New Report from Sentencing Commission

The United States Sentencing Commission released a report, available here, that provides a history of the child pornography guidelines. The Sentencing Commission report is the first step in the Commission's ongoing examination of the child pornography guidelines. The report gives an overview of the child pornography guidelines over the last twenty-two years including the nine revisions to the Guidelines prompted by Congressional action. The report also notes that the Commission is engaging in a study because:

Sentencing courts have also expressed comment on the perceived severity of the child pornography guidelines through increased below-guidelines variance and downward departure rates. Consistent with the Commission’s duties to review and revise the guidelines, and the Supreme Court’s direction, the Commission has established a review of the child pornography guidelines as a priority for the amendment cycle ending May 1, 2010. This report is the first step in the Commission’s work on this priority.

Find yourself wondering where to get started in a CP case? Here is a good overview for starters. Most CP cases require trained forensic analysis because with these cases, the devil is in the details.

Email Not Private According to District of Oregon Federal Judge

Excerpt from Wall Street Journal Legal Blog
By Ashby Jones
Here’s a question: Is it kosher for a law enforcement agency to, pursuant to a lawfully granted search warrant, search your Gmail account without telling you?

According to an opinion handed down earlier this year and currently making the rounds on legal blogs (here and here), the answer is yes.

The opinion, handed down by Portland, Ore., federal judge Michael Mosman, doesn’t really delve into the case’s facts. It cuts right to the legal issue: whether the government must notify the subscriber to an email service before the government undertakes a search.

We’re going to excerpt a bit of the opinion here, mostly because it’s, perhaps uncharacteristically for a judicial opinion, engaging and very clearly written. (Bravo, Judge Mosman!). He reasons:

The Fourth Amendment protects our homes from unreasonable searches and seizures, requiring that, absent special circumstances, the government obtain a search warrant based on probable cause before entering. . . . This is strong privacy protection for homes and the items within them in the physical world.

When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, “private” information is actually being held by third-party private companies.

. . .

It is clear that notice is an essential part of the reasonableness calculus in judging searches and seizures under the Fourth Amendment. The Federal Public Defender has argued that this constitutional notice requirement supports [the view] that the copy of the warrant and receipt . . . must be provided to the subscriber to the e-mail account, rather than just to the ISP. The notice must be provided to the subscriber because the ISP “has a far lesser privacy interest in the content of its subscriber’s e-mails than the subscribers themselves.”

This argument fails to take into account the third party context in this case. If a suspect leaves private documents at his mother’s house and the police obtain a warrant to search his mother’s house, they need only provide a copy of the warrant and a receipt to the mother, even though she is not the “owner” of the documents. (citations omitted). In such a case, it is irrelevant that the suspect had a greater privacy interest in the content of the documents than did his mother. When he left the documents in her possession he no longer has a reasonable expectation of privacy in their contents.

Finally, Judge Mosman concludes with a flourish:

Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

2006 Attorney General Guidelines regarding Informants

The Attorney General Guidelines Regarding the Use of FBI Confidential Human Sources, U.S. Dep’t of Justice (2006) are available here. Always a good read when preparing for cases involving confidential witnesses.

Office Douche Bag

Something funny for Friday

52 Children Recovered, 60 Alleged Child Pimps Arrested in Crackdown

From CNN -

Law enforcement authorities have recovered 52 children and arrested 60 pimps allegedly involved in child prostitution, the FBI announced Monday.

More than 690 people in all were arrested on state and local charges, the FBI stated.

The arrests were made over the past three days as part of a nationwide law enforcement initiative conducted on the federal, state and local levels, the bureau said.

"Child prostitution continues to be a significant problem in our country, as evidenced by the number of children rescued through the continued efforts of our crimes against children task forces," Kevin Perkins, assistant director of the FBI's Criminal Investigative Division, said in a written statement.

"There is no work more important than protecting America's children and freeing them from the cycle of victimization."

The three-day operation, tagged Operation Cross Country IV, included enforcement actions in 36 cities across 30 FBI divisions nationwide. It is part of the FBI's ongoing Innocence Lost National Initiative, which was created in 2003 with the goal of ending sex trafficking of children in the United States.

The initiative, conducted with assistance from the National Center for Missing and Exploited Children, has so far resulted in the recovery of almost 900 children, according to the FBI. It has also led to more than 500 convictions.

Full story here.

Citizens Arrest?

How Pressure for Police Oversight is Mounting at City Hall

From the Center for Justice:

It is now thirty years since Mary Ann Tripp began organizing the first citizen group in Spokane to address the problem of police brutality. Initially, her interest was personal. In 1979, her son had been beaten by officers who'd run him down on foot after he made the youthful mistake of fleeing the scene of a vehicle accident in which he was a passenger. But as Mary Ann collected and filed one story of police abuse after another, the depth of the problem became much clearer to her and others. It wasn't just that the SPD had nurtured a culture where police brutality was tolerated. A culture of avoidance and denial infected City Hall as well.

The Center for Justice is among the local organizations who now walk in Mary Ann's footsteps to try to enact the reforms necessary for Spokane to begin--as CFJ's Chief Catalyst Breean Beggs puts it--"healing the relationship between our community and its police department." Increasingly, it looks as though 2010 will be a pivotal year in this long-running drama. In June, a federal grand jury indicted Spokane police officer Karl Thompson, Jr. in connection with the March 2006 death of Otto Zehm, a mentally disabled janitor who'd been violently subdued by Thompson and other officers in a north Spokane convenience store. But the dimensions of the Zehm story got much broader a few weeks ago when the federal prosecutors filed a motion in federal court. The Justice Department not only complained about the city undermining the government's investigation, but alerted the court that there was an ongoing federal criminal probe into whether others, besides Thompson, had obstructed justice in the case. (Here, we should note, the Center for Justice has separately filed a federal civil rights lawsuit on behalf of Otto Zehm's estate against the City of Spokane, Thompson, and several other police officers.) Among other things, the government's September 15th filing exposed a serious rift between Assistant U.S. Attorney Tim Durkin and Spokane Assistant City Attorney Rocky Treppiedi who, for years, has been both praised and criticized for his zealous defense of Spokane police officers.

You can read about the government's unusual September 15th court filing here, and read subsequent stories about the controversy and developing criminal case here and here. You can also download the Justice Department's most recent timeline of the key events in the Otto Zehm case here.

Of Insider-Trading, Informants, and Wiretaps

From The Snitching Blog:

"Wall Street Meets the 'Wire,'" is a post from earlier this week on White Collar Crime Prof Blog, discussing the criminal case against billionaire hedge-fund manager Raj Rajaratnam for insider-trading. Here's a link to the news story on Bloomberg. The post focuses on the unusually aggressive use of wiretaps in the investigation, and asks whether the government was authorized under the federal wiretap statute to do so given the availability of cooperating informants. As the post explains:

Title 18 U.S.C. § 2518(3)(c) provides that a court issuing a wiretap authorization order must determine whether normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous. This "necessity requirement" obligates the government to set forth a full and complete statement of specific circumstances explaining why traditional investigative techniques were insufficient or the application must be denied. In determining the sufficiency of an affidavit, a reviewing court must ensure that the issuing court properly performed [its] function and did not 'serve merely as a rubber stamp for the police'. The government is not under an obligation to exhaust all alternative means of investigation in satisfying the necessity requirement but, neither should it be able to ignore avenues of investigation that appear both fruitful
and cost-effective.

Given that the government had three co-conspirators, including one as early as January 2006, acting as informants and cooperating witnesses, and that these individuals had unfettered access to Rajaratnam and others involved in the alleged conspiracies, the question arises whether the government deliberately stalled this investigation and actively resisted utilizing normal investigative techniques, hoping to induce the court into believing that only a wiretap could succeed.

The post doesn't mention it, but the government need not even get court permission for electronic surveillance if it has so-called "third party consent," i.e. if the informant agrees to record the conversation. 18 U.S.C. § 2511(2)(c).

This story illustrates the intimate legal relationship between informants and other forms of surveillance. The law privileges informant use, forcing the government to justify its use of wiretaps if informants are available--note that the post refers to snitching as a "normal investigative technique." Moreover, the law permits the government to circumvent the courts entirely and avoid asking for permission to record conversations if it can find an informant who will agree to the surveillance. The usual explanation for this hierarchy is that electronic surveillance is one of the most intrusive forms of investigation and therefore should be a means of last resort. Wiretapping is of course supremely invasive, but this fact obscures the fact that informant use can be similarly intrusive, i.e. when the government threatens friends and colleagues with criminal charges to get them to report on and record people they know. For those who are interested, Chapter Two of the book discusses informant law in detail.


The insider-trading story also hints at important differences between white collar and street/drug crime investigative tactics involving snitching. The culture of informant use is very different in these two realms: white collar informants tend to be (although not always) well controlled, represented by counsel, and provide information about past crimes, whereas drug informants tend to be poorly controlled, unrepresented, and permitted to engage in new criminal activity in order to generate evidence. At the same time, the two arenas share important features. Here's an excerpt from Chapter Seven:

White collar informing shares important characteristics with its street counterpart. Both confer a vast amount of discretionary, unreviewable authority on law enforcement. Both exacerbate power inequalities among potential offenders, as well as between vulnerable offenders and the government. In both arenas, the decision to permit cooperation means that the government is tolerating and forgiving crime, and sometimes even creating an atmosphere in which crime may flourish. And both deprive courts, and thus the public, of significant amounts of power over and information about the operations of the executive.

As informant use becomes increasingly prevalent in white collar investigations, we should expect to see more of the problems of unreliability and continued criminality that have become familiar in the street crime arena.

Original blog post here.

U.S. Attorneys Told to Go After Pot Traffickers, not Patients

From CNN.com

The Justice Department has provided federal prosecutors "clarification and guidance" urging them to go after drug traffickers, but not patients and caregivers, in the 14 states that have medical marijuana laws.

A memo sent to U.S. attorneys said that in carrying out Justice pronouncements made earlier this year indicating a policy shift to end prosecutions against users, authorities should continue to pursue drug traffickers.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana," said Attorney General Eric Holder. "But we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder added.

The memo from Deputy Attorney General David Ogden was sent to U.S. attorneys in Alaska, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Mexico, Maryland, Oregon, Rhode Island, Vermont and Washington.

The issue is particularly significant in California, where there has been uncertainty about the government's approach to raiding marijuana dispensaries, which are increasing and thriving.

At the White House, spokesman Robert Gibbs said, "I'm not going to get into what states should do. The memo that was sent out today to U.S. attorneys simply adds guidelines to a decision that Attorney General Holder talked about in mid-March and has been administration policy since the beginning of this administration in January."

That policy marks a shift from the Bush administration's position, backed by the Supreme Court, that federal agents have a right to pursue marijuana dispensaries and customers any time federal drug law alone has been violated.

The National Organization for the Reform of Marijuana Laws, which advocates legalization of marijuana, declared the government's memo Monday a "major departure in the so-called war on drugs" and "a major victory for citizens who support cannabis law reform."

Drug Enforcement Administration officials disputed that assertion.

"We remain committed to pursuing large-scale criminal drug trafficking organizations," said one DEA official. "If you look at who we've gone after, you'll find they're clearly breaking California law. The threshold is state and local law."

Full story here.

How not to Get Your Ass Kicked by the Police

Attorney General Eric Holder Announces New Medical Marijuana Policy

In what is being recognized as a shift towards a more sensible U.S. drug policy, Attorney General Eric Holder announced a new policy for medical marijuana. Under the policy spelled out in a three-page legal memo, federal prosecutors are being told to prioritize their prosecutions to focus on issues including violent crime and large scale drug traffickers. The Attorney General stated:

It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.

"This is a major step forward," said Bruce Mirken, communications director for the Marijuana Policy Project. "This change in policy moves the federal government dramatically toward respecting scientific and practical reality."

Neighborhood Watch

FOIA and the Veterans Administration

The Department of Veterans Affairs is organized into three large Administrations (the Veterans Health Administration, the Veterans Benefits Administration, and the National Cemetery Administration) and a number of management offices. Additionally, each Administration has a large number of subordinate field activities. Within VA, each Administration, management office and field activity processes its own records.

Because, over time, individual employees of the Department of Veterans Affairs may change job positions, it is not recommended that you address your request to a specific person. Rather, you should include the notation "Freedom of Information Act Request" on the front of your request envelope and also at the beginning of your request letter. In this way you will be sure that the responsible individual receives your request without delay.

If you know the office that maintains the records you are seeking, you should write directly to that office or contact the VA Central Office FOIA/Privacy Act Officer for the custodian of the record. If you do not know, submit the request as follows:

• For medical records, to the Director of the VA medical facility where the individual was last treated or to the FOIA Officer at Veterans Health Administration, VA Central Office.

• For National Cemetery records, to the Director, National Cemetery Area Office, or to the FOIA/Privacy Act Officer, National Cemetery Administration, VA Central Office.

• For other benefits records, to the FOIA/Privacy Act Officer at the VA Regional Office serving the individual's jurisdiction, or to the FOIA/Privacy Act Officer of the
Veterans Benefits Administration, VA Central Office. The VA Toll-Free number (1-800-827-1000) will connect you to the nearest regional office.

• For all Inspector General records, to the Office of the Inspector General, VA Central Office.

• For all other records, to the VA FOIA/Privacy Act Officer, VA Central Office.

The address for the VA FOIA/ Privacy Act Officer is:

Department of Veterans Affairs Director
Records Management Service (005R1B)
810 Vermont Avenue
NW Washington, DC 20420

More information can be found here.

Cricket Cell Phone Subpoena Compliance

Custodian of Records
Attention: Subpoena Compliance
Cricket Communications/Leap Wireless
10307 Pacific Center Court
San Diego, California 92121
Fax: (858) 882-9237
Voice (858) 882-9301

Submission options: Pen register/trap & trace or Wiretap, email or scan to: Intercept@cricketcommunications.com

Other process: email or scan to: Compliance@cricketcommunications.com. If no email, request may be faxed to: (858) 882-9237. Response time approx 2-3 weeks. A fee may be assessed for production of requested information.

MySpace Subpoena Information

Rosita Martinez, Custodian of Records
Compliance@myspace-inc.com
407 N. Maple Drive
Beverly Hills, California 90210
888-309-1314

In order to get the profile's info you'll need a FRIEND ID # or a SPECIFIC URL. Locating either of these will be simple if the account is still active. Visit MYSPACE, locate the correct account, click on the link, and the URL containing the friend ID # will be in web address bar. Eg. http://profile.myspace.com/index.cfm?fuseaction=user.viewprofile&friendid=6221, the friend ID # is 6221.

Fingerprinting Basics

From How Stuff Works: some history of fingerprinting and how scanners work.

The other function of fingerprints is a total coincidence. Like everything in the human body, these ridges form through a combination of genetic and environmental factors. The genetic code in DNA gives general orders on the way skin should form in a developing fetus, but the specific way it forms is a result of random events. The exact position of the fetus in the womb at a particular moment and the exact composition and density of surrounding amniotic fluid decides how every individual ridge will form.

So, in addition to the countless things that go into deciding your genetic make-up in the first place, there are innumerable environmental factors influencing the formation of the fingers. Just like the weather conditions that form clouds or the coastline of a beach, the entire development process is so chaotic that, in the entire course of human history, there is virtually no chance of the same exact pattern forming twice.

Consequently, fingerprints are a unique marker for a person, even an identical twin. And while two prints may look basically the same at a glance, a trained investigator or an advanced piece of software can pick out clear, defined differences.

This is the basic idea of fingerprint analysis, in both crime investigation and security. A fingerprint scanner's job is to take the place of a human analyst by collecting a print sample and comparing it to other samples on record. In the next few sections, we'll find out how scanners do this.

Supreme Court Watch: Oral Argument heard last week in Immigration misadvice case

For those of you out there handling cases in which people might get deported or illegal reentry cases, keep your eyes on Padilla v. Commonwealth of Kentucky. The United States Supreme Court heard oral argument last week on this important case that has the potential to have significant ramifications. The issue presented is whether the Sixth Amendment’s guarantee of effective assistance of counsel require a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and if that misadvice about deportation induces a guilty plea, can that misadvice amount to ineffective assistance of counsel and warrant setting aside the guilty plea? If the Court were to decide that affirmative misadvice by an attorney regarding immigration consequences would entitled a person to challenge a prior conviction, that will raise significant issues for many people who pled guilty only to find themselves deported by surprise. For full briefing and links to oral argument, check Scotuswiki.

Of course, ideally the criminal defense attorneys out there dealing with cases with immigration consequences are careful not to misadvice to begin with. Good investigation plays a role in this as well by obtaining the proper records and being advised of a client's immigration status as early as possible in the case. Depending on the ruling, there could be a few habeas corpus petitions coming to a courtroom near you.

How the Internet Works

Dealing with computer crimes including the transfer of contraband files or dealing with interstate communications? Looking at how a particular email or file was transferred in cyberspace? Here is a handy little article on "How the Internet Infrastructure Works". It includes explanation on routers, servers, internet protocol, email, uniform Resource Locators (URL) and more.

Military Record Requests: Standard Form SF-180

Military personnel records can be used for proving military service, or as a valuable tool in genealogical research. Most veterans and their next-of-kin can obtain free copies of their DD Form 214 (Report of Separation) and other military and medical records.

Standard Form SF-180 can be found here.

American Violet Trailer

Check out this trailer for American Violet. The film is based on the real-life incident in Hearne, Texas where a large segment of the African-American population was busted on false drug charges in a massive operation. One young single mother, with the help of the ACLU, brought the house of cards down. The film is now available on DVD, I-Tunes, and Blu-Ray.

FBI Delves Into DMV Photos in Search for Fugitives

(AP) - In its search for fugitives, the FBI has begun using facial-recognition technology on millions of motorists, comparing driver's license photos with pictures of convicts in a high-tech analysis of chin widths and nose sizes.

The project in North Carolina has already helped nab at least one suspect. Agents are eager to look for more criminals and possibly to expand the effort nationwide. But privacy advocates worry that the method allows authorities to track people who have done nothing wrong.

"Everybody's participating, essentially, in a virtual lineup by getting a driver's license," said Christopher Calabrese, an attorney who focuses on privacy issues at the American Civil Liberties Union.

Earlier this year, investigators learned that a double-homicide suspect named Rodolfo Corrales had moved to North Carolina. The FBI took a 1991 booking photo from California and compared it with 30 million photos stored by the motor vehicle agency in Raleigh.

In seconds, the search returned dozens of drivers who resembled Corrales, and an FBI analyst reviewed a gallery of images before zeroing in on a man who called himself Jose Solis.

A week later, after corroborating Corrales' identity, agents arrested him in High Point, southwest of Greensboro, where they believe he had built a new life under the assumed name. Corrales is scheduled for a preliminary hearing in Los Angeles later this month.

"Running facial recognition is not very labor-intensive at all," analyst Michael Garcia said. "If I can probe a hundred fugitives and get one or two, that's a home run."

Facial-recognition software is not entirely new, but the North Carolina project is the first major step for the FBI as it considers expanding use of the technology to find fugitives nationwide.

So-called biometric information that is unique to each person also includes fingerprints and DNA. More distant possibilities include iris patterns in the eye, voices, scent and even a person's gait.

FBI officials have organized a panel of authorities to study how best to increase use of the software. It will take at least a year to establish standards for license photos, and there's no timetable to roll out the program nationally.

Full article here.

FBI Investigated Coder for Public Publishing

From WIRED (full article here)

When 22-year-old programmer Aaron Swartz decided last fall to help an open-government activist amass a public and free copy of millions of federal court records, he did not expect he’d end up with an FBI agent trying to stake out his house.

But that’s what happened, as Swartz found out this week when he got his FBI file through a Freedom of Information Act request. A partially-redacted FBI report shows the feds mounted a serious investigation of Swartz for helping put public documents onto the public web .

The FBI ran Swartz through a full range of government databases starting in February, and drove by his home, after the U.S. court system told the feds he’d pilfered approximately 18 million pages of documents worth $1.5 million dollars. That’s how much the public records would have cost through the federal judiciary’s pay-walled PACER record system, which charges eight cents a page for most legal filings.

ACCA Cases: Watch for Supreme Court Action

From Sentencing Law and Policy

Johnson v. US is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA). Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute. In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

Remember to get sentencing documents and records to support challenges to prior convictions on potential ACCA cases.

US Has Highest Incarceration Rate

Look a little crowded? According to a report from the Kings College in London now its latest, greatest "World Prison Population List. Check this:

More than 9.8 million people are held in penal institutions throughout the world, mostly as pre-trial detainees (remand prisoners) or as sentenced prisoners.
Almost half of these are in the United States (2.29m), Russia (0.89m) or China (1.57m sentenced prisoners). The United States has the highest prison population rate in the world, 756 per 100,000 of the national population, followed by Russia (629), Rwanda (604), St Kitts & Nevis (588), Cuba (c.531), U.S. Virgin Is. (512), British Virgin Is. (488), Palau (478), Belarus (468), Belize (455), Bahamas (422), Georgia (415), American Samoa (410), Grenada (408) and Anguilla (401).

More info at Sentencing Law and Policy and Grits for Breakfast.