state law torts. However, the lower district court granted summary judgment for the defendants on all claims. The plaintiff’s appealed.

LEGAL ISSUE

Whether police officers are entitled to qualified immunity when they’re alleged to have caused the death of a suspect by using tasers repeatedly and simultaneously for an extended period.

COURT’S ANALYSIS & CONCLUSIONS

As a preliminary matter, the Court of Appeals held that under Fed. R. Civ. P. 17, the lower district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint.

Next, the Court of Appeals addressed the issue of whether the officers were reasonable in the degree of force they deployed. They held that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable and that a jury could reasonably conclude that the officers knew or should have known that these actions created a substantial risk of serious injury or death:

” . . . any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public.”

The Court also reasoned that that such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime. Furthermore, it reasoned that given that there was clearly established Fourth Amendment law and a jury could reasonably conclude that the officers used excessive force, the question of qualified immunity must proceed to trial.

Furthermore, the Court held that the plaintiff’s state law battery and negligence claims were triable, and should not have been dismissed by the lower district court. It said that while there was no evidence that any of the officers acted out of hostility or improper motive, there was a factual dispute as to whether the repeated and simultaneous tasings were so excessive under the circumstances that they amounted to willful or deliberate disregard of Jones’s rights. The Court of Appeals therefore remanded plaintiffs’ battery and negligence claims.

In a twist, however, The Court of Appeals affirmed the lower district court’s dismissal of the
Fourteenth Amendment claim. It said that even assuming all the facts Plaintiffs alleged, there was no evidence that the officers acted with a purpose of harming Jones that was unconnected to a legitimate law enforcement objective.

In another twist, the Court of Appeals held that the Plaintiffs’ false arrest and false imprisonment claims failed because there was no evidence that the decision to arrest Jones lacked justification, let alone that it was made in bad faith. The Court of Appeals therefore affirmed the dismissal of that claim.

My opinion? A well-reasoned, good decision. Although the Court of Appeals upheld the dismissal of some of the Plaintiffs’ claims due to lack of evidence, the Court was ultimately convinced that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable. Good decision.

MS-13 Targeted By the Feds

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 of The Washington Times gives us insights into the priority and trajectory of federal prosecutions nowadays.

Ms. Noble reports that today, Attorney General Jeff Sessions announced that he’s designated the MS-13 street gang as a priority for the Justice Department’s Organized Crime Drug Enforcement Task Forces — enabling authorities to target the gang with a broader array of federal resources.

“Now they will go after MS-13 with a renewed vigor and a sharpened focus,” Mr. Sessions said Monday as he addressed the International Association of Chiefs of Police conference in Philadelphia. “Just like we took Al Capone off the streets with our tax laws, we will use whatever laws we have to get MS-13 off of our streets.”

The priority designation will instruct federal agencies such as the IRS, FBI, Drug Enforcement Administration and Immigration and Customs Enforcement to target the El Salvador-based gang not just with drug laws but also tax, racketeering and firearms laws.

Ms. Noble wrote that prior to this year, the task force was only able to get involved in cases when they involved the drug trade or money laundering. But changes to the task force’s authority in this year’s budget allow the Justice Department to directly name an organization as a priority.

The change will mean that the task force can now get involved in a broad range of cases involving MS-13, also known as Mara Salvatrucha, including anything from murder prosecutions to firearms violations.

Noble says that Mr. Sessions has singled out MS-13’s involvement in the drug trade as a priority as his department has sought to combat both illegal immigration and an influx of drugs brought in the country from overseas.

“Drugs are killing more Americans than ever before in large part thanks to powerful cartels and international gangs and deadly new synthetic opioids like fentanyl,” Mr. Sessions said.

During his address to law enforcement leaders Monday, Mr. Sessions also highlighted a number of recent Justice Department grants awarded to police and sheriffs agencies:

  • $200,000 will be awarded to the IACP’s Institute for Police and Community Relations, to help improve trust and cooperation between law enforcement agencies and the communities they serve.
  • $5 million will be spent on rapid response training meant to prepare agencies for response to active shooter incidents.

– $100 million in grants will pay for state and local agencies to hire more police officers.

My opinion? We see some overlap in how the Trump administration and the Department of Justice are handling immigration issues with criminal prosecutions. Remember, the Trump administration promised to build a wall separating the United States from Mexico in order to keep out  the “rapists and criminals,” that he referred to as Mexican immigrants. Therefore, we should not be surprised that Attorney General Jeff Sessions’ tough-as-nails approach to gang prosecutions – Mexican gang prosecutions, mind you – is part and parcel to Trump’s immigration policies.

Inmate Lawsuits

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In Entler v. Gregoire, the Ninth Circuit Court of Appeals held that a prisoner may not be disciplined for threatening to file civil suit against prison staff. The filing of a criminal complaint against prison officials by a prisoner, as well as the threat to do so, are protected by the First Amendment, provided they are not baseless.

BACKGROUND

John Thomas Entler  is a prisoner at the Washington State Penitentiary (“WSP”). During the summer of 2012, he took issue with certain incidents at the WSP and submitted written complaints to the prison officials involved.

In all but one, Entler threatened to initiate civil litigation if his concerns were not addressed; in the other, he threatened to file a criminal complaint against a number of state officials and have them arrested. Entler was disciplined for these threats under a Washington Department of Corrections (“DOC”) regulation that bars prisoners from
intimidating or coercing prison staff.

Later, Entler brought a complaint pursuant to 42 U.S.C. § 1983 alleging that his First Amendment rights were violated when he was disciplined for threatening to initiate civil litigation and file a criminal complaint against prison officials.

The complaint ended up in federal court.

The Defendants – here, the DOC – moved for judgment on the pleadings under Rule 12(c). Initially, the federal district court summarily adopted Magistrate Judge Hutton’s Report and Recommendation (“R&R”) recommending that Defendants’ 12(c) motion be granted and that the complaint be dismissed with prejudice.

Entler sought reconsideration. In a written decision denying Entler’s motion, the federal district court, disagreeing with the magistrate judge, held that Entler’s informal complaints were not protected by the First Amendment because they “were not part of the grievance process”; but the court agreed that there was a “rational connection” in the “particular context” of the case with the correctional institution’s “legitimate penological interest,” namely the “peaceable operation of the prison through the insistence on respect.” The court also agreed with the R&R that, in any event, “defendants are entitled to qualified immunity.”

This appeal followed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that running a prison is an inordinately difficult undertaking, and that it should give adequate consideration to the judgment of the prison authorities.

“We cannot, however, condone punishing a prisoner for simply threatening to sue if his grievances are not addressed,” said the Court of Appeals. It reasoned that regardless of the prisoner’s misdeeds—however reprehensible—prison walls do not form a barrier separating prison inmates from the protections of the Constitution:

“The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts . . . for without those bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison injustices.”

With that, the Court reasoned that Entler did exactly what he was “expected” to do by the DOC Grievance Program Manual: he sought informal resolution of his concerns through regular administrative channels prior to utilizing the grievance machinery by submitting “kites” to the appropriate prison officials. “This is as it should be,” said the Court. “Entler gave the prison administration the opportunity in the first instance to attempt to resolve his concerns and thus obviate the need to engage in the formal grievance process—with its attendant administrative burdens and costs —and litigation.”

Furthermore, the Court reasoned that it may well be that if the prison officials were able to address Entler’s concerns rather than to punish him for his threats to sue, this litigation might never have come to pass. “It would have been a good thing,” said the Court.

In 2012, the year Entler initiated this suit, prisoners nationwide filed 54,402 of the 267,990 civil cases brought in the district courts.14 In 2016, the most recent year with complete statistics, these filings had increased to 76,417 out of 292,159.15 Thus, over 25% of the district courts’ civil caseload in our country entails prisoner litigation.

The Court of Appeals concluded that Since Entler has alleged cognizable First Amendment
retaliation claims regarding his threats to sue, it was improper to dismiss the complaint in its entirety under Rule 12(c). However, in regard to Entler’s threat to file a criminal complaint, even

My opinion? Good decision. As the Ninth Circuit Court of Appeals said, “The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts.” Exactly. Prisons are nowhere fun, and they’re not easy to manage, but an inmate’s Constitutional rights do not totally disappear once they’re incarcerated. Indeed, the only right inmates have left to exercise is the First Amendment. And denying them that one right – the right to express themselves – chills free speech. Pure and simple.

‘Sanctuary’ Cities Targeted by ICE in Immigration Raids

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Erik Ortiz reported that a federal operation to arrest undocumented immigrants netted nearly 500 people in cities and states that have openly opposed the Trump administration’s deportation initiatives.

According to Ortiz, Immigration and Customs Enforcement (ICE) officials said last Thursday that its four-day “Operation Safe City” targeted people in residing in the so-called “Sanctuary Cities” of New York, Los Angeles, Philadelphia, Denver, Washington and Baltimore as well as Cook County, Illinois; Santa Clara County in California’s Bay Area; Portland, Oregon; and Massachusetts.

Officials in those places — some referring to themselves as “sanctuary  communities” — have been vocal about not fully cooperating with federal immigration authorities, at times clashing with state leaders who support President Donald Trump’s agenda. Sanctuary communities have passed ordinances limiting compliance with federal immigration laws and seek to shield undocumented immigrants who may be deported simply over their immigration statuses or low-level criminal offenses.

“Sanctuary jurisdictions that do not honor detainers or allow us access to jails and prisons are shielding criminal aliens from immigration enforcement and creating a magnet for illegal immigration,” Tom Homan, ICE’s acting director, said in a statement. “As a result, ICE is forced to dedicate more resources to conduct at-large arrests in these communities.”

It is not unusual for ICE to round up immigrants by the hundreds or even low thousands, although the latest raid comes on the heels of a planned operation that would have targeted about 8,400 undocumented immigrants this month.

But the Department of Homeland Security scrapped the operation after the agency said it was halting nationwide enforcement actions in the wake of hurricanes Irma and Harvey. This latest effort indicates the administration is ready to renew its efforts.

“ICE’s goal is to build cooperative, respectful relationships with our law enforcement partners to help prevent dangerous criminal aliens from being released back onto the streets,” Homan said.

According to ICE, of the 498 people arrested this week, 317 had criminal convictions. Some were also categorized as “immigration fugitives,” “previously deported criminal aliens,” and/or associated with a gang.

Most of the criminal convictions were for driving under the influence as well as assault- and drug-related offenses, ICE said. Others were arrested for marijuana possession, traffic offenses and even charges of being a “peeping tom.”

City officials declared Portland a sanctuary city in March, and its mayor, Ted Wheeler, has criticized the Trump administration’s push to end the Obama-era program that has allowed undocumented immigrants who came to the United States as children to remain in the country.

The administration, meanwhile, has faced setbacks as it seeks to overhaul immigration — an issue that has failed repeatedly to gain traction in Congress. Weeks ago, a U.S. district judge in northern Illinois gave sanctuary cities a temporary victory, saying the Justice Department can’t withhold public safety grants to Chicago because officials there don’t want to impose certain immigration policies.

My opinion? As a criminal defense attorney, my role is to protect people’s Constitutional Rights under the Fourth Amendment. Therefore, I have a natural inclination to prevent warrantless, unlawful searches and seizures.

That said, I understand if the government declares a state of emergency holding that exigent circumstances warrants the immediate seizure and deportation of undocumented immigrants.

However, there’s lots of controversy surrounding the subject of ICE raids on Sanctuary Cities. Some civil rights advocates say the raids fit with the Trump administration’s pattern of scapegoating, criminalizing, and demonizing immigrants. Also, courts have said that holding someone without a warrant could violate their constitutional rights, putting jailers at risk of lawsuits. Finally, others have accused Trump’s attack on sanctuary cities as a malignant executive power grab that subverts the Spending Clause and tramples the 10th Amendment.

Let’s see what happens . . .

Does Sex Offense Registration Violate the Constitution?

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An article written by Jacob Sullum of www.reason.com talks about how a federal judge recently ruled that Colorado’s online database of sex offenders violates the Eighth Amendment of the U.S. Constitution.

Last week, a federal judge recognized what anyone dealing with the burdens, obstacles, and dangers of life on the registry knows: Its punitive impact far outweighs any value it might have in protecting the public. In fact, U.S. District Judge Richard Matsch concluded, registration can violate the Eighth Amendment by imposing what amounts to cruel and unusual punishment.

The three men who challenged Colorado’s Sex Offender Registration Act were sentenced to probation. Two of them also served 90 days in jail. Their real punishment began later, when they found that appearing in the state’s online registry of sex offenders made it impossible to lead a normal life.

David Millard

David Millard, who pleaded guilty to second-degree sexual assault on a minor in 1999, has been employed by the Albertsons grocery chain since 2003. His job was jeopardized after a customer saw his name and photo on a sex offender website.

Millard was forced to move repeatedly after his status as a registered sex offender was revealed, once by police and once by a local TV station. The second time, he had to fill out about 200 rental applications before finding an apartment he could rent.

Millard later bought a house in Denver, which is periodically visited by police officers seeking to verify his address. “If he is not home when they visit,” Matsch notes, “they leave prominent, brightly colored ‘registered sex offender’ tags on his front door notifying him that he must contact the Denver Police Department.”

Millard experienced name calling and vandalism, and he worries that worse may be coming. “Because of the fear and anxiety about his safety in public,” Matsch writes, “Mr. Millard does little more than go to work, isolating himself at his home.”

Eugene Knight

Eugene Knight was convicted of attempted sexual assault on a child in 2006 based on a crime he committed when he was 18. He’s a “full-time father” because he is unable to find work that pays well enough to cover the cost of child care. However, Knight is not allowed on school grounds to drop off his kids or attend school events.

Arturo Vega

Arturo Vega, who pleaded guilty to third-degree sexual assault as a juvenile but is listed in Colorado’s public database because he failed to comply with registration requirements he did not understand, has tried twice to get off the registry. Both times his petitions were rejected by magistrates who insisted he prove a negative: that he was not likely to commit another sexual offense.

The Court’s Rationale

Judge Matsch held that the lower court’s justices did not foresee the ubiquitous influence of social media, the proliferation of commercial websites peddling information from sex offender registries, or the cheap scare stories that local news outlets would produce based on that information. Those developments have magnified the life-disrupting potential of registration, as illustrated by the experiences of the plaintiffs in this case.

Judge Matsch noted that because of the registry, these men face “a known, real, and serious threat of retaliation, violence, ostracism, shaming, and other unfair and irrational treatment from the public…regardless of any threat to public safety based on an objective determination of their specific offenses, circumstances, and personal attributes.”

By forcing sex offenders into this precarious situation, Judge Matsch reasoned, the state is punishing them. He noted that State or federal courts have reached the same conclusion in AlaskaMaineMichiganNew HampshireOklahoma, and Pennsylvania.

“Maybe someday the Supreme Court will stop pretending otherwise,” wrote Sullum.

Sessions on WA Marijuana

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The Rise of Bitcoin

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 of The Washington Times claims that the value of the shadowy digital currency known as Bitcoin has jumped to record highs this month, sending shock waves through America’s defense and intelligence agencies, which fear its growth signals a surge in use by terrorists, drug kingpins, white-collar criminals and Russian cybercriminals who don’t want to be tracked by the world’s governments.
BACKGROUND ON BITCOIN
For those who don’t know, Bitcoin is a worldwide cryptocurrency and digital payment system invented by an unknown programmer, or a group of programmers, under the name Satoshi Nakamoto. It was released as open-source software in 2009. The system is peer-to-peer, and transactions take place between users directly, without an intermediary. These transactions are verified by network nodes and recorded in a public distributed ledger called a blockchain. Since the system works without a central repository or single administrator, bitcoin is called the first decentralized digital currency.

Besides being created as a reward for mining, Bitcoin can be exchanged for other currencies, products, and services in legal or black markets.

As of February 2015, over 100,000 merchants and vendors accepted bitcoin as payment. According to research produced by Cambridge University in 2017, there are 2.9 to 5.8 million unique users using a cryptocurrency wallet, most of them using Bitcoin.

The currency’s unique power comes from its independency and lack of reliance on any single government for its legitimacy. Unlike regular money, digital or cryptocurrencies are not connected to banks or governments and allow anonymous purchases or money exchanges completely outside the realm of banks, credit card firms or other third parties. Instead, the coins exist because users “mine” them by lending their computing power to verify other users’ transactions.

CYBER TERRORISM & BITCOIN

In Britain, screenshots on social media showed National Health Service computer screens with messages demanding $300 worth of Bitcoin to regain access to files.

While cyberattacks have increasingly targeted businesses around the world, Bitcoin ransom attacks, especially in the U.S., are skyrocketing. The FBI’s Internet Crime Complaint Center reported it received 2,673 ransomware incidents last year — nearly double the  figure from 2014.

Despite Moscow’s denials of meddling in the U.S. presidential election, major investigations also continue into Russian hackers suspected of using cyberattacks to undermine or influence the vote.

WORLD GOVERNMENTS STRIKE BACK AGAINST CYBER CRIMES AND BITCOIN
This summer, the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN), the Department of Justice and scores of European illicit finance law enforcement officials have fought back with a wave of operations against Russian cybercriminals. Late last month, they shuttered AlphaBay and Hansa — two of the biggest “dark web” contraband marketplaces rife with the illegal sale of guns, drugs and other forbidden merchandise.

In an even more startling sign of the battle raging around Bitcoin, a FinCEN-led international illicit financing task force arrested a Russian “mastermind of organized crime” on a small beachside village in northern Greece less than two weeks ago.

 Alexander Vinnik, who is accused of laundering more than $4 billion worth of illegal funds using Bitcoin accounts, operated BTC-e, one of the world’s oldest Bitcoin exchanges.

U.S. authorities accuse Mr. Vinnik of facilitating crimes including drug trafficking, public corruption, hacking, fraud, identity theft and tax refund fraud.

“Just as new computer technologies continue to change the way we engage each other and experience the world, so too will criminals subvert these new technologies to serve their own nefarious purposes,” Brian Stretch, U.S. attorney for the Northern District of California, said about BTC-e.

Mr. Vinnik was arrested amid worldwide cyberhavoc triggered by massive WannaCry’s Bitcoin ransomware attacks in May and June. The attacks forced a production shutdown at Renault auto plans, crashed computers at Britain’s National Health Service and targeted India’s ATM network.

A little-noticed provision of the law passed by Congress and signed by President Trump this month imposing new sanctions for North Korea, Iran and Russia mandated the formulation of a national security strategy to combat “the financing of terrorism and related forms of illicit finance.” Among those forms, according to the text of the law, were “so-called cryptocurrencies and other methods that are computer, telecommunications, or internet-based” for cybercrime.

America’s defense and intelligence agencies, FinCEN in particular, pride themselves on the U.S. government’s ability to track and disrupt the illicit financial networks that work through traditional banks and finance channels.

This summer’s crackdowns on illicit Bitcoin activity has been considerable, but the dramatic surge in the currency’s overall value poses even more challenges.

WHAT IS A BITCOIN WORTH NOWADAYS?

Over the past month, Bitcoin prices are up more than 30 percent. According to the CoinDesk Bitcoin Price Index, a bitcoin traded for more than $3,000 — a record high — this past weekend.

The surge follows a spinoff another cryptocurrency, Bitcoin Cash. Anticipation of the spinoff sent bitcoin values spiraling last month as market analysts predicted a “civil war” with the rival. The opposite appears to have occurred with the spinoff driving up Bitcoin’s value. Market analysts say the value surge demonstrated bitcoin’s resiliency in addition to a growing public appetite for cryptocurrencies.

On Thursday, bitcoins traded at $3,439.55 per coin, driving the overall market value of all existing bitcoins to $56 billion. Adding Bitcoin’s overall value to other cryptocurrencies such as Ethereum and Litecoin and the total market capitalization of such digital cash is roughly $120 billion.

HOW DO WE RESPOND TO THE INCREASED USE OF CRYPTOCURRENCIES?

Yaya Fanusie, a former counterterrorism analyst for the CIA, is credited with identifying the first verifiable instance of a terrorist organization attempting to use bitcoin to raise funds. He now runs analysis for the Center on Sanctions and Illicit Finance at the Foundation for Defense of Democracies and told The Washington Times in an interview that the increased volume of bitcoin trading in itself is not the concern.

“The national security concern is not that criminals will use this type of technology — they use all technologies,” Mr. Fanusie said. “The policy question is: How do you deal with something that governments can’t control?” He said the U.S. needs to engage with the cryptocurrencies as much as possible and pointed to Defense Department procurement experiments already underway.

“Bitcoin is like a rebellious teenager,” he said. “It wants to do its own thing. So what do you do? Do you ban it? No, you want to have a good relationship with it and influence how it develops.”

BUILDING A CRIMINAL DEFENSE 

Virtual currencies like Bitcoin can play a central role in more traditional types of crime. Bitcoin trading enables some types of unlawful purchases that may be serious offenses, such as illegal purchases of weapons or drugs. One such high-profile case is that of Silk Road’s alleged owner, Ross Ulbricht, whose Bitcoin assets of over $28 million were seized in a criminal investigation into alleged illegal drug sales.

Even ordinary cash has a history of being used for nefarious ends, but digital currency transactions can make the courtroom defense of criminal charges more complex. When facing the possibility of fines, forfeiture, or even incarceration, it is best to find an attorney with the experience it takes to build a nuanced, creative defense.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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