marijuana dispensaryMore than half of the states in the U.S. now allow the use of medical marijuana to some extent. At the same time, federal law still treats marijuana as having “no currently accepted medical use in treatment in the United States.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). This has, obviously, created conflicts between federal and state law enforcement. Congress relieved this tension somewhat in 2014, when it passed legislation known as the Rohrbacher-Farr amendment as part of a spending bill. This amendment prohibits the U.S. Department of Justice (DOJ) from spending funds on law enforcement activities that interfere with lawful state medical marijuana systems, which range from the extensive in California to the restrictive in Texas. Texas marijuana lawyers are aware, however, that officials in the new White House administration have sought to use federal resources against state medical marijuana. So far, the Rohrbacher-Farr amendment remains in force.

California was the first state to allow the use of medical marijuana with a doctor’s prescription. Voters approved Proposition 215 in November 1996, also known as the “Compassionate Use Act.” Cal. Health and Safety Code § 11362.5. Twenty years later, in November 2016, voters in that state approved Proposition 64, which authorized the sale, purchase, and possession of limited amounts of marijuana for recreational use. Id. at § 11362.1. Most states have not gone this far, but states that allow medical marijuana in some form outnumber those that do not. Texas is among the states that allow medical marijuana use, although it is strictly limited to “low-THC cannabis” to treat “intractable epilepsy.” Tex. Health & Safety Code Ch. 487, Tex. Occ. Code Ch. 169.

The U.S. Supreme Court has rejected at least two challenges to the applicability of federal marijuana laws over state medical marijuana laws. The court rejected a common-law medical necessity defense in U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). Justice Thomas, writing for the court, noted that federal criminal law generally does not recognize common-law defenses unless Congress specifically includes them in a statute. He concluded that “a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act.” Id. at 491. The court held that the Commerce Clause of the U.S. Constitution allows a federal prohibition of marijuana production, distribution, and possession, regardless of state medical marijuana laws, in Gonzales v. Raich, 545 U.S. 1 (2005).

amusement parkProsecutors are obligated to turn over evidence that could potentially exonerate a defendant in a criminal case. This is known as the Brady rule, after the Supreme Court’s ruling in Brady v. Maryland, 373 U.S. 83 (1963). A federal appellate court recently ruled on a defendant’s claim that the prosecution violated his rights by failing to disclose information about criminal charges against two federal agents for conduct during the investigation of the defendant. The court was harshly critical of the two agents, who each received lengthy prison sentences, but it held that their criminal activity did not affect the reliability of the government’s case against the defendant. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

The Brady rule arose from a murder prosecution against two defendants. The named defendant, Brady, maintained that the other defendant committed the murder. The prosecution withheld a statement by the other defendant confessing to committing the murder alone. Without that evidence, Brady was convicted. The Supreme Court held that the prosecutors had violated Brady’s rights under the Due Process Clause of the Fourteenth Amendment. It is now common for defendants to request all “Brady evidence” from prosecutors during criminal cases.

The defendant in Ulbricht was convicted of multiple counts in connection with his operation of an online marketplace known as “Silk Road,” where people could anonymously exchange contraband, such as drugs and false identification documents, using the virtual currency known as Bitcoin. As part of the investigation into Silk Road, law enforcement agents would obtain the cooperation of low-level administrators and then pose as them using their online Silk Road accounts. A Secret Service agent and a Drug Enforcement Administration (DEA) agent were eventually charged with using this access to the Silk Road system to steal millions of dollars worth of Bitcoins.

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Dark CobwebThe criminal justice system must constantly adapt to changes brought by the increased use of the internet. Legal doctrines that once only applied to physical searches of people’s homes must now regulate “virtual” searches. Several years ago, federal prosecutors charged an individual with multiple offenses arising from his alleged administration of an online marketplace for illegal drugs and other contraband. It was reportedly the first prosecution involving the drug trade on the so-called “dark net.” A jury convicted the defendant on all seven counts in the government’s indictment, which included drug-related offenses, racketeering, and computer fraud. A judge sentenced him to life imprisonment. In May 2017, a federal appellate court denied his appeal, in which he argued in part that his Fourth Amendment rights had been violated. United States v. Ulbricht, No. 15-1815, slip op. (2d Cir., May 31, 2017).

Federal law allows law enforcement to monitor electronic communications under strict limitations. Two types of surveillance allowed by federal law are known as “pen registers” and “trap and trace devices.” A pen register “records or decodes dialing, routing, addressing, or signaling information transmitted by” a telephone or other device. 18 U.S.C. § 3127(3). A trap and trace device “captures the incoming electronic or other impulses,” allowing law enforcement “to identify the source of a wire or electronic communication.” Id. at § 3127(4). Neither device may capture or record “the contents of any communication.” Id. They provide law enforcement with a record that shows the source, destination, and duration of phone calls and other communications.

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BitTorrent networkCyber crime, as an area of legal practice, regularly presents new challenges on both sides of the criminal justice system. Despite new technologies and new laws, prosecutors often use laws that have been around since telephones were still relatively new to take on alleged schemes that rely heavily on the internet. Federal prosecutors recently brought fraud charges against a pair of defendants accused of an elaborate scheme involving false claims of online copyright infringement. United States v. PH, et al., No. 0:16-cr-00334, indictment (D. Minn., Dec. 14, 2016). The case illustrates many of the unusual challenges of cyber crime law.

Copyright protection gives an author of creative works, such as books and films, the exclusive right to use, distribute, display, or license the use of a copyrighted work. The use of a copyrighted work without the copyright owner’s permission may constitute copyright infringement and could potentially result in liability to the owner. Willful copyright infringement may carry criminal penalties in certain circumstances. 17 U.S.C. § 506, 18 U.S.C. § 2319. In any case of alleged non-criminal copyright infringement, the copyright owner is responsible for pursuing the alleged infringer.

The PH case does not involve alleged criminal copyright infringement. The defendants were charged with mail and wire fraud for allegedly sending out fraudulent claims of copyright infringement with settlement demands. Federal law prohibits any “scheme or artifice to defraud” that affects interstate commerce, such as through the use of the U.S. Postal Service—more commonly known as mail fraud. 18 U.S.C. § 1341. Fraudulent schemes that involve the use of interstate or foreign “wire, radio, or television communication” are categorized as wire fraud. Id. at § 1343.

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burglaryThe Fourth Amendment prohibits police from searching a person or their premises, or from seizing their property, without a warrant issued by a court upon a showing of probable cause. The War on Drugs, which began in the 1970s, considerably expanded law enforcement’s powers, and laws passed in the last 15 years as part of the “War on Terror” expanded them even further. Now, tactics that were originally authorized for counter-terrorist activities are primarily used in drug enforcement operations. A bill passed by Congress in 2001 authorized Delayed Notification Search Warrants (DNSWs), also known as “sneak and peek” warrants. Civil rights advocates charge that DNSWs allow law enforcement to engage in what are essentially legalized burglaries of private residences, raising serious Fourth Amendment concerns.

When executing a search warrant, officers must normally follow the “knock-and-announce” rule, meaning they must identify themselves as police and state their purpose before forcibly entering a residence. After executing a warrant, officers must provide the owner of any seized property with a copy of the warrant and a receipt for the property. Fed. R. Crim. P. 41(f)(1)(C). A court may issue a “no-knock” warrant when officers allege exigent circumstances that risk the destruction of evidence. This type of warrant sometimes results in a show of overwhelming force by police, but some courts have begun to restrict this practice on constitutional grounds.

In October 2001, Congress passed the USA PATRIOT Act. The law’s stated purpose was to “provid[e] appropriate tools required to intercept and obstruct terrorism”—giving it the title “PATRIOT” as an acronym. It established procedures for the issuance of DNSWs, which allow the delay of any required notice to the owner of the premises to be searched for “a reasonable period” after the execution of the warrant. Pub. L. 107-56 § 213 (Oct. 26, 2001), 115 Stat. 286; 18 U.S.C. § 3103a(b). A DSNW should “prohibit[] the seizure of any tangible property…except where the court finds reasonable necessity for the seizure.” Id.

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Federal Prisons sealOnce a person has been convicted of a criminal offense and sentenced to a term of incarceration, they have numerous possible legal avenues to avoid serving the entire length of the sentence. The most common methods, aside from appeals and habeas corpus petitions, are parole and other forms of early release. Clemency, which occurs when the president or governor either commutes the sentence or pardons the offense, is a far less common outcome, but it has many interesting legal ramifications. In the last few months of his second term in office, President Obama commuted the sentences of several hundred nonviolent drug offenders. While this resulted in many early releases, at least one person has remained in prison because of a conflict between federal and state jurisdiction.

Clemency can take two main forms. A “pardon” essentially absolves a person of guilt for a particular offense, or in connection with a particular act or incident. If no prosecution has occurred, a pardon prevents it from occurring at any point in the future. If a prosecution is already underway, or a person has already been convicted, a pardon either halts the prosecution or wipes out the conviction. A “commutation” merely shortens a person’s term of incarceration without wiping out the conviction.

The power to grant clemency in federal criminal cases is vested in the President of the United States. This power only extends to criminal cases under the jurisdiction of the federal court system. State governors have sole authority over clemency in state criminal cases. In cases that involve both federal and state charges, this could mean that clemency by one executive, such as the President, does not resolve the entire case. Intersections between state and federal law are particularly likely in drug-related criminal cases, since both federal and state law enforcement take an active interest in enforcing drug laws.

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crt-monitor-old-tower-personal-35565The Fourth Amendment to the U.S. Constitution requires law enforcement officials to obtain a warrant prior to searching an individual’s personal effects or seizing their property. The warrant must demonstrate probable cause to believe that the search or seizure will reveal evidence related to a criminal investigation. These protections apply both to a person’s physical effects, such as documents and other materials, and to their “electronically stored information” (ESI). The extent to which a warrant may allow law enforcement to search and seize ESI is still a matter of dispute. A federal judge issued a ruling in late 2016 that seems to grant broad powers to law enforcement to seize ESI. The court found that the Federal Rules of Criminal Procedure and the Stored Communications Act (SCA) required a provider of email services to turn over the entire contents of several email accounts. In re Microsoft Corp., No. 2:16-mj-08036, mem. order (D. Kan., Sep. 28, 2016).

At the time the Fourth Amendment was drafted and ratified in the 18th century, people’s personal effects mostly consisted of materials that they kept on their person or in their residence. This remained true for nearly two centuries, until computers became widespread, and people began using third-party internet service providers (ISPs) to communicate. Private communications, which enjoy the Fourth Amendment’s protection from warrantless searches and seizures, may now reside on servers maintained by ISPs, with the owner of those communications having the right to access them.

The third-party doctrine, which holds that information voluntarily disclosed to others is no longer protected by the Fourth Amendment, would seem to make communications stored by ISPs accessible to law enforcement—this seems to fit the letter of that particular doctrine, if not its spirit. The SCA attempts to reconcile the use of third-party ISPs with the Fourth Amendment, establishing requirements for warrants issued to ISPs. 18 U.S.C. § 2703. Procedural rules also address warrants for ESI. See Fed. R. Crim. P. 41(e)(2)(B).
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GPS Satellite NASAOf the thousands of criminal cases brought by federal, state, county, and local prosecutors around the country each year, very few result in an actual bench or jury trial. Many or most cases end with a plea bargain of some sort. Modern technology has allowed law enforcement to develop electronic monitoring systems as an alternative to incarceration. These systems are now widely used by criminal courts, juvenile courts, and probation and parole officers. Electronic monitoring devices allow officials to monitor individuals’ movements and locations. In some cases, the use of these systems raises new civil rights questions. Technological and administrative shortcomings can also contribute to situations in which the electronic monitoring itself prevents a person from fulfilling other obligations in a criminal case.

Electronic monitoring can take several forms. The Pretrial Services Division in Travis County, Texas describes two systems that it may use. “Radio Frequency Electronic Monitoring” involves the use of a device—commonly worn as an ankle bracelet—that transmits a signal if it is carried outside a designated area. This type of device is used for house arrest and other situations in which an individual must remain at home at designated times. “Global Positioning System Electronic Monitoring” allows officials to determine an individual’s location and track their movements in order to monitor compliance with court requirements.

Several provisions of Texas law allow for electronic monitoring. In criminal cases, courts can require the use of electronic monitoring to enforce a sentence of house arrest in lieu of a jail sentence. Tex. Code Crim. P. Art. 42.035. A court may require electronic monitoring as a condition of release from jail on a personal bond. Id. at Art. 17.43. Electronic monitoring may also be used as an alternative to incarceration in juvenile cases. A court can order electronic monitoring as part of the civil commitment system for certain convicted sex offenders. Tex. Health & Safety Code § 841.081 et seq.

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Food vending machineThe gradual decriminalization of marijuana in several states around the country has created unusual legal pitfalls. The U.S. Securities and Exchange Commission (SEC) has taken an interest in efforts to attract investors to the legal marijuana trade. This is practically unexplored legal territory, since such investments would have been unambiguously illegal just a few years ago. The SEC recently filed a civil complaint for securities fraud against a California company involved in legal marijuana sales, as well as its founder and two corporate officers. The founder and the corporation settled with the SEC, which is the civil equivalent of pleading no contest. SEC v. Notis Global, Inc., et al., No. 2:17-cv-01905, final judgment (C.D. Cal., Mar. 21, 2017).

“Securities fraud” encompasses a wide range of activities. The Securities Act of 1933, 15 U.S.C. § 77a et seq., regulates the issuance of new securities, including corporate stocks. The Securities Exchange Act of 1934, 15 U.S.C. § 78a et seq., deals with the trading of securities after they have been issued, such as in the various stock exchanges. Both statutes prohibit fraudulent statements and other deceptive acts in connection with the sale or purchase of securities. Violations may result in civil liability and, in some situations, criminal penalties. 15 U.S.C. §§ 77x, 78ff; see also 18 U.S.C. §§ 1348, 3301.

Lawmakers and law enforcement must often figure out how to reconcile new marijuana laws with old systems. One state might have removed criminal penalties for the production, distribution, sale, and possession of marijuana, but financial institutions subject to federal regulations might still shy away from doing business with them. In 2014, the SEC issued a memorandum about potential microcap investment scams, also known as penny stock fraud, in the marijuana business. The memo sought to warn investors about “pump-and-dump” scams, which involve making false or misleading statements about a company in order to artificially inflate its stock price.

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houston-texas-usa-building-1620695Legal restrictions on marijuana seem to be loosening all over the country, at least at the state level. Under both Texas and federal law, though, marijuana remains a highly restricted controlled substance. While public support for lessening restrictions is reportedly growing in Texas, the Texas Legislature does not seem likely to change the law any time soon. The state’s most populous county, however, has initiated a program that changes how that county’s prosecutors will handle minor marijuana possession cases. According to the Harris County District Attorney, the purpose of the Misdemeanor Marijuana Diversion Program (MMDP) is to reduce the burden on both the criminal justice system and the public of prosecuting thousands of people for nonviolent, minor marijuana offenses. The DA can assert prosecutorial discretion in deciding how to allocate resources, but this has not stopped critics from claiming that she is ignoring the law.

More than half of the states, as well as the District of Columbia and other territories, allow medical marijuana use to some extent. Texas is on this list, although it permits only very limited use. A handful of states have legalized the possession of marijuana in small amounts for recreational purposes. Texas is not on this list. Possession of two ounces or less of marijuana is a Class B misdemeanor, punishable by a fine of up to $2,000, a maximum jail sentence of 180 days, or some combination thereof. Tex. Health & Safety Code § 481.121(b)(1), Tex. Pen. Code § 12.22. Possession of more than two ounces, but not more than four ounces, is a Class A misdemeanor, which carries maximum penalties of a $4,000 fine and one year in jail. Tex. Health & Safety Code § 481.121(b)(2), Tex. Pen. Code § 12.21.

According to the MMDP policy statement issued by the Harris County DA, the county prosecuted over 100,000 people for misdemeanor marijuana offenses over the past ten years. This reportedly cost more than $100 million, but “produced no tangible public safety benefit for the people of Harris County.” Instead, the DA states that the investigation and prosecution of misdemeanor marijuana cases took up police and county resources, including officers’ time, crime lab resources, space in county jails, and court dockets, “that should be spent bringing serious criminals to justice.”
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