Category Archives: Unit of Prosecution

NCO’s & Double Jeopardy

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Brett Kavanaugh, Double Jeopardy, And Presidential Pardons

In State v. Madden, the WA Court of Appeals held that a defendant who contacted a person with three separate No-Contact Orders (NCO’s) against him may only be punished for a single count of Violation of a No-Contact Order.

BACKGROUND FACTS 

Mr. Madden Jr. contacted a person with three separate no-contact orders against him. For this single act, the State charged Madden with three counts of Violating a No-Contact Order (DV). The jury found him guilty as charged. Madden appealed on arguments that his three convictions for violation of a no-contact order violated Double Jeopardy principles

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began with the background that Article I, section 9 of the WA State Constitution and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protect against multiple punishments for the same offense.

“When a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act,” said the Court, quoting State v. Mutch.  “It must be manifestly apparent from the record, testimony, and argument that identical charges are based on separate acts.”

Furthermore – and importantly – the Court of defined what a “Unit of Prosecution” was. “Unless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the Rule of Lenity requires a court to resolve ambiguity in favor of one offenses,” said the Court.

Consequently, the Court reasoned that while Mr. Madden violated multiple court orders, he committed only one act constituting a “violation.” The Court further reasoned that the State cites no case in which a court allowed multiple convictions under a single statute based on a single act. Finally, the court reasoned that when a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act. “Any other interpretation would lead to an unconstitutional result.”

With that, the Court of Appeals reversed counts two and three of Madden’s No-Contact Order Violation convictions.

Please read my Legal Guide Defending Against Domestic Violence Charges and contact my office if you, a friend or family member are charged with Domestic Violence crimes, including Assault and/or No-Contact Order Violations. Hiring an effective and competent defense attorney is the first and best step toward justice.

Promoting Prostitution

Bellingham Defense Attorney, Constitutional Rights, Double Jeopardy, felony, Promoting Prostitution, Rule of Lenity, Skagit County Criminal Defense, Unit of Prosecution, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Image result for prostitution

In State v. Barbee, the WA Supreme Court held that a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved.

Defendant Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee “supervised” during 2010 were SE, BK, and CW.

S.E.

SE met Mr. Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as Backpage.com, SE would also work “the track” (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She was expected to make $1,000 a day or stay up at night until she met that quota.

All of her earnings went to Barbee, who required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in “escorting.” During 2010, two of the women she recruited on Barbee’s behalf were two 18-year-olds, BK and CW.

B.K.

BK soon began working as a prostitute for Barbee, initially working out of a motel room and later moving to “the track.”  After BK was arrested and then released from jail, she went to her parents’ house, intending to stop working for Barbee. A few months later, Barbee texted BK and convinced her to come to his apartment in Seattle. BK soon began living in the apartment and worldng for Barbee again. She testified at trial that Barbee took the keys to her car and refused to return them, would not allow her to leave the apartment during the day, and allowed her to go shopping or visit her daughter only if he accompanied her. At some point in late 2010, BK left and stopped working for Barbee permanently.

C.W.

Eighteen-year-old CW also worked for Barbee during 2010, but for a comparatively short time. She was living in Bellingham and working at a nursing home when SE began communicating with her via MySpace in early May. Excited about the idea of becoming more independent, CW packed her bags, borrowed a friend’s car, and moved to Seattle to meet SEat a Motel6 on Pacific Highway South. Once she arrived, CW was told that she would be worldng for Barbee as an escort, that all of her money would go to him, and that he would provide her with clothes, jewelry, and a place to live.

A few weeks later, CW became disillusioned and texted Barbee that she was quitting. She left and never had contact with Barbee again.

THE ARREST & THE VERDICT

That December, SE arranged online to meet a client for an out-call at the Hampton Inn in Kent. Barbee drove SE to the motel and waited for her while she went inside. The client she had arranged to meet turned out to be an undercover officer. When SE arrived and agreed to have sex with the detective, she was arrested. After a short car chase, police officers arrested Barbee as well.

The State charged Barbee with two counts of promoting sexual abuse of a minor (SE), one count of first degree promoting prostitution (BK), one count of second degree promoting prostitution (CW), one count of leading organized crime, two counts of first degree theft from the Social Security Administration, and one count of second degree theft from the Department of Social and Health Services (DSHS).

The jury found Barbee guilty on all counts, except that they found him guilty of the lesser included offense of second degree promoting prostitution of BK.

THE APPEAL

Barbee claims that the two counts of promoting prostitution of BK and CW constitute a single unit of prosecution, or that he committed a single “enterprise” of promoting prostitution that involved two prostitutes. On Appeal, he argues that his two convictions for promoting prostitution of different women as part of the same enterprise over the same period of time” encompassed a single unit of prosecution in violation of the double jeopardy prohibition clauses of our federal and state constitutions.

THE ISSUE

The WA Supreme Court addressed whether Barbee’s two counts of second degree promoting prostitution constitute a single unit of prosecution. Here, it appears so.

THE CONCLUSION

The Court decided that yes, Barbee’s two counts of Second Degree Promoting Prostitution constituted two distinct units of prosecution.

THE COURT’S ANALYSIS OF “UNITS OF PROSECUTION”

The WA Supreme Court reasoned that Double Jeopardy is violated when a person is convicted multiple times for the same offense. When the convictions are under the same statute, the court must ask what ‘”unit of prosecution”‘ the legislature intended as the punishable act under the specific criminal statute.

The Court further reasoned that both constitutions protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. Thus, while a unit of prosecution inquiry is “one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent.”

Furthermore, the court reasoned that when engaging in statutory interpretation, its goal is to ascertain and carry out the intent of the legislature: “To determine legislative intent and thus define the proper unit of prosecution, we first look to the statute’s plain meaning. If the plain meaning of the statute is ambiguous, we may also determine legislative intent by reviewing legislative history.”

Once we have defined the proper unit of prosecution, we perform a factual analysis to ascertain whether the facts in a particular case reveal that more than one “unit” is present.

THE COURT’S REASONING ON “UNITS OF PROSECUTION” IN ‘PROMOTING PROSTITUTION’ CASES

The Court reasoned that the plain Language of the Promoting Prostitution statute unambiguously authorizes multiple convictions when an individual promotes prostitution of multiple people:

“While the ‘evil’ of promoting prostitution may be the same regardless of how many prostitutes are “promoted,” it does not follow that a person is ‘equally guilty’ whether he pimps one prostitute or several. Rather, in statutes that involve crimes against persons, that guilt compounds in magnitude depending on the number of lives that are affected.”

Ultimately, two “units” were clearly proper here: CW and BK are two distinct “persons” who were both exploited by Barbee.

CONCLUSION

In sum, the WA Supreme Court held that the legislature, by use of the language “a person,” unambiguously authorized a unit of prosecution for each person promoted. “When a defendant promotes prostitution of more than one individual, he or she may be prosecuted for more than one count.” Accordingly, the Court affirmed the Court of Appeals’ decision that Barbee’s convictions for promoting prostitution of BK and CW did not violate prohibitions on double jeopardy.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Cell Phone Spying Is Unlawful

Access Devices, Bellingham Defense Attorney, Cell Phone, Computer Crimes, Constitutional Rights, Cyberstalking, Double Jeopardy, Evidence, felony, Forensics, Self-Incrimination, Skagit County Criminal Defense, Technology, Text Messages, Unit of Prosecution, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for cell phone spying

In State v. Novick, The WA Court of Appeals Division II held the Defendant committed Computer Trespass in the First Degree when he installed “Mobile Spy” software on the victim’s cell phone and sent commands to activate the recording feature of the program in order to intentionally record the victim’s private communications.

David Novick and Lisa Maunu began dating in December 2013. Novick bought her a new mobile phone on March 11, 2014, and set it up for her. Unbeknownst to Maunu, Novick installed an application called Mobile Spy on Maunu’s new phone. The application allowed a person to log onto the Mobile Spy website and monitor the phone on which the application was installed.

From the Mobile Spy website, a user could access all the information stored on the monitored phone, including text messages, call logs, and e-mails. The versions of Mobile Spy software also permitted a user to send commands to the targetted phone from a “live control panel” on the website. One such command allowed a user to activate the phone’s microphone and recording features and record audio into a file that could then be downloaded from the website.

Eventually, Novick was caught after his girlfriend Maunu became suspicious. In short, Maunu became concerned because Novick expressed specific knowledge about Maunu’s health conditions, medications, doctors’ appointments, and private conversations.

With the assistance of Novick’s employer, it was discovered that Novick had downloaded over 500 audio files from Mobile Spy, searched for GPS (global positioning system) locations, and searched for particular telephone numbers.

The State charged Novick with eight counts of Computer Trespass in the First degree and eight counts of Recording Private Communications based on Novick’s use of Mobile Spy to record Maunu’s conversations. At trial, Novick was convicted on all charges.

Novick appealed on arguments that (1) the State failed to provide sufficient evidence that he intentionally recorded a private communication, and (2) entry of eight convictions of each crime violated his right against double jeopardy because the correct unit of prosecution covers the entire course of conduct.

Ultimately, the Court of Appeals disagree with Novick and affirmed his convictions.

  1. THE PROSECUTION SHOWED SUFFICIENT EVIDENCE OF COMPUTER TRESPASS FIRST DEGREE.
First, the Court explained that Computer Trespass in the First Degree occurs when a person intentionally gains access without authorization to a computer system or electronic database of another and the access is made with the intent to commit another crime. The Court further reasoned that here, the underlying crime was Recording Private Communications. A person commits the crime of recording private communications when he intercepts or records private communications transmitted by any device designed to record and/or transmit said communications.
Second, the Court reasoned that a forensic review of Novick’s computer activity revealed that he intentionally logged into Mobile Spy’s webiste and sent commands from the website to Maunu’s phone. Also, Novick’s computer records showed that he visited the live control panel on Mobile Spy’s website, downloaded audio files collected from Maunu’s phone and intentionally recorded Maunu’s private communications.
Accordingly, the Court held that the State presented sufficient evidence that Novick committed the crime of Recording Private Communications, and with that, committed Computer Trespass First Degree.
2. NO EVIDENCE OF DOUBLE JEOPARDY.
Next, the Court rejected arguments that Novick’s multiple convictions for Computer Trespass and Recording Private Communications violated the prohibition against Double Jeopardy because the correct unit of prosecution for each crime covers the entire course of Novick’s conduct.
The Court began by saying the Fifth Amendment to the United States Constitution provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I, section 9 of the Washington Constitution says, “No person shall . . . be twice put in jeopardy for the same offense.” In short, explained the Court, these double jeopardy provisions prohibit multiple convictions for the same offense.
Furthermore, when a defendant is convicted for violating one statute multiple times, the proper inquiry is, “What unit of prosecution has the Legislature intended as the punishable act under the specific criminal statute?” The Court explained that in order to determine whether there is a double jeopardy violation, the question becomes “what act or course of conduct has the Legislature defined as the punishable act?” Consequently, the scope of the criminal act as defined by the legislature is considered the unit of prosecution.
The Court explained that the first step is to analyze the statute in question. If the statute does not plainly define the unit of prosecution, we next examine the legislative history to discern legislative intent. Finally, a factual analysis is conducted to determine if, under the facts of the specific case, more than one unit of prosecution is present.
Ultimately, the Court was not persuaded by Novick’s “plain language of the statute” argument the if the legislature intended a single unit of prosecution based on a course of conduct, it could have said so plainly.
“What matters is not what the legislature did not say, but what it did say,” said the Court. “The plain language of the statutes support the conclusion that the units of prosecution . . . are each separate unauthorized access and each recording of a conversation without consent.” The Court further reasoned that while Novick’s actions were somewhat repetitious, they were not continuous:
“On at least eight separate and distinct times, Novick logged onto Mobile Spy’s website, accessed Maunu’s phone by issuing a command through the live control panel, and downloaded at least eight different recordings of conversations between Maunu and various other people. Each access was separated by time and reflected a separate intent to record a separate conversation.”
The Court concluded that the State proved that Novick intentionally recorded eight private communications. Additionally, Novick’s actions constituted multiple units of prosecution, and therefore, his multiple convictions did not violate double jeopardy principles. Thus, the Court affirmed Novick’s convictions.
My opinion? On the one hand, it’s shocking that citizens can be convicted of felonies by accessing mainstream computer software. Shouldn’t the software itself be outlawed instead? On the other hand, I see how parents can legally using the same software to track their minor children’s whereabouts, conversations and activities. That type of activity os not illegal.
This case presents a very good example of an atypical computer crime. We see that Computer Trespass First Degree is very similar to standard Burglary charges in that the State must prove the Defendant intends to commit a crime once they gain access to the victim’s computer system or electronic database. Recording Private Communications is a crime.  Therefore, if a defendant records private communications after gaining access, they can be found guilty of Computer Trespass in the First Degree. Simple.
Computer crime cases require experts and/or lay witnesses who are competent in discussing these matters. Speaking for the defense, it’s usually best to hire experts familiar with computer forensics to determine if/when the said access was unlawful and/or intentional. Again, the State must prove intent.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Hall: WA Supremes Determine The “Unit of Prosecution” For Multiple Charges of Witness Tampering.

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In State v. Hall, the WA Supreme Court decided that an incarcerated defendant’s numerous phone calls to a witness constituted only one charge of Witness Tampering.

Defendant Mr. Hall threatened his girlfriend and her lover with a gun after finding them together in her apartment.  He flees the scene and drives away in a car owned by his friend, Desirae Aquiningoc.  Police later confront Aquiningoc about lending her car to Hall.  She said that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother.  Later, police find Hall at his home and arrest him.

Based on what happened at Salazar’s apartment, Hall was charged with Burglary First Degree Burglary and Assault Second Degree and held in jail pending trial.  While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.

The phone calls were recorded.  The State charged Hall with four counts of Witness Tampering.  Hall goes to trial.  The trial judge treated each count of Witness Tampering as a separate unit of prosecution.  Hall appeals.  The case winds its way to the WA Supreme Court.

The legal issue was whether Witness Tampering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely.

The WA Supremes reasoned that a “unit of prosecution” can be either a single act or a course of conduct.  Here, the plain language of the statute supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding.  They further reasoned that, in the alternative, each conversation is a separate crime and, in this case for example, could lead to as many as 1,200 separate crimes.

“Such an interpretation could lead to absurd results, which we are bound to avoid when we can do so without doing violence to the words of the statute,” said the Court.  “It seems unlikely the legislature intended that a person could be prosecuted for over a thousand crimes under the circumstances presented here.”  Consequently, the Court held, under the facts of this case, Hall committed one crime of Witness Tampering, not three.

My opinion?  Makes sense.  It DOES seem absurd to stack multiple charges in this case.  After all, a unit of prosecution can either be a single act or a course of conduct.  It seems more realistic to view Halls many calls as a continuing course of conduct.  You can’t label the calls as single acts because he didn’t change his plans, motive, or modus operandi.

Good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Sutherby: Great Case Regarding Improper Prosecution and Ineffective Assistance of Counsel

Assault, Constitutional Rights, Ineffective Assistance, Prosecutorial Misconduct, Rape, Sentencing, Sex Crimes, Unit of Prosecution, Washington Supreme Court, , ,

Malicious Prosecution Cases in South Carolina - King Law

In State v. Sutherby, the WA Supreme Court threw out a Rape of a Child conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter (“L.K.”) stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Mr. Sutherby was arrested and charged with multiple sex offenses to include first degree rape of a child and first degree child molestation.

A subsequent search of his personal computer found child pornography, and he was charged with 10 counts of possession of depictions of minors engaged in sexually explicit conduct. He was convicted by a jury on all counts and appealed.

The Court here considered two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?”

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.”

The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition.

The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

My opinion?  Yes, society HATES sex crimes; especially when children are possibly involved.  Here, however, the Supremes correctly looked beyond the nature of the crime and addressed how the case was botched by the Prosecutor and defense attorney alike.  Clearly, the Supremes sent a message: stacking charge after charge is, simply, unconstitutional.  Multiple images does not = multiple charges!  We creep into the realm of  unlawful Double Jeopardy.

Additionally, State v. Sutherby teaches defense attorneys about ineffective assistance of counsel.  Oftentimes, prosecutors will try adding additional charges on totally unrelated events before trial.  This tactic, if successfully done, makes juries suspicious that the defendant “must be a bad person, otherwise they wouldn’t have acquired all these criminal charges.”

In other words, the juries become prejudiced toward the defendant, and might decide the cases accordingly.  This type of outcome kills justice.  Defense attorneys must avoid sloppiness and BE CAREFUL.  We cannot allow the State to unfairly prejudice our clients at the 11th hour before trial.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.