Texas Criminal Lawyer Blog

The week beginning Monday, April 15, 2013 may be the most tumultuous in the history of Boston, Massachusetts, and it surely ranks high for the nation as a whole. With one suspect in the Boston Marathon bombing dead and the other in custody, much attention turned to reports that the FBI did not read the Miranda warnings, the well-known list of a criminal suspect's rights, to the surviving suspect upon or soon after his arrest. Law enforcement cited the "public safety doctrine" as the basis for its decision to withhold the Miranda warnings. This led to much discussion in the news media and elsewhere about the Miranda warnings, which demonstrated a wide range of interpretations of what the warnings are and what they mean. Criminal defense attorneys know that the Miranda warnings are a critical part of protecting criminal defendants' constitutional rights, such as the right against self-incrimination and the right to legal counsel. It is worth reviewing the obligations of law enforcement under Miranda and the rights that the warnings protect.

Police took the surviving suspect, Dzhokhar Tsarnaev, into custody the night of Friday, April 19. Authorities announced soon after that they had not read him the Miranda warnings, and they did not say when they intended to do so. They cited concerns about possible other dangers to the public and the need to question the suspect, which in turn led to some public concern that police would effectively suspend the due process rights of Tsarnaev, who is a naturalized United States citizen, in the interest of "national security." The news media reported on Sunday, April 21 that law enforcement officers had read Tsarnaev his rights.

A trader pleaded guilty to two counts of wire fraud and conspiracy to commit wire fraud in federal court after waiving indictment. U.S. v. Miller, No. 3:13-cr-00075, information (D. Conn., Apr. 15, 2013). Prosecutors accused the trader of two separate schemes to acquire unauthorized shares of Apple, Inc. This allegedly put a broker-dealer at risk of substantial loss, and it caused the trader's employer to incur losses exceeding $5 million.

The defendant, David Miller, worked at Rochdale Securities LLC as a licensed institutional sales trader in Stamford, Connecticut. According to the criminal information, his responsibilities included "covering the accounts of certain institutional clients" and executing trades on behalf of those clients. Information at 1. Rochdale paid him in commissions based on those trades. Prosecutors described two separate schemes that led to the charges against him.

Conspiracy: The first charge against Miller involved allegations of a conspiracy between Miller and an employee of a client company, identified in the information as "Customer #1." The alleged co-conspirator would submit orders for Apple stock on October 25, 2012, the day the company was expected to post its quarterly earnings report. The co-conspirator's orders were, prosecutors argued, intentionally written in such a way that Miller could plausibly claim he read them wrong. After the co-conspirator wrote the number 125 on a buy order, Miller bought 125,000 shares of Apple, purportedly on behalf of Customer #1. By the end of the trading day, he had acquired over 1.6 million Apple shares.

In a decision based on a long-awaited en banc rehearing, the Ninth Circuit Court of Appeals limited the authority of law enforcement to search computers seized at border crossings. United States v. Cotterman, No. 09-10139, slip op. (9th Cir., Mar. 8, 2013). The court drew a distinction between a simple review of a computer's files and an in-depth forensic analysis of a computer, finding that border agents must have "reasonable suspicion" in order to conduct an in-depth search without a warrant. The decision also includes an acknowledgment that computer searches, or searches of any other digital medium, differ fundamentally from searches in the physical world.

Border agents seized the defendant's laptop computer as he and his wife were crossing the border from Mexico into the U.S. in April 2007, after receiving a computerized alert that the defendant had been convicted of child molestation fifteen years earlier. Agents conducted an initial search of his laptop and found nothing incriminating. Rather than return the computer, they shipped it to another location, about 170 miles away, where a "comprehensive forensic examination" revealed child pornography images. Slip op. at 6. This discovery occurred more than two days after the seizure of the laptop, and investigators continued using forensic software on the computer until they discovered more material after about five days. The allegedly pornographic images were found in the computer's "unallocated space," meaning a user had deleted them from the hard drive. Id. at 10, n. 5.

The U.S. Constitution prohibits laws that apply retroactively, or "ex post facto" laws. The state therefore cannot prosecute a person for an act that was not illegal when it allegedly occurred, and cannot impose punishment that was not part of the statute at the time of conviction. The Maryland Court of Appeals, that state's highest court, recently ruled that a statute requiring a person to register as a sex offender violates the Constitution's ex post facto clause, when the person's conviction occurred before the statute was enacted. Doe v. Dep't Of Pub. Safety & Corr. Servs., No. 125, September Term 2011, slip op. (Md. Ct. App., Mar. 4, 2013). This ruling diverges from U.S. Supreme Court cases on the topic, which have held that registration is not a "punishment" and therefore does not violate the ex post facto clause. The ruling could have substantial impact in drug crime cases and other cases with possible consequences beyond fines or jail.

The defendant in Maryland's Doe case pled guilty to child sexual abuse in 2006 for an alleged incident that occurred in 1983 or 1984. His plea agreement did not mention sex offender registration. The judge sentenced him to terms of imprisonment and probation and ordered that he register as a sex offender. The court struck the registration order when the defendant argued that the sex offender registration statute in effect at that time did not retroactively apply to him. The Maryland General Assembly enacted a law in 2009, however, that required people who committed an offense before October 1, 1995 but were convicted on or after that date, to register. The defendant registered under protest. The state changed the law again in 2010, making the defendant, based on his conviction, a Tier III sex offender, "the most severe designation requiring lifetime registration." Doe, slip op. at 7. By then, the defendant had already filed suit seeking a declaratory judgment that he was not required to register because the statute could not retroactively apply to him, and that registration violated the terms of his plea agreement.

Surveillance by unmanned aerial vehicles (UAVs), also known as drones, is causing concern among criminal defense attorneys and privacy advocates, as more and more law enforcement agencies acquire unmanned airplanes and helicopters. The constitutionality of warrantless drone surveillance remains in dispute. In the Texas Legislature, a House bill proposes regulating the use of drones, including requiring warrants for most surveillance operations.

Numerous police departments around the country have sought authorization to operate drones, which would allow them to monitor citizens unobtrusively from the air. According to the Federal Aviation Administration (FAA), eighty-one cities, counties, state and federal agencies, military branches, and public universities applied for licenses in 2012. Arlington, Texas, for example, has two remote-controlled helicopters purchased in 2012 for over $200,000. The Arlington Police Department was among the applicants listed by the FAA, as well as the Houston Police Department, the statewide Texas Department of Public Safety, and two campuses of Texas A&M University.

FAA regulations currently prohibit commercial drone use, such as taking photos or videos from the air for business purposes. A bill introduced in the Texas House by State Rep. Lance Gooden (R-Terrell), would prohibit any photography or videography of private property by a drone without the owner's or occupant's permission. It allows exceptions for law enforcement with a warrant or exigent circumstances and for "border security." Opponents say the bill is too vague, restricting beneficial drone uses along with the abuses. Some sort of statute may be necessary, however, to resolve privacy and due process questions left by caselaw.

Amanda Knox, the American college student convicted, then acquitted, of the murder of her roommate in Italy, is back in the news after the Italian Supreme Court overturned her 2011 acquittal and ordered a new trial. Knox returned to the U.S. after her release from prison, and reportedly has no intention of returning to Italy for the new trial. The question raised by the latest court proceedings is this: how do the Italian prosecutors keep getting opportunities to retry the case? In the American criminal system prosecutors typically do not get this many attempts at a conviction because of a principle in the Fifth Amendment known as "double jeopardy." The Knox case highlights how this principle benefits American defendants and, perhaps, serves as a check on overzealous prosecutors.

The Fifth Amendment to the U.S. Constitution states that no one may "be twice put in jeopardy of life or limb" for the same crime. If a judge or jury acquits a defendant of an offense, then the same court cannot try the defendant for that crime again. If a court dismisses the charges against a defendant after a certain point in a trial, the prosecution is barred from bringing the same charges again. A prosecutor could bring a charge under a different statute after an acquittal for the same alleged act, but only if the new charge "requires proof of a different element." Blockburger v. U.S., 284 U.S. 299, 304 (1932). One purpose of double jeopardy is to provide closure for criminal defendants after an acquittal, and also to encourage prosecutors to do a thorough investigation before initiating a case. Knox's prosecution does not appear to be subject to such a restriction.

The federal crime of "honest services fraud" has been the subject of much debate and litigation, with defendants claiming that the statute does not define the offense with enough specificity to pass constitutional muster. The U.S. Supreme Court agreed in 2010, limiting the use of the statute to specific situations involving bribes and kickbacks. This still left questions about the mental state required by the statute. A recent decision in U.S. v. Ring, No. 11-3100, slip. op. (D.C. Cir., Jan. 25, 2013) holds that the prosecution must prove that the defendant intended to influence an official act through a bribe or kickback, but does not need to prove that a public official accepted the bribe or kickback.

"Honest services fraud" appears in the U.S. Code as an addition to the definition of a "scheme or artifice to defraud," stated as "depriv[ing] another of the intangible right of honest services." 18 U.S.C. § 1346. The defendant, Kevin Ring, worked as a lobbyist in Washington, DC for Jack Abramoff, who was himself convicted of various fraud-related offenses in 2006. The federal investigation into Abramoff's activities, which involved allegations of bribes to public officials, eventually ensnared Ring and other members of Abramoff's lobbying team. A federal jury convicted Ring of three counts of honest services fraud, one count of paying an illegal gratuity, and one count of conspiracy. Ring's trial was postponed to await the Supreme Court's ruling in a case reviewing the constitutionality of the honest services fraud statute.

Federal and state drug laws do not just target controlled substances themselves, such as marijuana. They also criminalize possession or distribution of certain amounts of "precursor" materials used in the production of synthetic drugs like methamphetamine. Pseudoephedrine, a precursor for methamphetamine, is classified as a controlled substance, and is also an ingredient in many cold and allergy medicines. As a result, people who merely suffer from severe allergies may find themselves the subject of drug charges.

A criminal case in Iowa illustrates the problem for allergy sufferers who may inadvertently violate complicated legal restrictions on otherwise-legal medications. A woman with no history of drug use or drug-related arrests now faces charges for conspiracy to manufacture, deliver, or possess a methamphetamine-related substance with the intent to distribute it. Prosecutors, based on an investigation by the Southeast Iowa Inter-Agency Drug Task Force, claim that she was involved in methamphetamine ring from August 2010 through October 2012. Several other people have also been identified as possible co-conspirators. The woman claims that she never purchased more than the legal limit of pseudoephedrine-containing medications, and that every purchase was for the treatment of her own allergies.

Less than a century ago, the simplest way to spy on someone's communications was to intercept and read their mail. The means of communication have changed since then, but so has law enforcement. A sophisticated technology known as international mobile subscriber identity locators, or "IMSI catchers," can track wireless communications and locate mobile devices. Privacy advocates and criminal defendants are now pushing back against overreaching by law enforcement, since IMSI catchers can locate an individual suspect and every other nearby mobile device user. Courts remain divided on how to view IMSI catchers under the Fourth Amendment. Recent Supreme Court cases have applied strict limits on how police may use GPS tracking devices and infrared surveillance, and IMSI catchers may come under their review soon.

A popular brand of IMSI catcher among law enforcement is called the Stingray. By mimicking a cellphone tower, it tricks nearby mobile devices into sending it signals. This allows the device to identify every mobile device within range, determine their locations, and track incoming and outgoing calls. It can record the content of phone conversations on some devices. The government has reportedly gone to great lengths to avoid disclosing the details of its use of the Stingray, leading groups like the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) to campaign for transparency.

A current federal criminal case in Arizona, United States v. Rigmaiden, No. 2:08-cr-00814, is the scene of a showdown between privacy advocates and the government over the Stingray. According to the EFF, a federal judge in California ordered Verizon to help law enforcement find the defendant, Daniel Rigmaiden, by providing the location of a cellphone believed to belong to him. The government, the EFF says, then conducted their own investigation using a Stingray without Verizon's direct involvement. The Stingray located the defendant, but also exposed every other mobile device user in the area. In an amicus brief filed in support of Rigmaiden, the EFF and the ACLU argued that the use of the Stingray exceeded the scope of the court's order, and amounted to a warrantless search in violation of the Fourth Amendment. The EFF compares the practice to the searches of private homes conducted with impunity by British soldiers during the Colonial era.

Law enforcement has dramatically increased the number of requests it makes to cell phone providers for customer data, often without a warrant. Some requests come in the form of a subpoena, while others are reportedly far less formal. The state of the law regarding cell phone data, which must balance customer privacy, provider responsibilities, and law enforcement needs, remains unsettled. Some courts have ruled that accessing cellphone data without a warrant violates the Fourth Amendment, while other courts have said almost the opposite. The law has not advanced as fast as the technology.

In mid-2012, Congressman Edward J. Markey of Massachusetts requested information from nine cell phone service providers about requests they received from law enforcement during 2011. His office received responses from all nine, although T-Mobile reportedly did not include the number of requests it received in its response. The other eight providers reported a total of 1.3 million requests from local, state, and federal law enforcement agencies. Markey's office says that this is the first accounting ever performed of law enforcement requests for wireless data.

The total number of requests received in 2011 is a significant increase over previous years, according to some of the providers responding to Markey's office. Verizon said the number of requests had increased over previous years by fifteen percent, while T-Mobile estimated the increase as twelve to sixteen percent. Providers must maintain staff whose full-time job is responding to law enforcement requests. Markey's office compares the 1.3 million requests sent in 2011 to the comparatively small 3,000 wiretaps issued by courts nationwide in 2010. Wiretaps are less useful for electronic communications like text messaging and email, where law enforcement cannot "listen" to anything.

The Los Angeles County District Attorney's Office filed a motion to modify the probation of singer Chris Brown, who pleaded guilty to assault in 2009 in a highly-publicized case. Under the terms of his probation, Brown was required to perform community service. The district attorney's motion alleges that Brown either did not perform community service as he claimed in reports to the probation office, or that he did not adequately account for his time. The motion asks the court to find Brown in violation of his probation, but does not ask the court to revoke his probation. Revocation by the court could mean that Brown would have to serve a prison sentence.

Brown, a well-known R&B singer, pleaded guilty in June 2009 to the assault of his former girlfriend, the pop singer Rihanna. He had allegedly assaulted her on the night before the Grammy Awards after the two had an argument. The plea deal included a five-year term of probation, a one-year class on domestic violence prevention, and six months of a stricter form of community service known as "community labor." This allowed Brown to avoid jail and public testimony regarding the alleged assault. The court agreed to allow Brown to perform the community service in Virginia, Brown's home state and the location of a residence that he owns.

The use of drug-sniffing dogs in warrantless searches has sparked numerous legal disputes over whether they violate Fourth Amendment rights against unreasonable searches and seizures, and the question remains unsettled. While two Fourth Amendment challenges are pending before the U.S. Supreme Court, questions have arisen regarding the accuracy of police dogs in detecting the presence of illicit drugs. A federal lawsuit even alleges that a high-level state law enforcement official intentionally trained police canine units to respond to cues, rather than to the scent of drugs.

The Chicago Tribune reported on the accuracy of drug dog searches in January 2011. A review of Illinois Department of Transportation (IDOT) reports covering the years 2007 to 2009 found widely divergent success rates, meaning an alert by a dog leading to the discovery of illegal drugs. IDOT does not have a standard definition of an "alert," so police departments might apply the term differently. The Illinois State Police and the Chicago Police Department did not report any drug dog alerts, leaving the reporters with data from suburban law enforcement.

Illinois canine units had a success rate of forty-four percent statewide, meaning that police found no drugs for more than half of the dogs' alerts. The success rate was only twenty-seven percent for Hispanic drivers. Canine handlers, the reporters said, often lack training, and the state lacks dog training and certification standards. This leaves defendants with little ability to challenge an individual dog's accuracy. Police dog handlers and trainers, according to the Tribune, argued that the success rate of alerts is not a good measure of program success, because dogs' sensitive noses can pick up traces of drugs even after cars have been sold. If anything, this lends support to defense arguments that drug-sniffing dogs mostly provide a pretense for searches in the absence of probable cause.

Two cases before the U.S. Supreme Court last fall presented the question of whether drug-sniffing dogs violate defendants' Fourth Amendment rights against unreasonable search and seizure. The Court heard both cases at the end of October 2012. One case involved the use of a drug-sniffing dog outside a suspect's house and whether police violated the Fourth Amendment by taking the dog onto the front porch without a warrant. The other case involved the search of a vehicle and asks what evidence the state must produce to establish the dog's reliability. Aside from questions of privacy rights, recent research has called the reliability of drug dogs into question, with reports of false positives from dogs that were eager to please their handlers.

In Florida v. Jardines, No. 11-564, the Miami-Dade Police Department received a tip that Joelis Jardines was growing marijuana in his house. Officers, including a drug task force and a canine unit with a chocolate Labrador named Franky, went to Jardines' house on December 6, 2006. The canine officer led Franky up the sidewalk to the front porch of the house, followed by another detective. Franky allegedly alerted to the front door. The dog and his handler left, and the other detective knocked on the front door. Receiving no response, the detective allegedly smelled marijuana and saw other signs he interpreted as evidence of a grow house. While the task force waited nearby, the detective went to get a search warrant. Upon execution of the warrant, the officers found marijuana in the house.

Jardines moved successfully to suppress the evidence obtained from the search, but the district court reversed the suppression. The Florida Supreme Court overturned the district court's ruling on Fourth Amendment grounds, Jardines v. Florida, 73 So.3d 34 (Fla. 2011), finding that the canine unit intruded into the private portion of Jardines' property without probable cause.

If a criminal charge requires a jury to draw inferences from a defendant's statements or conduct, the inferences must be more than simple speculation or conjecture, according to the court in Harrison v. United States, ___ A.3d ___, Nos. 10-CF-147 and 10-CF-148, slip op. (D.C. App., Dec. 20, 2012). The court, while affirming a conviction for first-degree murder, vacated convictions for obstruction of justice and conspiracy to obstruct justice. It ruled that the evidence presented by the prosecution as to the obstruction charges, which mostly involved transcripts of phone conversations between the defendant and his father, required the jury to make too many inferences to find guilt beyond a reasonable doubt.

Cyrus Harrison was convicted of first-degree murder for a September 24, 2007 shooting in northeast Washington DC. Harrison's friend, Keith West, Jr., witnessed the killing and was called as a witness by the prosecution in Harrison's 2009 murder trial. Prosecutors charged Harrison with obstruction of justice and conspiracy charges in August 2009, after the murder trial, based on a series of phone conversations between Harrison and his father, and an in-person conversation between Harrison's father and West's father.

A federal appellate court vacated a conviction for bank fraud in United States v. Nkansah, No. 10-2441-cr, slip op. (2nd Cir., Nov. 8, 2012), finding insufficient evidence to support a conviction. The appellant successfully argued that the bank fraud statute requires proof of intent to harm the bank, as opposed to another victim, and that such evidence was lacking in the government's case against him. The court agreed and vacated two convictions: bank fraud and a related charge of aggravated identity theft. It upheld several other convictions, including filing false claims with the Internal Revenue Service (IRS), and it did not reach the appellant's argument regarding the reasonableness of his sentence.

According to the court's opinion, the appellant, Felix Nkansah, was part of a group that engaged in a scheme to file fraudulent tax returns in order to obtain tax refunds. From early 2005 until August 2008, the group reportedly stole personal identifying information from databases maintained by hospitals and childcare organizations, and filed tax returns using the stolen identities and fabricated income information. The IRS issued refunds to group members via check or electronic funds transfer. Prosecutors alleged that the group claimed over $2.2 million in refunds and obtained more than $500,000.