Category Archives: Federal Crimes & Prosecutions

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.

Immigrants Make Up 22% of Federal Prison Population

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 of The Washington Times claims that a stunning 22 percent of the federal prison population is immigrants who have either already been deemed to be in the country illegally or who the government is looking to put in deportation proceedings, the administration said Tuesday.

President Trump requested the numbers as part of his initial immigration executive orders. The 22 percent is much higher than the population of foreign-born in the U.S. as a whole, which is about 13.5 percent.

All told, the government counted more than 42,000 aliens in federal prisons as of June 24. About 47 percent already face final deportation orders, making them illegal immigrants, and 3 percent are currently in immigration courts facing deportation proceedings.

Almost all of the rest are being probed by federal agents looking to deport them.

Immigrants who commit serious crimes, even if they once had legal status, can have that status revoked and can be subject to deportation, which explains the high number of cases where an alien is still being probed by U.S. Immigration and Customs Enforcement.

The U.S. Marshal Service, meanwhile, is holding about 12,000 “self-reporting” aliens, and almost all of them have already been ordered deported.

Government officials said they’re still trying to collect information on the foreign-born population in state and local prisons and jails.

Marijuana and Violent Crime

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The Federal Bureau of Investigation reports violent crime rate in Washington has declined since voters here legalized recreational marijuana use in November 2012. The FBI numbers are based on crimes reported to law enforcement agencies.

2010: 313.5 offenses per 100,000 city inhabitants

2011: 294.6 offenses per 100,000 city inhabitants

2012: 295.6 offenses per 100,000 city inhabitants

2013: 289.1 offenses per 100,000 city inhabitants

2014: 285.8 offenses per 100,000 city inhabitants

2015: 284.4 offenses per 100,000 city inhabitants

The state’s rate of violent crime in 2015, the most recent year of data available, also was substantially lower than the national average, according to the FBI. Nationally, the estimated rate of violent crime was 372.6 per 100,000 inhabitants in 2015.

Border Patrol Backs Trump

Brandon Judd, the president of the National Border Patrol Council, told "Fox and Friends" on July 17, 2017, that morale is the highest he's seen throughout his 20 years within the agency. (Fox News Channel screenshot)

According to a news article by reporter Douglass Ernst of the Washington Times, President Trump received a glowing performance review Monday from the head of the National Border Patrol Council.

Brandon Judd, who is the President of the National Border Patrol Council, appeared on “Fox and Friends” on Monday to discuss illegal immigration, Mr. Trump’s plan to build a border wall with Mexico, and morale within the agency. The union president said that agents have a new “energy” to them due to a concrete commitment to enforcing existing federal laws.

“There’s a vibe, there’s an energy in the Border Patrol that’s never been there before,” Mr. Judd told host Steve Doocy. “In the 20 years I’ve been in the patrol, we haven’t seen this type of energy, and we’re excited because we signed up to do a job and this president is allowing us to do that job.”

Mr. Judd said that having a giant contiguous wall along the southern border was not as important as having barricades at “strategic locations” such as El Paso and San Diego.

“The president has done a great job of actually enforcing the law — something we didn’t see in the last eight years,” Mr. Judd said, Fox News Channel reported. “And if we continue to do that, then a clear message will be sent throughout the world that if you cross our borders illegally, you will be detained and you will be sent back.

“If you look at the rhetoric that the president sent out, we’ve had a drop that we’ve never seen before with any president,” he continued. “If you’re in the left, right or middle, you have to say this president has done exactly what he promised to do and we do have border security like what we expect to see.”

My opinion? Let’s observe how these ongoing immigration issues develop. Last month,  the U.S. Supreme Court Supreme Court had a ruling which allowed parts of President Donald Trump’s travel ban to go into effect and will hear oral arguments on the case this fall. In its decision, the court is allowing the ban to go into effect for foreign nationals who lack any “bona fide relationship with any person or entity in the United States.” The court, in an unsigned opinion, left the travel ban against citizens of six majority-Muslim on hold as applied to non-citizens with relationships with persons or entities in the United States, which includes most of the plaintiffs in both cases.

Juror Misconduct

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In Godoy v. Spearman, the Ninth Circuit Court of Appeals overturned a murder conviction because a juror inappropriately communicated with a “judge friend” about the case during deliberations.

BACKGROUND FACTS

Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a “judge friend” during deliberations. To substantiate his allegations, Godoy brought brought alternate juror “E.M.” to his sentencing hearing. The trial court continued Godoy’s sentencing to a future court date. Later, Godoy sent the Prosecutor a declaration about Juror 10’s misconduct from alternate juror N.L., who wrote the following:

“During the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her “judge friend.” Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her “judge friend” about the case via her TMobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.”

Despite this “smoking gun” declaration, the trial court nevertheless sentenced Godoy to 16 years’ to life imprisonment. Godoy appealed his conviction to the California Court of Appeal, arguing the trial court erred by (1) refusing to presume Juror 10’s communications prejudiced the verdict and (2) refusing to hold an evidentiary hearing on the alleged misconduct. However, the California Court of Appeal rejected both of these arguments on the merits and affirmed Godoy’s conviction. Gody again appealed, this time going to the Ninth Circuit Court of Appeals.

COURT’S ANALYSIS AND CONCLUSION

This Ninth Circuit’s opinion began with the following:

“One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases . . .”

Against this backdrop, the Ninth Circuit held that the California Court of Appeal decision violated the clearly established Supreme Court law that governs this case. It reasoned that under Mattox v. United States, due process does not tolerate any ground of suspicion that the administration of justice has been interfered with by external influence.

“Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework,” said the Ninth Circuit. At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a tendency to be injurious to the defendant. If so, the contact is deemed presumptively prejudicial and the court proceeds to step two, where the burden rests heavily upon the State to establish the contact was, in fact, harmless. If the State does not show harmlessness – or in other words, if the defendant was, in fact, harmed by the juror’s contact with an outside party – then the court must grant the defendant a new trial.  However, when the prejudicial effect of the contact is unclear, then the trial court must hold a hearing to determine the circumstances of the contact, the impact thereof upon the juror, and whether or not it was prejudicial.

“Here, the California Court of Appeal failed to adhere to this framework in three key respects,” said the Ninth Circuit. First, although the State court correctly acknowledged at step one that N.L.’s declaration raised a presumption of prejudice, it never required the State to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy’s evidence failed to prove prejudice.” The Ninth Circuit further reasoned that under Mattox and Remmer, however, Mr. Godoy was not required to prove prejudice at step two. Once he triggered the presumption, the burden rested heavily upon the State to disprove prejudice. “Thus, in denying relief because Godoy’s evidence did not prove prejudice at step two, the State court acted contrary to well established law,” reasoned the Ninth Circuit.

Second, the California Court of Appeal decision to set aside the State court’s failure to hold the State to its burden was error. In other words, it was wrong for the California Court of Appeal to rely on the very same statement from N.L.’s declaration both to raise the presumption of prejudice and to rebut it.  “This defies not only logic, but also the clearly established definition of a ‘presumption,’” reasoned the Ninth Circuit.

Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a “strong possibility” of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear from the record. “Because the state court’s decision contravened these bedrock principles, it was contrary to clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1),” reasoned the Ninth Circuit.

The Ninth Circuit concluded that because Godoy showed the presumption of prejudice, he was entitled to the evidentiary hearing that he never had to begin with. With that, the Ninth Circuit reversed the judgment of the lower court and remanded the case back with instructions to hold an evidentiary hearing to determine the circumstances of Juror 10’s misconduct, the impact thereof upon the jury, and whether or not it was prejudicial.

My opinion? There’s a lot to be learned from this case. First, in all of my trials I admit a jury instruction prohibiting the jurors from accessing the internet and/or their smartphone devices. Jurors must rely on the evidence and the law and not be guided by outside influences. Second, I try and discuss the case with jurors immediately after they render verdicts. These conversations are very helpful teaching moments because jurors reveal what swayed their decisions. Also – and important to the defense of my clients – jurors may reveal whether their fellow jurors committed misconducts  similar to the type described in this case.

Good decision. And kudos to the defense attorney who discovered the juror misconduct. Although my heart goes out to the friends and family of the murder victim, justice is not served when our courts fail to administer their obligation to give defendants a fair trial.

Guilty Pleas & Deportation

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In Lee v. United States, the United States Supreme Court held that a defendant was prejudiced by his attorney’s bad advice to accept a guilty plea when following that advice ultimately led to Lee’s deportation.

BACKGROUND FACTS

Defendant Jae Lee moved to the United States from South Korea with his parents when he was 13. He spent 35 years in this country. He never returned to South Korea. He also never became a U. S. citizen, and lived instead as a lawful permanent resident.

In 2008, federal officials heard from a confidential informant that Lee had sold the informant ecstasy and marijuana. After obtaining a warrant, the officials searched Lee’s house. They found drugs, cash, and a loaded rifle. Lee admitted that the drugs were his. Later, a grand jury indicted him on one count of possessing ecstasy with intent to distribute. Lee retained a private defense attorney and entered into plea discussions with the Government.

Importantly, during the plea process, Lee repeatedly asked his attorney whether he would face deportation. His attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison. Unfortunately for Lee he had, in fact, pleaded guilty to an “aggravated felony” under the Immigration and Nationality Act, 8 U. S. C. §1101(a)(43)(B). Therefore, Lee was subject to mandatory deportation under federal law §1227(a)(2)(A)(iii) as a result of that plea following his attorney’s advice

When Lee learned of this consequence, he filed a motion to vacate his conviction and sentence, arguing that his attorney gave constitutionally ineffective assistance. At an evidentiary hearing, both Lee and his plea-stage counsel testified that “deportation was the determinative issue” to Lee in deciding whether to accept a plea, and Lee’s counsel acknowledged that although Lee’s defense to the charge was weak, if he had known Lee would be deported upon pleading guilty, he would have advised him to go to trial. A Magistrate Judge recommended that Lee’s plea be set aside and his conviction vacated. The District Court, however, denied relief, and the Sixth Circuit affirmed.

Applying the two-part test for ineffective assistance claims from Strickland v. Washington, the Sixth Circuit concluded that, while the Government conceded that Lee’s counsel had performed deficiently, Lee could not show that he was prejudiced by his attorney’s erroneous advice. Lee appealed the Sixth Circuit’s decision. He was granted review by the U.S. Supreme Court.

COURT’S DECISION & ANALYSIS

The U.S. Supreme Court held that Lee successfully showed he was prejudiced by his defense attorney’s bad advice.

The Court reasoned that when a defendant claims that his attorney’s bad performance deprived him of a trial by causing him to accept a guilty plea, then the defendant can show prejudice by demonstrating a reasonable probability that, but for the attorney’s errors, he would not have pleaded guilty and would have insisted on going to trial. Here, the Court believed Lee’s argument that he never would have accepted a guilty plea if he knew he would be deported upon accepting the guilty plea.

The Court further reasoned that the decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. It explained that when consequences are similarly dire, even the smallest chance of success at trial may look attractive:

“For Lee, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial.”

Finally, the Court reasoned that under the unusual circumstances of this case, Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation. Here, both Lee and his attorney testified that deportation was the determinative issue to Lee when Lee accepted the plea deal.  Also, Lee’s responses to the judge’s questioning during the entry of his plea confirmed the importance that Lee placed on deportation. He had strong connections to the United States, while he had no ties to South Korea.

Finally, the Court rejected the Government’s argument that Lee cannot convincingly argue that his decision to reject the plea bargain would have been rational under the circumstances since deportation would almost certainly result from a trial:

“Unlike the Government, this Court cannot say that it would be irrational for someone in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.”

With that, the U.S. Supreme Court reversed Lee’s conviction.

My opinion? Good decision. In Padilla v. Kentucky, the U.S. Supreme Court held that a defense attorney has an obligation under the Sixth Amendment to advise non-citizens about the potential adverse immigration consequences of a plea to criminal charges, and that the absence of such advice may be a basis for claim of ineffective assistance of counsel. Clearly, it’s of the utmost importance that defense attorneys competently advise their clients of the ramifications of pleading guilty. As demonstrated here, pleading guilty to aggravated felonies results in the unwanted consequences of immediate deportation.

Please contact my office if you, a friend or family member faces criminal charges bringing the risk of deportation.

Drug-Sniffing Dogs

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In United States v. Gorman, the Ninth Circuit Court of Appeals held that the Fourth Amendment was violated when an officer unreasonably prolonged an initial traffic stop and radioed for a drug-sniffing dog after because he thought there were drugs in the car.

BACKGROUND FACTS

In January 2013, a police officer stopped Straughn Gorman on Interstate-80 outside Wells, Nevada for a minor traffic infraction. The officer thought Gorman might be carrying drug money. Acting on this concern, he unsuccessfully attempted to summon a drug-sniffing dog and then prolonged Gorman’s roadside detention, which lasted nearly half an hour, as he conducted a non-routine records check.

Unable to justify searching the vehicle, he questioned Gorman further and finally released him without a citation.

Undeterred, the officer then developed the bright idea of contacting the sheriff’s office in Elko, a city further along Gorman’s route, to request that one of their officers stop Gorman a second time. The first officer conveyed his suspicions that Gorman was carrying drug money, described Gorman’s vehicle and direction of travel, and reported that his traffic stop had provided no basis for a search. “You’re going to need a dog,” he said. A second officer, who had a dog with him, then made a special trip to the highway to intercept Gorman’s vehicle.

The second officer saw Gorman and eventually believed he had found a traffic reason to pull him over. Following the second stop, the second officer performed a series of redundant record checks and conducted a dog sniff. The dog signaled the odor of drugs or drug-tainted currency. On the basis of the dog’s alert, the second officer obtained a search warrant, searched the vehicle, and found $167,070 in cash in various interior compartments.

No criminal charges arising from this incident were ever brought against Gorman. Instead, the government attempted to appropriate the seized money through civil forfeiture. Civil forfeiture allows law enforcement officials to “seize . . . property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent.” Leonard v. Texas, 137 S. Ct. 847, 847 (2017).

Gorman contested the forfeiture by arguing that the coordinated stops violated the Fourth Amendment. He prevailed. The federal district court ordered that his money be returned and also awarded him attorneys’ fees. The Government appealed to the Ninth Circuit Court of Appeals.

ANALYSIS & CONCLUSIONS

The Court of Appeals (1) affirmed the lower court’s order granting claimant’s motion to suppress evidence seized pursuant to a traffic stop; (2) affirmed the award of attorneys’ fees; and (3) held that the search of claimant’s vehicle following coordinated traffic stops violated the Constitution.

The Court of Appeals held that the first stop of claimant’s vehicle was unreasonably prolonged in violation of the Fourth Amendment. The court reasoned that the Supreme Court has made clear that traffic stops can last only as long as is reasonably necessary to carry out the “mission” of the stop, unless police have an independent reason to detain the motorist longer. The “mission” of a stop includes “determining whether to issue a traffic ticket” and “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015).

Additionally, the Court held that the dog sniff and search of claimant’s vehicle during the coordinated second vehicle stop followed directly in an unbroken causal chain of events from that constitutional violation; and consequently, the seized currency from the second stop was the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.

Finally, the Court held that none of the exceptions to the “fruit of the poisonous tree” doctrine – the “independent source” exception, the “inevitable discovery” exception, and the “attenuated basis” exception – applied to claimant’s case.

Good decision.

Ninth Circuit Strikes Nevada Statutory Scheme Allowing Pretextual Stops

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In United States v. Orozco, the Ninth Circuit Court of Appeals held that a statute allowing Nevada law enforcement officers to stop and search commercial vehicles for no reason violates the Fourth Amendment as unlawfully pretextual.

BACKGROUND FACTS

In 2013, law enforcement received a tip that defendant Victor Orozco – a commercial truck driver – regularly transported illegal drugs across the border inside his semi truck. Unbeknownst to Orozco, Nevada had a statutory and administrative scheme  allowing its police officers to pull over and search commercial vehicles for contraband under the notion that these searched perform a public safety purpose.

On April 27, 2013, the tipster said Orozco would be driving through White Pine County,
Nevada. Trooper Zehr of the Nevada Highway Patrol was advised of the vehicle and its location. He was told he would have to develop his own probable cause to get the vehicle stopped because there could possibly be drugs in the vehicle, but there was nothing solid.

Troopers targeted Orozco’s truck and pulled it over. They discovered the truck had made several trips across the border. Eventually, a K-9 officer dog arrived and made a positive alert as to the presence of drugs. The troopers found a duffel bag containing twenty-six pounds of methamphetamine and six pounds of heroin in the sleeper compartment.

Prior to trial, Orozco moved to suppress the drug evidence on the ground that the inspection of his vehicle was an impermissible pretext “motivated by a desire to search for evidence of drug trafficking, rather than to conduct a commercial vehicle inspection.” However, because “safety inspections” were part of a facially valid administrative scheme, the district judge held that the stop of Orozco’s truck was lawful. Later, Orozco was convicted of two counts of possession with intent to distribute a controlled substance for which he was sentenced to 192 months in prison.

LEGAL ISSUE ON APPEAL

Orozco appealed his conviction on the issue of whether the stop was justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

COURT’S ANALYSIS & CONCLUSION

In short, the Court of Appeals reversed the district court’s denial of Orozco’s motion to suppress, vacated his conviction for two counts of drug possession arising from the stop of his vehicle and remanded the case back to the lower court for further proceedings.

“Nevada Highway Patrol troopers made the stop in order to investigate criminal activity, even though they lacked the quantum of evidence necessary to justify the stop,” reasoned the Court of Appeals. Based on that, the stop was not justified under the administrative search doctrine, which permits stops and searches, initiated in furtherance of a valid administrative scheme, to be conducted in the absence of reasonable suspicion or probable cause.

The Court of Appels further reasoned that although an administrative scheme allowing Nevada law enforcement officers to make stops of commercial vehicles and conduct limited inspections without reasonable suspicion was valid on its face because its purpose was to ensure the safe operation of commercial vehicles, the evidence in this case, however, established beyond doubt that the stop of the defendant’s vehicle was a pretext for a stop to investigate information of suspected criminal activity short of that necessary to give rise to reasonable suspicion.

“The stop would not have been made in the absence of a tip that the defendant was possibly carrying narcotics. Accordingly, the stop was a pretextual stop that violated the Fourth Amendment.”

The Court further emphasized that the presence of a criminal investigatory motive, by itself, does not render an administrative stop pretextual, and nor does a dual motive—one valid and one impermissible. “Rather, the defendant must show that the stop would not have occurred in the absence of an impermissible reason.”

With that, the Court reversed Orozco’s convictions.

My opinion? Good decision. Pretextual stops are often used by police officers as an excuse to initiate a stop and search of automobiles suspected of being involved in criminal activity. These stops involve police officers stopping drivers for traffic violations – minor or otherwise – to conduct investigations which are separate and unrelated to the original reasons substantiating the stop. Pretextual traffic stops give police officer a lot of discretion in who they choose to stop and for what reasons. Too much discretion. Again, good decision.

Shackled in Court

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In United States v. Sanchez-Gomez, the Ninth Circuit Court of Appeals held that a lower federal court’s policy of routinely shackling all defendants in the courtroom was unconstitutional.

BACKGROUND FACTS

In 2013, the judges of the Southern District of California approached the U.S. Marshals Service and requested “a district-wide policy of allowing the Marshals Service to bring all in-custody defendants in full restraints for most non-jury proceedings.” “Full restraints” means that a defendant’s hands are closely handcuffed together, these handcuffs are connected by chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together.

Starting on the first day of the policy’s implementation, the Federal Defenders of San Diego objected to the routine use of shackles and requested that each defendant’s shackles be removed. The judges routinely denied the requests, relying on the Marshals Service’s general security concerns. The judges also pointed to increasing security threats from what they viewed as changing demographics and increasing case loads in their district.

The shackling was the same regardless of a defendant’s individual characteristics. One defendant had a fractured wrist but appeared in court wearing full restraints. Nevertheless, the judge denied her motion to remove the restraints, Another defendant was vision-impaired. One of his hands was free of restraint so he could use his cane, but his other hand was shackled and secured to a chain around his waist and his legs were shackled together. His objection to the restraints was also denied.  And another defendant was shackled despite being brought into court in a wheelchair due to her “dire and deteriorating” health. The court “noted” her objection to the shackles and denied the defendant’s motion to remove the shackles.

Defendants appealed these denials to the district court and also filed motions challenging the constitutionality of the district-wide policy. The district courts denied all relief. All four cases were consolidated for review of the policy’s constitutionality.

COURT’S ANALYSIS AND CONCLUSIONS

This 9th Circuit said that under the Fifth Amendment, no person shall be “deprived of life, liberty, or property, without due process of law.” It reasoned that the U.S. Supreme Court has said time and again that “liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action. Youngberg v. Romeo, 457 U.S. 307, 316 (1982).

Liberty from bodily restraint includes the right to be free from shackles in the courtroom, reasoned the court. Also, the right to be free from unwarranted shackles no matter the proceeding respects our founding principle that defendants are innocent until proven guilty.

“The principle isn’t limited to juries or trial proceedings,” said the Court. It also includes the perception of any person who may walk into a public courtroom, as well as those of the jury, the judge and court personnel:

“A presumptively innocent defendant has the right to be treated with respect and dignity in a public courtroom, not like a bear on a chain . . . The fact that the proceeding is non-jury does not diminish the degradation a prisoner suffers when needlessly paraded about a courtroom, like a dancing bear on a lead, wearing belly chains and manacles.”

The Court further reasoned that the most visible and public manifestation of our criminal justice system is the courtroom. “Courtrooms are palaces of justice, imbued with a majesty that reflects the gravity of proceedings designed to deprive a person of liberty or even life.” It reasoned that a member of the public who wanders into a criminal courtroom must immediately perceive that it is a place where justice is administered with due regard to individuals whom the law presumes to be innocent. That perception cannot prevail if defendants are marched in like convicts on a chain gang. “Both the defendant and the public have the right to a dignified, inspiring and open court process. Thus, innocent defendants may not be shackled at any point in the courtroom unless there is an individualized showing of need.”

Moreover, the Court reasoned that it has a long tradition of giving correctional officials a wide berth in maintaining security within their own facilities. “But we don’t have a tradition of deferring to correctional or law enforcement officers as to the treatment of individuals appearing in public courtrooms.”

Here, in the courtroom, law enforcement officers have no business proposing policies for the treatment of parties as a class. Insofar as they have information pertaining to particular defendants, they may, of course, bring it to the court’s attention. But a blanket policy applied to all defendants infuses the courtroom with a prison atmosphere. The Marshals Service should not have proposed it and the judges should not have paid heed.

“We must take seriously how we treat individuals who come into contact with our criminal justice system—from how our police interact with them on the street to how they appear in the courtroom. How the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling and “perp walks” are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise. We must treat people with respect and dignity even though they are suspected of a crime.”

Finally, the Court reasoned that the Constitution enshrines a fundamental right to be free of unwarranted restraints. “Thus, we hold that if the government seeks to shackle a defendant, it must first justify the infringement with specific security needs as to that particular defendant.” Courts must decide whether the stated need for security outweighs the infringement on a defendant’s right. This decision cannot be deferred to security providers or presumptively answered by routine policies, said the Court. “All of these requirements apply regardless of a jury’s presence or whether it’s a pretrial, trial or sentencing proceeding. Criminal defendants, like any other party appearing in court, are entitled to enter the courtroom with their heads held high.”

My Opinion? Excellent decision. Unless a defendant is particularly dangerous to themselves or others, there is simply no reason to parade them around the court like animals. It’s degrading, demoralizing and reduces respect for the criminal justice system; especially if defendants are not yet found guilty for crimes.

Sessions Seeks Harsher Prosecutions & Stricter Sentences

Image result for sessions war on drugs

Today, CNN Reporter Laura Jarrett broke the story that Attorney General Jeff Sessions has a new directive for federal prosecutors across the country: charge suspects with the most serious offense you can prove.

Friday’s announcement follows a line of several other significant departures from Obama-era domestic policies at the Justice Department, but this decision crystalized Sessions’ position in the criminal justice realm.
In a brief one-and-a-half-page memo, Sessions outlined his new instructions for charging decisions in federal cases, saying that his new first principle is “that prosecutors should charge and pursue the most serious, readily provable offense.”
“The most serious offenses are those that carry the most substantial guidelines sentence, including mandatory minimum sentences,” Sessions later adds.
While the federal sentencing guidelines are advisory — and take into account everything from a defendant’s criminal history to cooperation with authorities — some judges have felt handcuffed by mandatory minimums, which provide a statutory sentencing minimum of months below which the judge cannot depart.
The move was harshly criticized by the New York University School of Law Brennan Center for Justice, a nonpartisan law and policy institute focused on democracy and justice.
“The Trump administration is returning to archaic and deeply-flawed policies,” Inimai Chettiar, the center’s justice program director, said Friday. “Sessions is leaving little to no room for prosecutors to use their judgment and determine what criminal charges best fit the crime.”
“That approach is what led to this mess of mass incarceration,” she added. “It exploded the prison population, didn’t help public safety, and cost taxpayers billions in enforcement and incarceration costs.”
Sessions also formally withdrew a signature part of Attorney General Eric Holder’s “Smart on Crime” initiative, which sought to target the most serious crimes and reduce the number of defendants charged with non-violent drug offenses that would otherwise trigger mandatory minimum sentences.
“We must ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers,” Holder wrote in a 2013 memo. “In some cases, mandatory minimum and recidivist enhancements statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution.”
As a result, during the Obama era, federal prosecutors were instructed not to charge someone for a drug crime that would trigger a mandatory minimum sentence if certain specific factors were met: (a) the relevant conduct didn’t involve death, violence, a threat of violence or possession of a weapon; (b) the defendant wasn’t an organizer, leader or manager of others within a criminal organization; (c) there were no ties to large-scale drug trafficking operations; and (d) the defendant didn’t have a “significant” criminal history (i.e., prior convictions).
All of those charging factors are now gone under Sessions’ reign and not surprising, as he has previously telegraphed his desire to prosecute more federal cases generally.
My opinion? We’re bringing back the War on Drugs. As it stands, the federal government typically prosecutes only the most serious offenses, and does so with what can seem to be a crushing investigation and avalanche of evidence. Their resources are vast. Mounting a defense can feel daunting.
Here, the effects of Session’s decision will most immediately be felt in the context of drug crimes. Federal mandatory minimums can be harsh because the sentences are dictated based on drug type and quantity.
Said differently, Sessions decision could bring back the War on Drugs. His actions are already embracing it’s worst features: confidential informants, harsh plea bargains and long sentences.