Monday, August 31, 2015

Untested Rape Kits: Who is to blame and what is the solution?

In the United States, sexual assaults occur every two minutes. After a sexual assault, if a victim goes to the hospital, medical personnel compile a rape kit. A rape kit is a type of forensic DNA evidence collected from victims after a sexual assault has taken place. The process is often invasive and can take hours to complete. Police departments and prosecutors use the evidence collected during this process to identify suspects, increase the likelihood of prosecution, and in some instances exonerate wrongly identified and prosecuted individuals. What then is the problem that law enforcement, prosecutors, and defense attorneys are running into concerning rape kits? Many are untested. 

During an investigation conducted by USA Today and a number of journalists from sister stations in summer of 2015, USA Today reported that there are at least 70,000 untested rape kits spreading across 1,000 police agencies. Although this has been one of the largest and most detailed inventories conducted on untested rape kits ever, there are still potentially hundreds of thousands of untested rape kits that have yet to be identified. The study did not reach the over 18,000 police departments nationwide during the investigation phase. To add to the number of untested rape kits, news reports state that there are still thirty-four states who have yet to count the number of untested rape kits in their possession. The problem is even greater in smaller, rural communities who are not equipped to handle rape kits appropriately. One of the hindrances to testing rape kits is that it costs approximately $1,000 per rape kit

Before the USA Today study, Congress attempted to address the issue when it unanimously enacted the SAFER Act in 2013. SAFER provides $45 million in resources to assist local police departments across the nation in testing rape kits by providing them with a greater percentage of the grant money to provide to each state under the Debbi Smith Act. In addition, the law establishes standards for tracking, storing, and using DNA evidence during sexual assault prosecution. 

Despite this new law, there are still potentially hundreds of thousands untested rape kits sitting in police agencies across the country waiting to be tested. Many critics are blaming the Department of Justice, stating that they have failed to provide the guidelines and funds to the states to address the issue. However, it is unclear who is to blame. Because of the confusion, some states have recently stepped up and taken actions into their own hands. For example, in New York City, the city had a backlog of approximately 17,000 untested rape kits. In response to this backlog, the city prioritized untested rape kits and developed a system to test every rape kit within their jurisdiction. As a result, the arrests for rape percentage increased significantly from 40% to 70%

If the SAFER Act is enforced and states are required to test all pending untested rape kits in their jurisdiction or if states begin testing themselves, it will have substantial effects on local practitioners. If untested rape kits begin to produce DNA profiles, then prosecutors must determine whether the case is prosecutable. If cities that have a backlog begin testing untested rape kits in an effort to decrease their backlog, prosecutors, the courts, and defense attorneys could see similar results to those in New York City: a significant increase in the number of rape arrests and investigations. It is estimated that approximately 50% of the untested rape kits will deliver a DNA profile, leaving a large number of potentially prosecutable cases in the hands of local prosecutors.


In the event cases associated with untested rape kits are deemed prosecutable, it will require prosecutors to reopen the case entirely by interviewing victims, obtain samples to confirm that the DNA is from the alleged perpetrator, and investigate the circumstances of the incident. Of the hundreds of thousands of untested rape kits, if even 50% of them create DNA profiles as the estimates suggest, prosecutors will see a significant increase in their caseload, especially in the cities with the deepest backlogs. In smaller, rural communities, practitioners could see their work load double. The courts as well as defense attorneys will also see a significant increase in sexual assault cases if prosecutors deem these cases prosecutable, increasing the number of cases that defense attorneys take on and the number of cases that the courts will have to hear. 

By Emma McArthur 
Senior Staffer

Sunday, August 23, 2015

One Stop Shopping - Fighting Child Trafficking through Eliminating the Online Middle-men

Super Bowl XLVIII will go down in history as being one of the most boring Super Bowls since its institution.  Your humble author will remember it by turning off the TV after half time, and going to do his Property reading, that suddenly became boundlessly fascinating in comparison.  For the parents of sixteen runaway children, who had been coerced into juvenile prostitution however, February 2, 2014 will be among the most memorable days of their lives. 

In a coordinated effort by over twenty law enforcement agencies throughout the country, sixteen juveniles were rescued from their assorted pimps and johns amidst the Super Bowl festivities.  This raid, however, begets questions as to how these girls, and the three to four hundred thousand trafficked children in the United States are trafficked. The brave new world of the Internet has left trolling for prostitutes on dingy street corners obsolete. Over seventy five percent of all trafficked children in America are believed to be advertised and trafficked over the Internet. This may conjure an image of a fat, sweaty man sitting in a darkened basement firing up his TOR client to head to a particularly sticky corner of the Deep-Web and paying bitcoins to an unknown trader. 
This image is incorrect. The vast majority of child prostitutes in the United States can be accessed through one perfectly legitimate looking website: Backpage.com. Investigators have found that “nearly every time a child is trafficked in the United States, they have been sold on Backpage.” 

Backpage maintains that it is no different than any other online It’s difficult to quantify what percentage of the ads on the Craigslist-like site are for adult services. With that having been said, a cursory look into Backpage’s adult section in my current residence in Brooklyn, New York has shown that, since I started writing this post three hours ago, over two hundred ads (Note – that link is, obviously, NSFW) have been posted in just one section of the adult division, including an ad for “recently arrived, tight young Asian girls. VERY DISCRETE.” (Note – No, I am NOT providing a link for this.) In contrast, there have been thirty postings for landlords looking to show their apartments in the past forty-eight hours. 

Backpage itself has few illusions about the manner of services it provides. Cook County Sheriff Thomas Dart has recently put pressure on VISA and Mastercard to not allow them to use their cards to pay for ads for potentially trafficked persons, citing, among other things, the prevalence of child trafficking on Backpage’s ads. Visa, MasterCard, and American Express, in a rare stroke of integrity for the credit card industry have since agreed to refuse to allow their cards to be used to pay for ads for sex trafficking. 
Rather than take this as a sign that human trafficking, and particularly child trafficking is something that isn’t, and never should have been accepted, Backpage doubled down on their sex trafficking ads, wrapping themselves in the cloak of the First Amendment. Recently, Backpage has removed any and all fees for placing ads on their “Adult Services” section

Note that it requires money to place an ad to sell a couch or an apartment, but not a trafficked child. This step becomes particularly odious when Backpage sidesteps any technical difficulties related to lack of credit card verification by allowing them to enter the promo code “FREESPEECH” as a one hundred percent off coupon for any person wishing to peddle any and all sex services on Backpage. 

Backpage has been sued by two girls who were trafficked on their site, emphasizing that the search terms “underage,” “fresh,” (a known euphemism for underage) and “schoolgirl” were permitted on their site.  As a result of these lawsuits, it has been found that Backpage has refused to put in any manner of analaytic tools that would allow them to curb child trafficking. Backpage claims that they employ a “triple tiered” prevention system to avoid trafficking children. Attorneys for the three girls have held that this “prevention system” doesn’t amount to much more than clicking a box to ensure that the poster is over the age of eighteen. In short, Backpage’s robust, triple-tiered prevention system is exactly as ironclad as the same methods used to keep bored teenagers from watching videos on pornhub.com. Which is to say . . . not very[1].  
Backpage has responded by suing Sheriff Dart for infringing on their free speech rights, and costing them over nine million dollars in revenue for their Adult Services ads. That’s right, Backpage is arguing that they should have the right to sell the bodies of children, because of the First Amendment. Just as John Dickinson and Thomas Jefferson intended.

Currently, Backpage enjoys a certain indifference to complicity charges thanks to a loophole in the Communications Decency Act.  This is a loophole that could have been closed by the Stop Advertising Victims of Exploitation, or SAVE ACT, introduced in Congress last year, where it died an ignominious death in committee. It has since been reintroduced in Congress, as an amendment to the Justice for Victims of Trafficking Act, a bill that provided additional penalties for those involved in the trafficking of both adult and juvenile victims of trafficking. It would also hold websites potentially civilly or criminally responsible for any human trafficking, particularly trafficking of children that they may have engaged in, or profited off of. At this point any sort of movement would be encouraged, as Congress has not passed any laws regarding child trafficking or even human trafficking as a whole in the last thirteen years. 

Now, this is not to say that the bill is perfect. Indeed, many sex workers are staunch proponents of Backpage, preferring peddling their services from the comfort of their homes and computers rather than going out to the corners. They’re not wrong. And thus, it would make sense to establish a middle ground. Let Backpage keep their erotic services section, if for no other reason than to keep sex workers, who suffer from an unconscionably high rate of assault in their jobs, safe and off the streets. Pass a law requiring Backpage and its ilk to require proof of age for their models. This doesn’t have to include addresses, social security numbers, and full birthdays. Just some manner of ID that would show the year that the worker was born in. 

This would be but a small step in fighting the scourge of child trafficking. The real victories come from allocating appropriate resources and shelter to prostituted children, establishing rapport between communities and law enforcement to crack down on the pimps and the traffickers who perpetuate this trade. I’ve written about this before and I realize this is probably the last problem on Earth that has a single silver bullet. But I’m pretty sure we can all come together and say that there should be no reason people should be able to traffic children, and cloak themselves within any shroud of legitimacy, whether they be a guy on the corner, a john at the Super Bowl, or a multinational website. 


Travis Nemmer
Senior Staffer

Monday, August 10, 2015

Broad-sweeping, Bulk Warrants in the Digital Age

Internet use among adults age 18 + has become the social norm. As of March 2014, 87% of the population (277,436,130) uses the internet. Many of these users access social media websites like Facebook. Facebook has quickly become the most widely used social media website in the United States. As of the 2014, 71% of American internet-users (196,979,652) say they utilize the social media website. Moreover, of the 71% of internet users in the United States, 70% report they use the website on a daily basis. In total, a whopping 137,885,756 Americans check or post on Facebook daily.

On July 23, 2013 the Supreme Court of New York ordered the execution of 381 search warrants aimed at Facebook users, the largest request in the website’s history, authorizing the District Attorney and investigators to seize information stored on Facebook’s servers. A gag order preventing Facebook from notifying any of its customers was also issued. These 381 warrants were identical in scope and were supported by a sealed ninety-three page affidavit from the District Attorney’s Office detailing a scheme by civil servants to defraud the Social Security System. The warrants required all information in twenty-four broad categories, basically covering every post or action the 381 users had taken on Facebook. In August of that same year, Facebook moved to quash the warrants on the grounds that they were a violation of the users’ Fourth Amendment rights. The court denied this motion stating that the website did not have proper standing due to its “Terms of User Agreement” delegating privacy decisions to the individual user. Facebook was compelled to comply with the warrants and gag order. It then appealed the decision. In June of 2014, the District Attorney indicted 62 of the charged individuals, leaving 319 people whose accounts were riffled through uncharged. The gag order, however, was lifted and the court proceedings were made public. On July 21 of this year, the New York Supreme Court Appellate Division upheld the lower court’s decision and denied Facebook’s motion to quash stating the social networking service had neither a constitutional nor statutory right to challenge the warrants’ legal sufficiency on behalf of its customers before the warrants were executed. 

Specifically, the New York Supreme Court Appellate Division explained that the Internet Service Provider (ISP) did not have statutory authority found in the Stored Communications Act (SCA) § 2703 to file pre-enforcement motions against warrants. The SCA allows for only subpoenas and court orders to be challenged prior to enforcement. This decision, while sound legal theory based on current statute, is cause for concern among privacy advocates for a couple of reasons. First, the broad, sweeping nature of the warrants enables irrelevant personal information to be seized. Second, the statutory ability of an ISP to contest subpoenas/court orders, but not search warrants.

The first point of concern is the broad nature of the warrants themselves. Probable cause for the warrants of each of the 381 users was provided by one, ninety-three page affidavit. While this is not immediate cause for concern, it is disconcerting when viewed in the light of the actual number of users charged as a result of the account seizures. While a New York judge found there was sufficient probable cause, the number of charged defendants from the search warrants was a mere 62. Assumedly, this means there was not sufficient evidence found in the other 319 user accounts and, consequently, these users had their personal correspondence and pictures seized in vein. Yet, based upon current precedent, this broad seizure of material is legal. As the Supreme Court of New York stated in the 2013 case, “the relevance or irrelevance of items seized within the scope of a search warrant may be unclear and require further investigatory steps.” This precedent would make sense in most contexts, but becomes dubious when the mass amount of data gathered is a user’s most personal information. Again, considering the small percentage of users charged via the warrants, a large amount of irrelevant personal information was undoubtedly seized. The court in 2015 even agreed that users “share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Moreover, according to Chris Sonderby, Facebook’s General Counsel, the warrants contained no date restrictions and allow the government to keep the seized data indefinitely.

This sets a concerning precedent for future mass “data dragnets” by the DA’s office considering the number of people utilizing social media, as well as the amount of personal information found on these websites. In the 2015 opinion, the court recognized that “Fourth Amendment protections are weaker in the digital context,” but then, within the same document, admitted that “Facebook users share more intimate personal info through their accounts than may be revealed through rummaging one’s home.” Thus, should stricter scrutiny be utilized for these broad electronic search warrants? Another facet that causes one to ask this question is that this situation is indicative of a growing trend by United States law enforcement. The U.S. leads the world in these types of Facebook seizures. Law enforcement in the United States utilizes Facebook seizures almost three times as much as the next country on the list. In fact, law enforcement in this country used 14,274 requests to seize 21,731 accounts from July 2014-December 2014 alone. This number is more than the four closest nations (France, UK, India, and Germany) on the list combined. 

A second point of concern arises from the statutory construction of the SCA itself. Currently, it leaves wide latitude for District Attorney Offices when they have a warrant because of the inability of an ISP to challenge them until the accounts are seized. The SCA gives three ways to obtain electronic information: (1) An administrative, grand jury or trial subpoena (see §2703(c) (2)); (2) A court order issued pursuant to § 2703(d); or (3) A search warrant (see § 2703(a)). Subpoenas are used in this context to obtain subscriber information like names, addresses, and credit card information. Court orders are used to gather transactional data (when the account is accessed, services used, and length of time online. Finally, warrants are utilized for stored electronic communications like Facebook accounts. 

The court explained that an ISP can only challenge court orders or subpoenas prior to execution, not warrants. This is per se reasonable because probable cause is required for a warrant, while “specific and articulable facts” that there are “reasonable grounds to believe” the information desired will be “relevant and material” are the only requirements for court orders and subpoenas. Yet, the warrants in this case are pertaining to personal information on a social media website; a website where the court admits “users share more intimate personal information through their Facebook accounts than may be revealed through rummaging about one’s home.” The probable cause standard for these warrants is a relatively strong privacy safeguard, but should the SCA allow a pre-enforcement challenge when this quantity of personal information is being collected? This contention seems reasonable when such warrants involve 381 individuals and, in the end, sufficient evidence was only found for 62 of them. Without a pre-enforcement ability, an ISP is forced to let the government vitiate the privacy of its users and can only step in once the damage is done. These ISPs must either comply and lose the trust of consumers, or not comply and face contempt charges. 

The SCA, however, is not without its positive aspects. One benevolent characteristic of the SCA that the court points out is that without it, ISPs would be governed by the outdated “Third Party Doctrine” established by Smith v. Maryland (holding limited information that people voluntarily share with third-party businesses can be accessed by law enforcement without a warrant, only subpoena and prior notice are needed)1. This 1979 decision paved the way for the NSA’s telephone metadata collection program that Snowden exposed. Ostensibly, the SCA creates privacy protections analogous to Fourth Amendment protections for digital communications stored on the internet. Thus, the passage of the SCA is certainly a step towards cementing online privacy in a world where more personal information is found online than in one’s home; yet, in its current construction, it still has room for improvement. 


Given the current social media status quo, this litigation should serve as a warning to those divulging personal information on social media. Even more important is the warning that District Attorney Offices may seize and access your accounts for an indefinite period of time. Even in the event the District Attorney Office does not find sufficient evidence to charge you with a crime, much like the 319 individuals who were not charged after their accounts were seized, there are few limitations on their access once the social media accounts are seized. 

By Joseph Collins
CLP Senior Staffer

1(see also Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Michigan L Rev 561 [2009]).

Monday, July 27, 2015

Suspected Killer Dylann Roof: Is Punishment for a “Hate Crime” Necessary?

On June 17th, 2015, a mass shooting took place at Emanuel African Methodist Episcopal Church in Charleston, South Carolina. Nine people, all of whom were attending an evening prayer meeting at the time, were shot and killed while a tenth survived. Among those killed was the senior pastor of the church and state senator Reverend Clementa Pinckney. The morning after, police officials arrested 21-year old Dylann Roof as the primary suspect in this shooting. Dylann Roof attended the prayer meeting the night before and opened fire after standing up and saying he was there to “shoot black people”. He stated African-Americans had “raped [white] women and are taking over the country. In his confession at the police station, Roof stated he wanted to start a “race war”.

Today, Roof faces nine murder charges and three attempted murder charges for the events of that night in June. If convicted, the death penalty is certainly on the table as South Carolina still offers it as punishment for murder. In addition, federal authorities are investigating the crime to determine whether the federal government will prosecute Roof for a hate crime

The reasoning behind prosecuting Dylann Roof for a hate crime reaches far beyond this killing. Since the events of the Charleston Church Shooting, it has been discovered that this young man was indeed a racist and a white supremacist. Pictures have surfaced on line of Roof wearing a jacket that had the apartheid South Africa flag embroidered on it, as well as others where he is seen burning the American flag and proudly waving the Confederate flag instead. Roof had a website that laid out why he decided to terrorize this church specifically and what fueled his anger toward the Black community. He had written a racist manifesto that explained his path toward hatred and even talked to his friends about doing “something crazy” after of six months of careful planning. None of the people around him had ever taken him seriously, until now.

Prosecutors have the discretion to charge whatever crimes fit the defendant at hand, given the evidence provided. This means the prosecutor is the one in most cases to wield the initial power. Prosecutorial discretion is more than just what it appears to be on its face; the types of crimes with which prosecutors charge defendants can potentially send a message to prosecutors in future cases. In this case, this means that if Dylann Roof is only charged with nine murders and three attempted murders, future prosecutors will see this as a typical murder case. However, if he is charged with a hate crime, a message would be sent that this specific type of murder stands out and should be treated differently. This could also potentially deter others from committing violent acts of racism and prejudice.

There are some who argue charging Dylann Roof federally for a hate crime is too excessive. Federal charges are sentenced with more severity than state charges, and there are differing detention centers for those convicted. Unlike in other recent race-related cases, most of the evidence is in place; Roof has even confessed to the crime and will almost certainly be convicted for his state charges. However, since South Carolina does not have a specific law targeting hate crimes, that particular charge is not an option at the state level. Therefore, any hate crime charge would have to be brought at a federal level.


Supporters of a federal charge for a hate crime say that Roof’s actions call for something beyond a conviction for a series of murders. This crime was racially motivated, and the evidence of this is staggering. The purpose for having hate crimes on the books is not just to punish criminals who may, for whatever reason, evade harsher punishment on the state level, but to actively criminalize behavior that is rooted in hatred for another’s race, gender, religion, sexual orientation, or any other type of status. The American criminal justice system does not punish a person’s ideologies or political leanings. But, left unchecked, such ideologies coupled with heinous acts viewed through the lens of historical racial tension in this country, could be very dangerous and detrimental to general safety. Finding Dylann Roof guilty of a hate crime is not a futile endeavor; doing so could help to inform future prosecutorial discretion in charging these types of crimes. It would also send a message that Americans view crime against others on the basis of racial prejudice to be a capital offense.
By Calvin Walker
CLP Senior Staffer

Wednesday, July 15, 2015

High Times, Fiscal Lows: Washington D.C.’s Marijuana Possession Decriminalization Amendment Act Does Not Apply Retroactively

                                                             Introduction

On February 26, 2015, District of Columbia passed the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014 (hereinafter “possession law”). The possession law made the possession of two ounces or less of marijuana legal for adults 21 years or older.  Nonetheless, any federal law enforcement officer in the District can arrest an individual for possession or use of any amount of marijuana because marijuana is still illegal under federal law.  The main point of this new law was to allow individuals to grow a few plants in their home (up to six), use marijuana within their own residence or on private property, and stop making criminals out of those who transfer (not sell) small amounts (one ounce or less) of marijuana to others.  However, the Marijuana Possession Decriminalization Amendment Act (MDA) made the “the possession or transfer without remuneration of marijuana weighing one ounce or less”* a civil violation with a fine of $25.  This amendment strictly prohibits the use of marijuana in public spaces, and it flows in tandem with the possession law which decriminalizes the possession of two ounces or less and the paraphernalia associated with such possession.  Yet recently, the legislature has added a new subsection to the MDA to make clear that the new possession law does not limit any part of the MDA.**  The Emergency Amendment of the MDA further clarifies that “any public place to which the public is invited” includes private clubs**, or simply that clubs cannot provide marijuana to their patrons.

The purpose of both the MDA and the new possession law is to reduce the number of marijuana possession arrests and convictions since the District had the highest percentage of such arrests per capita in the nation.  In ACLU’s June 2013 report, it further noted that 90.9 percent of people arrested in the District for marijuana possession were black, which elucidates the profound racial bias in the application of the District’s marijuana laws.  Therefore, ostensibly, the point is to eliminate or reduce the racial bias, criminalization, and derailment of minority lives and careers with petty possession offenses.  Even though the MDA is meant to prevent future petty offenses, it should also apply retroactively.  The District of Columbia Court of Appeals has recently spoken on the MDA in Washington v. United States, making it clear that the Act does not apply retroactively.  Thus, individuals who were arrested, charged, or convicted before July 17, 2014—when the MDA took effect—will still suffer some collateral consequences of their offenses despite the ability to seal their records under the Record Sealing Amendment.

Background

In Washington v. United States, the appellant was charged on July 5, 2013, with “one count of unlawful possession of marijuana and one count of unlawful possession of drug paraphernalia.”  He was tried and convicted on both counts and sentenced to two concurrent terms of time served.  The main issue here was that “[i]f the police had found [the] appellant’s marijuana one year and thirteen days later, he would have been subject to a $25 fine.”  Instead, he has two convictions on his record.

The court found that the MDA does not apply retroactively because the DC Council did not expressly provide for retroactive application in the act, and the legislative history did not explicitly mention pending prosecutions.  However, the court highlights the Record Sealing for Decriminalized and Legalized Offenses Amendment Act of 2014 (hereinafter “Records Sealing Amendment”), which the judiciary committee designed to “address[] the collateral consequences of marijuana possession arrests and convictions for individuals who were arrested, charged, or convicted before July 17, 2014.  The court concludes that this separate bill supports the inference that the legislature did not intend to apply the MDA retroactively.  Yet the opposite conclusion could be drawn as well.

Analysis

Scholars and practitioners could read both the MDA and the new possession law as intentionally preventing collateral consequences of petty convictions because those convictions would no longer impact the future of individuals.  Yet the D.C. Court of Appeals decided that the Records Sealing Amendment serves that purpose, and the MDA will not apply retroactively.  In the Records Sealing Amendment, the legislature realized that “the decision to use marijuana should not render someone a criminal for life, but under this bill an eligible offender must still seek legal counsel and file a motion to seal his or her record of arrest, charge, or conviction.  So in the end, the legislature is accomplishing little for those still suffering the collateral consequences from offenses now decriminalized because many past offenders cannot afford the assistance of legal counsel or do not even know that such a records sealing bill exists.

The fiscal impact of past marijuana possession offenses will still be felt within a great majority of affected low-income minority communities in the District.  And the true legislative intent of both acts will not be served without some form of retroactive application.  The key take-away here is that practitioners, including the prosecutor’s office, and other agencies, like the Court Services and Offender Supervision Agency (CSOSA), need to help past offenders seal their criminal marijuana possession records to limit the collateral consequences they still suffer.

Written by Miranda Dore
Staffer, Criminal Law Practitioner

*Marijuana Decriminalization Act § 101(a), 61 D.C. Reg. 3482 (2014)
**  Marijuana Possession Decriminalization Clarification Emergency Amendment Act of 2015, 2015 District of Columbia Laws Act 21-19, approved March 26, 2015; D.C. Code § 48-911.01

Monday, July 6, 2015

Asset Forfeiture and the Sixth Amendment Right to Counsel of Choice: Should Crime Pay?

On June 8, 2015, the United States Supreme Court agreed to hear the issue of whether a criminal defendant’s rights to due process and counsel of choice under the Fifth and Sixth Amendments are violated if the court orders a pretrial freeze of the defendant’s assets; assets which may be necessary for the defendant to hire private.

In Luis v. United States, the defendant, Sila Luis, was charged with Medicare fraud in the Southern District of Florida.  Luis was indicted in 2012 on fraud charges involving around $45 million in illegal Medicare payments.  The FBI said Luis, president of a healthcare provider, paid kickbacks and bribes to Medicare patient recruiters and submitted false claims for work done on behalf of its beneficiaries.  Once indicted, federal prosecutors froze Luis’s assets the same day, but Luis argued that the frozen assets were in no way connected to the alleged crimes and that prosecutors violated her Sixth Amendment rights since she needed the money to hire an attorney to mount a defense.  In a motion responding to the prosecutor’s temporary restraining order, Luis argued, “the Fifth and Sixth Amendments, individually and in combination, require that the court exempt from restraint and forfeiture those assets needed for (and ultimately expended on) [] legal defense to the charges pending before [the court].”  Further, she argued that by freezing her untainted assets before trial, the government not only “cripple[d] [her] ability to retain [private] counsel,”  but it also deprived her of money she would have invested “for the best and most industrious investigators, experts, paralegals, and law clerks, to at least attempt to match the litigation support available to the United States Attorney’s Office.

However, the lower court ruled against Luis after federal prosecutors argued that freezing the assets was necessary because she had already spent the tainted money on travel and luxury goods, and freezing the remaining funds were necessary to recover the full value of alleged fraud if convicted.  The court, in conclusion, stated that there is “no Sixth Amendment right to use untainted, substitute assets to hire counsel.”  The court also quoted an analogy from the Fourth Circuit’s decision in In re Forfeiture Hearing As to Caplin & Drysdale, Chartered, which illustrated a bank robbery involving $100,000, after which, the defendant is arrested in possession of the $100,000.  The defendant, without proof, argues his innocence and claims the money to be a gift from a friend.  The Fourth Circuit provided that no reasonable person would “contend that the $100,000 must be made available to pay for the defendant’s lawyer, and not be kept available for return to the bank in the event the defendant is found guilty.”  In reliance on the analogy, the Fourth Circuit held that prosecutors may take steps to freeze a defendant’s assets.

The Luis case differs from the case that was before the Fourth Circuit.  In Luis, the defendant’s frozen assets were not traceable to the fraud scheme.  The lower court again relied on the Fourth Circuit’s analogy, adding that the bank robber spent the $100,000 shorty after stealing it, but it just so happens he has an extra $100,000 obtained legitimately sitting in a bank account.  The court provided that Congress authorized restraint of those substitute assets in 18 U.S.C. § 1345 and therefore, the bank has the right to have those substitute, untainted assets kept available for return.
The Eleventh Circuit also rejected Luis’s arguments without any further explanation.  The Supreme Court granted certiorari to decide whether Luis’s Sixth Amendment right to hire counsel of choice should outweigh prosecutorial efforts to recover the full value of alleged fraud against the government.

The Fifth Amendment provides that “No person shall be … deprived of … property, without due process of law.”  Further, the Sixth Amendment provides that criminal defendants “enjoy the right … to have the assistance of Counsel for his defense.”  The Supreme Court has subsequently found in Powell v. Alabama that “a defendant should be afforded a fair opportunity to secure counsel of his own choice.”  This right to counsel of choice has been upheld even recently in the 2006 United States v. Gonzalez-Lopez decision, when the Supreme Court found that a defendant’s right to counsel is violated “whenever the defendant’s choice is wrongfully denied,” and such an error “pervades the entire trial.”

However, last term, the Supreme Court in Kaley v. United States reaffirmed the government’s ability to freeze property and/or money if there is a chance it could be tied to illegal activity.  The Court first approved of the government’s ability to freeze a defendant’s assets in the 1989 United States v. Monsanto decision, where the Court approved the constitutionality of such an order as long as it is “based on a finding of probable cause to believe that the property will ultimately be proved forfeitable.”  The Kaley Court held that standard to apply even when the defendant seeks to use the disputed assets to pay for counsel.  Since Monsanto, lower courts have provided hearings to defendants seeking to remove an asset restraint to pay for counsel.  In these hearings, defendants have been allowed to litigate the issue of whether the assets in question are connected to the crime; however, the Kaley Court “[did] not opine on” whether pretrial restraint of untainted assets could pose constitutional problems.  Lower courts since then have differed.  For example, the Fourth Circuit has held that defendants are still guaranteed the right to counsel of choice and are allowed to use untainted assets to hire counsel, but the Court of Appeals in Luis found that Monsanto, Kaley, and Caplin & Drysdale “foreclose[d]” constitutional challenges to pretrial restraint of untainted assets needed to hire counsel of choice.

The Luis decision will be worth following because the government has increasingly used asset forfeiture as a “potent weapon” to ensure “crime doesn’t pay,” as put by Warren Richey of The Christian Science Monitor.  Many fraud cases are a result of government claims on property or stolen proceeds that are directly traceable to criminal activity; however, prosecutors have sought to freeze and preserve assets and/or proceeds that may or may not be linked to criminal activity as a form of insurance that the government will be able to collect if the defendant is convicted.  The problem with this strategy is that pretrial freezing of the defendant’s money may leave the defendant short of funds—funds necessary to hire a lawyer.

It is difficult to predict how the Supreme Court will decide in this case.  The case raises issues of the defendant’s presumption of innocence, right to counsel of choice, fairness, and property rights, all of which are rooted in the Constitution.  Chief Justice Roberts touched on the issue last year in a dissenting opinion, in which he said, “[f]ew things could do more to undermine the criminal justice system’s integrity than to allow the government to initiate a prosecution and then, at its option, disarm its presumptively innocent opponent by depriving him of his counsel of choice … [such a move would be] fundamentally at odds with our constitutional tradition and basic notions of fair play.”  

Although the Luis decision will most likely affects federal practitioners, state-level practitioners should follow this case.  Some states have various statutes providing for the forfeiture of property and/or money that was either used in criminal activity, or traceable to criminal activity.  For example, Wisconsin’s statute does not explicitly provide for or prohibit pretrial seizures of assets and there have been no cases to address the issue.  Practitioners in similarly situated states should be wary of this decision because any limitations the Supreme Court places under the Fifth and Sixth Amendments would apply to the states.

By Mahira Khan
CLP Staffer

Monday, June 22, 2015

Planting the Seeds of a Security Threat: Seed Theft and Economic Espionage

     Attorney for the Southern District of Iowa, indicted seven Chinese citizens for the theft of trade secrets regarding corn seeds. Of those seven, only two— siblings, Mo Hailong and Mo Yun— are currently being prosecuted; even though all worked for Beijing Dabeinong Technology Group, a Chinese company specializing in agricultural science and technology. Both brother and sister were intimately involved in the upper echelon of DBN Group; Mo Hailong served as the director of international business, while his sister Mo Yun is the wife of Dr. Shao Genhuo, the CEO of DBN Group. The other five, who have purportedly fled the U.S., all worked for Kings Nower Seed, a subsidiary of DBN Group. The case was recently re-entered the media’s attention when it became known that the FBI, under the Foreign Intelligence Surveillance Act (FISA), has been using anti-terrorism surveillance tactics to investigate the siblings. 
     The corn seeds that the group intended to appropriate from Monsanto and DuPont, both huge players in the agribusiness field, were specially inbred seeds used to breed hybrids that farmers could buy. Inbred seeds are highly valuable because companies spend millions of dollars each year to produce new hybrids that are resistant to drought and insects, or able to grow with more success and virility. Use of such seeds would have allowed China to attempt to catch the U.S. production rates of corn. 
     DuPont became suspicious when Mo Hailong was spotted in 2011 digging in one of their cornfields; when approached by a security guard, Mo Hailong claimed that he was an employee at University of Iowa, jumped in his car, and drove away. A year later, three of the indicted individuals attempted to smuggle seeds out of the U.S. hidden in Orville Redenbacher popcorn boxes and napkins. Mo Yun became implicated in the plot through text messages from 2007 and 2008 discussing the theft of corn seeds for her husband’s company. Defense counsel’s main contention has involved the testing of the seeds; testing requires genetic analysis and the actual planting of the seeds, a rather lengthy process. The defense claims that the government took a long time to begin the process leaving no time for the defense to conduct similar tests. However, the most controversial issue is the government’s use of surveillance tactics normally reserved for “terrorist threats” to build their case against the Mo siblings.
     The members of the group were monitored with the same technology and surveillance tactics used to monitor threats to national security, including the placement of tracking devices on cars and the tapping of cellphones. With the approval of the Foreign Intelligence Surveillance Court (FISC)—a “secret” court comprised of eleven federal judges—the FBI moved forward and investigated the seven members over the course of two years before filing the indictment. The government’s two-year investigation yielded roughly 500,000 documents, as well as audio tapes and surveillance footage. After FISA passed in 1978, the FISC was tasked with creating guidelines for the manner in which agents working for a “foreign power” may be monitored. 
     The use of such measures raises a number of concerns. For example, whether such surveillance is an invasion of these individuals’ privacy, or should the FBI be using these sorts of resources for the theft of trade secrets? Although it is true that agricultural byproducts like these seeds would fall under the umbrella of trade secret, the seeds are valuable and important to the furthering of the U.S.’s competitiveness in the biotechnical global field. Because individuals were purportedly attempting to steal something from the United States, some would argue that this is a direct attack on national security. However, several factors separate this case from other surveillance and intellectual property cases. The economic value of the trade secret in question should not have any bearing on what charge to impose. Alternatively, FISA was designed to protect against spying on the U.S. by foreign governments; the government pointed to DBN’s alleged close ties with the Chinese government as sufficient reasoning for the extensive surveillance measures. Although the Chinese government only owns 1.08 % of DBN Group, there does seem to be evidence indicating that the company has ties to the Communist Party of China, something that could make it more difficult for defense counsel to suppress the surveillance evidence as unnecessary intrusion into their client’s lives. 
     An additional important factor in the debate over the appropriateness of such surveillance measures is the fact that the government could have presumably chosen to charge the Mo Hailong and Mo Yun with economic espionage rather than the theft of trade secrets. Under the Economic Espionage Act of 1996economic espionage is the “acquisition of trade secrets” for the benefit of “any foreign government, […] instrumentality, […] or agent.” Although the theft of trade secrets, or industrial espionage, criminalizes similar activity, it is different from economic espionage because the theft merely needs to benefit someone other than the owner. Since the siblings were charged with the latter, the question is raised as to whether there really is any connection between the theft and the Chinese government. It could be argued that the U.S. government chose to indict the pair on the broader charge rather than fail to establish a viable connection to the Chinese government. Regardless, as this case moves forward, it will be important to see how the court responds; the decision could mark an important precedent in a rather unsowed field. Allowing this form of surveillance for non-militant foreign government agents could arguably lead to the allowance in the future for similar surveillance in a number of situations.

By Jacqueline Morley
CLP Articles Editor 

Friday, May 1, 2015

You Snooze, You Lose: The Sleepwalking Defense

Everyday when the sun goes down, hundreds of millions people in the United States go to sleep. For most of those people, the act of sleeping occurs normally and they awaken the next morning to continue living productive lives. However, nearly seventy-five percent of adult Americans experience some form of a sleep disorder at least a few nights per week. Sleepwalking is one such disorder. The prevalence of sleepwalking in the general adult population is between one and fifteen percent.