"Fair Sentencing" Laws Eliminate Mandatory Minimum Sentences, Sentencing Disparities for Certain Drug Offenses

January 26, 2015

CocaineHydrochloridePowder.jpgLegislation signed into law last fall in California eliminates sentencing disparities for drug offenses involving powder and crack cocaine, a relic of 1980s federal anti-drug policy that is being slowly rolled back. In 1986, Congress imposed considerably harsher penalties for drug offenses involving cocaine base, commonly known as crack cocaine, than for offenses involving cocaine hydrochloride, or powder cocaine. Some states also passed laws imposing disparate sentences. Congress passed the Fair Sentencing Act in 2010, which reduced but did not eliminate the sentencing disparity between the two drugs. Subsequent legislation has made additional improvements to the sentencing system. California's new law eliminates the disparity entirely.

The Anti-Drug Abuse Act of 1986 established a "100 to 1" sentencing disparity between powder and crack cocaine. Possession of five grams, or roughly one-fifth of an ounce, of crack cocaine carried a mandatory minimum prison sentence of five years without parole. The same sentence applied to possession of 500 grams of powder cocaine, equal to slightly over one pound. The same ratio applied to larger amounts of both substances. Whatever Congress' intent in passing this law, it resulted in a substantial racial disparities in enforcement, along with numerous other injustices.

In 2010, Congress addressed the issue by passing the Fair Sentencing Act, which reduced the sentencing disparity from 100-to-1 to 18-to-1. The threshold amount of powder cocaine required for a federal felony possession charge remained 500 grams, while the amount of crack cocaine was increased from five to 28 grams. This may still seem like a dramatic difference, but it is a vast improvement over the 1986 law. The bill also eliminated the five-year mandatory minimum sentence for first-time offenses involving possession of small amounts of crack cocaine. A bill that would further reduce the sentencing disparity, the Smarter Sentencing Act of 2014, did not pass in the last Congressional session.

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Police Violated Resident's Fourth Amendment Rights by Lying About 911 Calls to Gain Entry to Homes, Court Rules

January 15, 2015

Point_d_interrogation.jpgA judge ruled last summer that police violated a woman's Fourth Amendment rights by using false information to obtain consent to search her home. Police are allowed to make misleading or even false statements during investigations, although the question of how far they may go has been the subject of much courtroom dispute. Most court decisions involve police interrogations in which an officer is trying to get a suspect to confess. As a general rule, police are permitted to mislead a suspect regarding specific facts about the investigation, but not to fabricate material evidence, like documents or photographs, nor to misrepresent the law.

According to local news, several police officers in Durham, North Carolina obtained consent to enter people's homes by falsely stating that they had received 911 calls regarding those properties. An officer allegedly found a small amount of marijuana and drug paraphernalia inside one woman's house after she allowed him to enter. He admitted to the ruse in court, but he testified that it was permitted by department policy. The police chief denied this and later formally banned the practice. The court suppressed the evidence, ruling that consent to the search was obtained under false pretenses.

The U.S. Supreme Court's landmark decision on false statements by police is Frazier v. Cupp, 394 U.S. 731 (1969). The defendant confessed after the interrogating officer told him, falsely, that his suspected accomplice had spoken to police and implicated him. The court held that the false statements were relevant to the question of the confession's admissibility, but that the "totality of the circumstances" did not indicate a violation of the defendant's rights. Id. at 739. Later cases explored what circumstances might render a confession inadmissible.

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Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone

January 8, 2015

encryption2.pngA Virginia judge issued an important ruling regarding how the Fourth and Fifth Amendments intersect with the latest cell phone technology in Virginia v. Baust, No. CR14-1439, order (Va. Cir. Ct., Va. Beach, Oct. 28, 2014). Police and prosecutors often seek access to a defendant's cell phone during an investigation. While the Supreme Court ruled last year in Riley v. California, 573 U.S. ___ (2014), that police must obtain a warrant to search the digital contents of a suspect's cell phone, the question of whether a person may be compelled to unlock security encryption to give law enforcement access to his or her phone remains largely unresolved.

Smartphones, such as Apple's iPhone, have become an indispensable tool for many people. Besides being a phone, people use them for text messaging, email, web browsing, personal finance, photographs and videos, games, and countless other functions. Our smartphones tend to accumulate a substantial amount of personal information, which makes them very attractive to law enforcement investigations.

The Supreme Court established the requirement for a warrant in Riley, but what happens if police have legal authority to access a smartphone, but they are unable to do so because of security encryption? Most phones allow users to set a passcode, usually a four-digit number, to unlock the phone. Some newer phones, such as the latest iPhone models, allow users to unlock the phone with their fingerprints. This question came before a Circuit Court judge in Virginia Beach, Virginia in Baust, when prosecutors moved to compel the defendant to provide the passcode to his phone, or use his fingerprint to allow access. The defendant argued that this would violate his Fifth Amendment right against self-incrimination.

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Judge Increases Defendants' Sentences in Drug Case Based on Acquitted Conduct, Supreme Court Rejects Their Appeal

December 4, 2014

Court_of_Kings_Bench_(1808).jpg"Innocent until proven guilty" is a fundamental principle of our criminal justice system, except that it is often not nearly so simple. The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right to a trial by jury. If a trial results in an acquittal, the state cannot charge a person with the same offense again. Even if a jury acquits a person of a particular offense, however, a judge may still be able to use evidence of that offense in determining sentencing for a different offense. This recently happened in a case where a conviction of one drug offense resulted in a substantial prison sentence, based on evidence of a different offense for which the jury acquitted the defendants. The Supreme Court declined to hear the defendants' appeal in October, although an unlikely alliance of Justices Scalia, Thomas, and Ginsberg strongly dissented.

The three defendants who appealed to the Supreme Court were charged with distribution of crack cocaine and conspiracy to distribute crack cocaine. After a trial that lasted nearly eight months, the jury spent about two months deliberating. It convicted the defendants on a single count each of distribution of 500 grams of crack, and it acquitted them on all of the conspiracy charges. Each defendant faced at least five years in prison, up to a maximum of 20-30 years. 21 U.S.C. § 841(b)(1)(B).

At sentencing, the district court found by a preponderance of evidence that the defendants had engaged in a conspiracy to distribute crack. It took the conspiracy into account when pronouncing sentences ranging from 15 to more than 18 years. The defendants appealed, arguing both that the court's findings regarding the conspiracy were procedurally unreasonable and that they violated their Sixth Amendment right to have questions of fact decided by a jury.

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Fake Twitter Account in Mayor's Name Leads to Police Raid, Drug Charges

December 1, 2014

hashtag-27371_640.jpgA parody Twitter account using the name of the mayor of Peoria, Illinois has led, through an extremely strange series of events, to a federal civil rights lawsuit and felony drug charges. Police raided a house in April 2014 and seized multiple computers in a purported investigation of false impersonation of a public official, a misdemeanor under Illinois law. No charges were ever filed in connection with the Twitter account, but police claim to have found drugs and drug paraphernalia linked to another resident of the house who had no connection to the account. A judge denied the roommate's motion to suppress, ruling that the search warrant was supported by probable cause, but that police needed to explain why they were searching for drugs.

The Twitter account, @PeoriaMayor, was the result of boredom, according to its creator, Jon Daniel. The posts, which were generally described as "raunchy" and "profane," drew the attention of Peoria Mayor Jim Ardis, who was not amused. Ardis complained to Twitter, which suspended the account and then notified the police. Police officers executed a search warrant in mid-April on the house where Daniel lived with several roommates. They seized every electronic device in the house connected to the internet and arrested the three people who were present at the time. They picked up two additional residents at their workplaces and took them to the station for questioning.

The prosecutor declined to bring charges under Illinois' false impersonation statute, which requires proof of impersonating a public official or employee "in furtherance of the commission of a felony" or "for the purpose of effectuating identity theft." 720 I.L.C.S. 5/17-2(b)(2.3), (2.7); see also Tex. Pen. Code § 37.11, 18 U.S.C. § 912. Daniel filed a lawsuit against the city and numerous officials in June, alleging violations of his First Amendment right to free speech and his Fourth Amendment right against unreasonable searches and seizures. Daniel v. City of Peoria, et al, No. 1:14-cv-01232, complaint (C.D. Ill., Jun. 11, 2014).

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Judge Sentences Mother and Son in Credit Card Fraud Scheme that Targeted Celebrities

November 25, 2014

Kim_Kardashian_2011.jpgA U.S. district judge accepted guilty pleas earlier this year from a mother and son charged with numerous counts, including wire fraud and identity theft, in connection with alleged credit card fraud. The defendants were accused of taking over the credit card accounts of celebrities and government officials. United States v. Flores, et al., No. 6:13-cr-00225, indictment (M.D. Fla., Sep. 4, 2013). The son pleaded guilty to one count each of aggravated identity theft and access device fraud. The judge sentenced him to 36 months' imprisonment. The mother pleaded guilty to one count of making false statements to federal agents and was sentenced to three years' probation.

A Secret Service investigator filed a complaint and affidavit with a magistrate, United States v. Flores, et al, 6:13-mj-01437, crim. complaint (M.D. Fla., Aug. 6, 2013), outlining the alleged scheme. The investigator received a report from American Express in May 2013 regarding a call from a person claiming to be the celebrity Kim Kardashian, who had the required personal information to access Kardashian's account. The person changed the social security number on the account to the defendant son's social security number, changed the primary address to the defendant's address, and requested issuance of a new card to be sent to that address. The following day, another card was requested for Kardashian's account, as well as one for the account in the name of her mother, Kris Jenner.

FBI agents went to the defendants' home after the delivery of the credit cards and were granted entry by the defendants. While the defendants denied knowledge of any wrongdoing, agents noted a WiFi signal that had the same name as a known alias of the son. The defendants' apartment manager told agents that the son had once left a photocopy of a social security card with a similar alias in the apartment complex copier, and that the defendants had made rent payments using checks from several accounts that had been closed due to suspicion of fraud.

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Fifth Circuit Rules on Evidence Requirements in Counterfeit Money Case

November 19, 2014

US100DollarBills-Old&2013.jpgThe Fifth Circuit Court of Appeals recently considered a defendant's claim that a district court erred in his trial, in which he was convicted of passing counterfeit money, by admitting the counterfeit bill into evidence. The appellate court reviewed the standards for authentication of evidence and the chain of custody of the bill. It concluded that the U.S. Attorney had met its burden of authenticating the bill and, after considering several other issues raised by the defendant, affirmed the district court's verdict and sentence. United States v. Davis, 754 F.3d 278 (5th Cir. 2014).

The defendant was accused of attempting to pass forged $100 bills at a Taco Bell on March 9, 2012, and at a Dollar Tree on April 11, 2012. A grand jury indicted him on two counts of uttering counterfeit obligations or securities. 18 U.S.C. § 472. Federal law prohibits passing or attempting to pass counterfeited, forged, or altered currency with the intent to defraud. A single count can result in up to 20 years in prison.

The court conducted a bench trial and found him guilty of the second count, which involved Dollar Tree. It acquitted him of the count involving Taco Bell. The court sentenced the defendant to 34 months in prison, followed by three years of supervised release, and a special assessment of $100. The sentence was based on a finding that the defendant had produced the counterfeit bills or had the means of producing counterfeit bills in his possession. Davis, 754 F.3d at 281, citing U.S. Sentencing Guidelines § 2B5.1(b)(2)(A).

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One Seattle Police Officer Responsible for Eighty Percent of All Marijuana Tickets for the First Half of 2014; Municipal Court Drops All of the Cases

November 6, 2014

Space_Needle002.jpgWashington state is one of only a few U.S. states to legalize recreational marijuana use. Public use is still prohibited, but possession by adults of certain marijuana products is no longer illegal under state law. Enforcement of the new law has apparently been controversial for one Seattle police officer, who wrote 80 percent of the tickets issued in the city for public marijuana use during the first six months of 2014. In September, the City Attorney and the Chief of Police sought to dismiss all of the cases originating during that time period, stating that he believes the officer was motivated by opposition to the new law.

Washington voters approved Initiative 502 (I-502) on Election Day 2012 by about 56 to 44 percent. The measure made possession and private use of small amounts of marijuana legal for adults 21 years of age and older. Public use is a class 3 civil infraction rather than a criminal offense. WA Rev. Code § 69.50.445. Marijuana remains a Schedule I controlled substance under federal law. WA Rev. Code § 69.50.101(d), 21 C.F.R. § 1308.11(g). Federal authorities may still enforce federal drug law in Washington under the doctrine of dual sovereignty, as the U.S. Supreme Court held with regard to California's medical marijuana statute in Gonzales v. Raich, 545 U.S. 1 (2005).

Colorado voters approved Amendment 64 by a similar margin on the same day as voters in Washington. On Election Day 2014, voters in Alaska, Oregon, and the District of Columbia joined these two states in legalizing the possession of small amounts of marijuana for recreational use. Voters in Guam, a U.S. territory in the western Pacific Ocean, approved a measure legalizing marijuana for medical use, while voters in Florida rejected a similar measure.

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Courts Rule on Issues of Data Privacy, with Important Implications for Electronic Monitoring and Searches

October 30, 2014

Screen Shot 2014-10-30 at 1.48.10 PM.pngTwo recent appellate decisions addressed important legal questions involving communications technology and data privacy. One case involved allegations that the internet company Google violated the Wiretap Act, 18 U.S.C. § 2511, by obtaining personal data from unsecured home wireless computer networks, or "WiFi networks." The Ninth Circuit Court of Appeals rejected Google's claim that they only obtained "public" information. Joffe v. Google, 746 F.3d 920 (9th Cir. 2013). In the other case, a Florida appellate court reversed a defendant's conviction on Fourth Amendment grounds, criticizing the state's argument that police could not obtain a search warrant for cell phone data because of a non-disclosure agreement with the manufacturer of the cell phone tracking technology. Thomas v. Florida, 127 So.3d 658 (Fla. App. 1st Dist. 2013).

"Street View" is a component of Google's "Maps" service. It allows users to access panoramic images of certain areas by clicking on maps on Google's website. Google obtains many of these images by deploying cars equipped with cameras that record 360-degree images. The plaintiff in Joffe alleged that these cars were illegally accessing WiFi networks and recording information about them. In addition to basic location information, the cars were also allegedly obtaining "payload data" from unsecured networks, which might include email messages, passwords, and anything else transmitted over the network.

The lawsuit, a putative class action, alleged violations of the Wiretap Act. Google claimed that the information it collected was "readily accessible to the general public" and therefore exempt from the Wiretap Act. 18 U.S.C. § 2511(2)(g)(i). The district court denied Google's motion to dismiss on this ground, and the Ninth Circuit affirmed the lower court's ruling. The Ninth Circuit noted that the exemption claimed by Google explicitly applied only to a "radio communication," id. at § 2510(16), and held that WiFi data transmissions are not "radio communications." Joffe, 746 F.3d at 936.

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U.S. Supreme Court Rules on "Straw Buyer" Gun Law

October 27, 2014

GLOCK_19.JPGThe federal Gun Control Act (GCA) of 1968, 18 U.S.C. § 921 et seq., regulates the sale of firearms by licensed dealers. It also prohibits certain individuals from owning or possessing firearms. A "straw buyer" or "straw purchaser" is someone who purchases a gun for someone else, possibly a prohibited buyer, without disclosing this on the form required by the federal government for gun sales. The U.S. Supreme Court recently considered whether it violates the GCA for someone to conduct a straw purchase of a gun for someone who is not a prohibited buyer. In a 5-4 decision, the Court held that it is a violation. Abramski v. United States, 573 U.S. ___, 134 S.Ct. 2259 (2014).

People who are prohibited by the GCA from owning or possessing a gun include people who have been convicted of a felony, undocumented immigrants, people committed to mental institutions, drug addicts, and fugitives. 18 U.S.C. § 922(g). Licensed dealers are prohibited from selling a gun to anyone whom they know, or have "reasonable cause to believe," is a prohibited buyer. Id. at § 922 (d). A purchaser typically must appear in person to purchase a gun and provide personal identifying information to the dealer by completing Form 4473, the "Firearms Transaction Record." The gun dealer checks the form against a national database of prohibited buyers. A person commits a federal crime if he or she "knowingly...make[s] any false or fictitious oral or written statement" in connection with buying a gun from a licensed dealer. Id. at § 922(a)(6).

Question 11.a. on Form 4473 asks whether the purchaser is the actual buyer. The defendant in Abramski was a former police officer who intended to buy a gun for his uncle using a discount he thought he could get by showing his police identification. He falsely answered "yes" to Question 11.a., but he then learned he could no longer use the discount. He was indicted for false statements under § 922(a)(6) and unauthorized firearms dealing under § 922(a)(1)(A). He entered a conditional guilty plea, which allowed him to appeal.

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Appellate Court Finds Fourth Amendment "Right to Delete" Data Seized in Overbroad Computer Searches

October 15, 2014

Digital_evidence.jpgThe Second Circuit Court of Appeals issued a ruling recently that could have important implications for Fourth Amendment rights regarding computer data. Often, when investigators obtain a search warrant for digital evidence, they make a copy of the entire hard drive. This is generally considered less burdensome than either seizing the computer itself or reviewing data from the computer on-site. It also almost always results in a collection of data that far exceeds the scope of the warrant. The issue before the Second Circuit was whether law enforcement could use data obtained with a valid search warrant, but that was outside the scope of that warrant, in a subsequent criminal matter. The court ruled that any data seized during a search that is not responsive to the warrant authorizing the search must be deleted. United States v. Ganias, No. 12-240-cr, slip op. (2d Cir., Jun. 17, 2014).

The defendant is an accountant who began providing accounting services to two businesses, American Boiler (AB) and Industrial Property Management (IPM), in 1998. The Criminal Investigative Command (CIC) of the Army began investigating IPM, which had a maintenance and security contract for a vacant Army facility, in 2003, based on a tip that the company was engaging in improper activities. CIC investigators obtained several search warrants related to IPM in November 2003, including one to search the defendant's office. When they executed the warrant, the investigators seized paper records, and computer specialists made "forensic mirror images" of the hard drives of three computers. Id. at 5.

According to the court, the CIC investigators viewed all electronic data, even data that was outside the scope of any warrant, as "evidence that were to be protected and preserved." Id. at 7. While they were reviewing the data obtained from the defendant's computers, CIC investigators invited the IRS to join the investigation. In late 2004, IRS investigators began to suspect that the defendant was misreporting AB's income, and they officially expanded their investigation in 2005 to include him.

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Microsoft Fights Search Warrant Seeking Email Data Stored on Overseas Servers

October 9, 2014

Img_51614_critical-data-centre-at-uni-of-hertfordshire.jpegThe software company Microsoft has been at the center of a dispute with the federal government over the government's authority to seize digital evidence. Federal investigators tried to execute a search warrant for email data stored on Microsoft servers physically located in Ireland. A magistrate judge denied Microsoft's motion to quash the warrant but stayed its order pending an appeal. In re a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation ("Microsoft"), No. 1:13-mj-02814, mem. and order (S.D.N.Y., Apr. 25, 2014). Several other technology companies joined Microsoft in opposing the search warrant. A district judge affirmed the magistrate's order and lifted the stay, but Microsoft continues to refuse to comply with the warrant. An appeal is now pending. Microsoft Corp. v. United States, No. 14-2985, am. notice of appeal (2nd Cir., Sep. 10, 2014).

The case involves Microsoft's web-based email services, which it operates under domain names like Hotmail.com and Outlook.com. Users can access their email accounts from a web browser on almost any device connected to the internet. Microsoft stores email messages on servers at data centers located both within the United States and in other countries. The company tries to store a user's data at the data center located closest to him or her. A magistrate judge issued a search warrant to federal investigators in December 2013, seeking data relating to a specific email account. When Microsoft realized that the data covered by the warrant was located on servers in Dublin, Ireland, it filed a motion to quash the warrant "to the extent that it directs the production of information stored abroad." Microsoft, mem. and order at 5.

The magistrate, in ruling on the motion to quash, noted that the Stored Communications Act (SCA), 18 U.S.C. §§ 2701-12, allows the government to obtain electronic communications data by warrant, subpoena, or court order. The question for the court was whether the servers' location outside of the United States put them outside of the federal government's jurisdiction. The magistrate held that the servers were within the government's jurisdiction under the SCA. While the servers were located in a foreign country, the judge found that the controlling factor was that they were controlled from Microsoft's offices in the U.S.

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Firearms Distributor Indicted for Mail and Wire Fraud for Alleged Bribes, Kickbacks

September 26, 2014

Corrupt-Legislation-Vedder-Highsmith-detail-1.jpegFederal prosecutors have charged a firearms distributor with multiple counts of wire fraud and money laundering for allegedly paying illegal bribes to executives of a pistol manufacturer in order to receive preferential treatment over his competitors. United States v. Ralph, et al, No. 5:14-cr-40066, indictment (D. Kan., Jun. 4, 2014). Four co-defendants, two of the manufacturer's executives and their wives, are facing the same charges. After pleading not guilty to all charges, the lead defendant moved for a continuance of the case, claiming that the complexity of the case merited exclusion of time under the federal Speedy Trial Act.

The lead defendant owns a firearms distribution business in Olathe, Kansas, which does a substantial amount of business with the pistol manufacturer Glock. According to the indictment, Glock licenses independent distributors in two different sales channels. Distributors licensed in the "law enforcement market" (LE market) can only sell Glock pistols to law enforcement agencies within a designated geographic area, while distributors in Glock's "commercial market" can sell to the public with no geographic restriction. Retail prices are lower for the LE market, and pistol sales in the LE market include more magazines than those in the commercial market. The company uses color-coded Universal Product Code (UPC) labels to differentiate pistols intended for each market.

The indictment alleges that the lead defendant paid bribes and kickbacks to two Glock executives, who are also defendants in the case. The executives allegedly provided him with the means to modify the labels on pistols intended for the LE market and sell them on the commercial market at higher prices. At least 14,000 pistols intended for the LE market were allegedly sold to commercial buyers, including retail stores like Cabela's. The executives' wives are named as co-defendants and are accused of forming limited liability companies to conceal the bribe and kickback payments.

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Federal Judge Grants Default Judgment in Forfeiture Action for Money that Allegedly Smelled Like Marijuana

September 23, 2014

131298863_626da5f770_z.jpgA federal judge in Minnesota granted a default judgment in a civil forfeiture case involving cash seized at the airport, which the government kept for a seemingly long time while it tried to build a case. The final judgment was, legally speaking, based on the failure of the money's alleged owner to file an answer or a verified claim. The case began, however, with claims by agents of the Department of Homeland Security (DHS) that the money "had an overwhelming smell of marijuana." United States v. $138,121.00 in U.S. Currency, No. 0:14-cv-00198, verif. complaint at 4 (D. Minn., Jan. 21, 2014). DHS agents did not find any drugs during the search at the airport. It took another nine months to find any connection to actual drugs, during which time the money remained in the government's custody. By the time prosecutors filed the forfeiture complaint, more than a year had passed since the search.

According to the government's complaint, filed on January 21, 2014, DHS began investigating Robert Casteel on suspicion of marijuana trafficking in January 2013. Investigators learned that he would be traveling through the Minneapolis/St. Paul Airport on January 17, 2013, and the complaint claims that they knew he would be carrying a large amount of cash constituting proceeds from drug trafficking. Police officers approached Casteel, who reportedly had a duffel bag and two carry-on roller bags in his possession, in a gate area. He allegedly admitted to having "between $120,000 and $200,000 in cash." Id. at 3.

Carrying a large amount of U.S. currency is not, by itself, a crime. The officers brought a drug-sniffing dog to the gate area, and prosecutors alleged that it alerted to Casteel's duffel bag and one of the roller bags. They seized the two bags and allowed Casteel to board his flight, which was bound for Phoenix, Arizona. The bags allegedly contained $138,121 in cash, multiple documents, a laptop computer, and an iPad. The documents allegedly contained information "related to marijuana cultivation and distribution," id. at 4, and the cash allegedly had the aforementioned smell.

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The Strange World of Criminal Copyright Enforcement

September 17, 2014

Pirate_flag_during_TPB_trial2.jpgTwo years after a court in Sweden affirmed his conviction for copyright law violations and sentenced him to eight months in prison, police arrested Peter Sunde, one of the founders of a popular website frequently accused of copyright infringement. Sunde and three others were convicted by a Swedish court in 2009 of assisting the distribution of illegal content online. Copyright infringement is generally treated as a civil claim, but the laws in the United States and other countries provide for criminal penalties in certain circumstances. Sunde's case relates to the growing legal field of cybercrime because of the internet's potential for wide distribution of infringing materials.

The Pirate Bay website allows users to download media, including movies, video games, and music, using BitTorrent, a peer-to-peer network protocol that allows people to distribute large amounts of data over the internet. Critics allege that this, much like other services that came before it, has led to massive amounts of copyright infringement. Other popular websites that allegedly serve similar functions have also been the subject of criminal investigations and prosecutions, including the raid on the New Zealand home of Kim Dotcom, the proprietor of the now-shuttered MegaUpload website.

In the U.S., federal copyright law includes both civil and criminal methods of copyright enforcement. Remedies in civil claims include injunctive relief and monetary damages, and a plaintiff is not necessarily required to prove that the defendant deliberately infringed a copyright. Criminal copyright claims have a much stricter burden of proof regarding a defendant's mens rea, or state of mind. Prosecutors must prove beyond a reasonable doubt that the defendant acted "willfully" to infringe a copyright. 17 U.S.C. § 506, 18 U.S.C. § 2319.

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