Crime in the Suites: An Analyis of Current Issues in White Collar Defense
IfrahoniGaming
Aug 29
2014

Collateral Damage: Criminal Convictions and the Lasting Consequences

iStock_000015494833Medium

Prosecutors and often even judges do not appreciate the collateral consequences of a criminal conviction, regardless of whether it results from a trial or a plea agreement.  While the direct consequences of conviction are obvious – such as jail time, probation requirements, and fines – the collateral consequences are more insidious.  Yet sometimes those consequences can have an even greater impact on a person’s life than the sentence meted out by the court.  These consequences may be difficult to identify, though they may be mandated by statutes and regulations scattered throughout state and federal law, and may arise from a misdemeanor conviction, or even a simple arrest.

One of the most serious collateral consequences of a criminal conviction is its effect on a person’s immigration status, and thanks to the United States Supreme Court, it is now one that has great visibility for most defense counsel. In Padilla v. Kentucky (130 S. Ct. 1473 (2010)), the U.S. Supreme Court held that the Sixth Amendment’s guarantee of effective assistance of counsel requires that a defendant must be provided with notice of deportation consequences of a guilty plea he or she is considering.  This issue arises most frequently in the context of drug cases because of the draconian treatment of such conduct under U.S. law for non-citizens.  Since the Supreme Court’s opinion in Padilla, many courts now specifically include in their allocution during guilty pleas a specific notice regarding the possibility that a guilty plea may result in immigration consequences for the, including deportation, reversal of naturalization and non-admission.

But there are many other collateral consequences that are routine, but are not always referenced in a plea agreement and are often not recognized by defendants.   Under federal law, a person convicted of a felony may not possess a firearm – indeed, possession of a firearm by a felon constitutes a felony violation itself.  And many state laws require that defendants who commit sex crimes register with local authorities.   A conviction for driving under the influence of alcohol or drugs may result in the administrative loss of driving privileges for a period of time.

There are even more serious collateral consequences that persist for long periods of time involving exclusion from employment prospects, eligibility for professional licensing and access to government benefits. For instance, employees in the nursing care industry are generally subject to background checks by their employer and are required to maintain certain licensing in their individual capacity as a condition to working in the industry. But even a relatively minor criminal conviction will raise a red flag on the background check and foil any chance of receiving a license. Similarly, a state agency may refuse to issue a business an operating license if some of its higher level employees have criminal convictions. Not only does this restriction limit a person’s employment prospects, but more broadly, they also harm the person’s chances of earning any livelihood because this person will also be prevented from owning any business that required such a state license.

For these reasons, it is absolutely essential that when considering whether to accept a plea agreement that both counsel and the client understand the consequences of the guilty plea in order to properly evaluate the benefits and the collateral damage of accepting a guilty plea versus proceeding to trial.  And it is essential that counsel advise their clients in an effective manner of the consequences of a conviction that may persist long after the clients leave the courthouse or the jail.

Aug 14
2014

DC Bans the Box

 banbox  MLive.com Graphic

 

Criminal defendants face a wide range of consequences for their alleged actions.  The high emotional and financial cost of defending a case may pale in comparison to the personal toll resulting from a conviction and the associated direct consequences including fines, penalties, remuneration, and incarceration. For most offenders, however, the longest-lasting consequence of all is the criminal record which they carry with them for life.  Some collateral consequences of a criminal conviction are imposed by law—for instance, convicted felons lose the right to vote and are ineligible for welfare benefits and federal student loans. (A database of collateral consequences by state can be found here.) Others are imposed by society.  Nowhere is this stigma more apparent or restrictive than in the ex-offender’s job search when, in trying to become productive members of society, they are routinely screened out of the workforce due to criminal history questions on initial job applications.

On July 14, the D.C. Council unanimously approved the Fair Criminal Record Screening Act of 2014, a bill which requires private employers to consider job applicants based on their merits and qualifications prior to considering their criminal convictions. The Act applies to all private employers in DC employing 10 or more persons, with the exception of employers providing programs, services, or direct care to minors or vulnerable adults. The Act prohibits employers from asking, in connection with a person’s employment, any questions relating to arrests or criminal accusations not currently pending which did not end in conviction.  Additionally, private DC employers may not ask job seekers any questions about criminal convictions during the initial application process. Rather, employers may only ask an applicant about his or her criminal convictions after the employer makes a conditional job offer.  Once the applicant discloses any convictions, the employer may only rescind the offer for a legitimate business reason, taking into consideration the seriousness of the offense and the bearing it may have on employment, among other factors. The D.C. Mayor must sign the bill prior to it becoming law.

This is the latest development in the “Ban the Box” movement which has gained traction in many states and municipalities–so called because of the “check here if you have ever been convicted of a crime” box commonly found on job applications. We wrote about Baltimore’s initiative in a previous post.  The ban the box movement is an effort to restrict initial job application questions about criminal history and thereby increase the odds that former offenders become productive members of society by re-entering the workforce.  A July 2014 National Employment Law Project report (not yet updated with the passage of DC’s bill) found that 12 states and 66 municipalities have instituted some legal measure restricting the timing of inquiries into criminal history during the job application process.  The laws vary as to specifics. In some jurisdictions, employers can make an inquiry into the applicant’s criminal history after an initial round of screening or interviews but prior to making a conditional offer. In some jurisdictions the law applies only to public sector employers, while in others it also applies to private sector employers of a certain size.  Some employers, such as retail giants Target and Wal-Mart, have independently instituted similar policies company-wide.

The Ban the Box movement has garnered criticism in some quarters for being a superficial fix which will ultimately deter employers from hiring at all.  Employers, the reasoning goes, will incur unnecessary expense in interviewing candidates and making conditional offers which they later rescind upon doing a criminal records check.  Then the employer could face litigation over whether the offer was rescinded based on a “legitimate business reason.” The candidate also allegedly loses out by counting on a job offer that doesn’t result in a job.

While there will be, no doubt, instances in which former offenders are disappointed by rescinded job offers, this concern is outweighed by the opportunity to receive fair consideration of their qualifications in the first place.  And a positive result on a criminal records check does not automatically mean that an employer has wasted time and resources in the hiring process; an individualized inquiry into the circumstances of the offense may not change the hiring decision at all, especially for offenses that are older or relatively minor. To the extent that banning the box marginally increases the length or cost of a hiring process, more and more governing bodies are determining that this is an acceptable cost in furtherance of the greater good.  And in D.C., complaints about criminal records-based hiring decisions are referred to the Office of Human Rights for administrative remedies rather than being resolved through litigation.

The Council’s approval of the Act is a great step forward for the estimated 60,000 D.C. residents with criminal records, as well as for non-residents employed in the District.  The Ban the Box movement gives former offenders a much-needed opportunity to show that they are more than their records, and to be considered for employment on their merits, in context.

Ifrah Law is a leading white-collar criminal defense firm that focuses on a variety of practice areas. View all.

Aug 12
2014

Bitcoin Equal to Money According to District Court Ruling

Young businessman opening his shirt and showing bitcoin currency

Is it possible to commit money laundering with virtual currency? At least one federal judge thinks so. Last month, U.S. District Judge Katherine Forrest refused to dismiss a money laundering charge premised on the use of a Bitcoin-based payment system. She is the first federal judge to hold that the federal money laundering statute is broad enough to encompass the use of Bitcoin in financial transactions.

In February 2014, a grand jury in the Southern District of New York returned an indictment charging Ross William Ulbricht on four counts for participation in a narcotics trafficking conspiracy, a continuing criminal enterprise, a computer-hacking conspiracy, and a money-laundering conspiracy. The charges stemmed from Ulbricht’s alleged creation and operation of an underground website known as Silk Road. Prosecutors alleged that Ulbricht designed, launched, and administered the online marketplace to facilitate the anonymous sale of illegal drugs, malicious computer software, and other illicit goods and services. Two features of the site allegedly protected buyers and sellers from government surveillance and tracking. First, Silk Road operated using Tor—software and a network that allows for anonymous, untraceable Internet browsing. The site also required all purchases to be made in Bitcoin, an anonymous, untraceable form of payment.

Ulbricht asked the court to dismiss all four counts, including the charge for participation in a money-laundering conspiracy. Ulbricht argued that the money-laundering charge should be dismissed on grounds that Bitcoin transactions are not “financial transactions,” as defined under the statute.

The federal money laundering statute prohibits “financial transactions” involving the proceeds of illegal activity when conducted by a person who intends to further the illegal activity or who knows the transaction is designed to conceal material information about the proceeds, such as their source or location. The “financial transaction” requirement may be satisfied by: (i) a transaction involving the movement of funds by wire or other means; (ii) a transaction involving a monetary instrument; or (iii) a transaction involving the transfer of certain types of property. To fall within the second definition, the transaction must involve a “monetary instrument”—i.e., U.S. or foreign coin or currency, checks, money orders, investment securities, or negotiable instruments.

Ulbricht argued for dismissal of the money-laundering charge based on the second definition. Specifically, he contended that Bitcoins do not meet the statutory definition for monetary instruments, so the alleged transactions cannot form the basis for a money-laundering conviction.

But according to Judge Forrest, Ulbricht missed the mark by focusing exclusively on the second definition of “financial transaction.” She prefaced her analysis by acknowledging that anonymous financial transactions are not per se criminal. But in Ulbricht’s case, Bitcoins were problematic because they were alleged to be the medium of exchange for commercial transactions related to illegal activity—narcotics trafficking and computer hacking. The prosecution had ample support for its claim that Ulbricht chose Bitcoin as Silk Road’s exclusive payment system in order to conceal the nature of those transactions.

The court also explained that the government had alleged the necessary elements for a money-laundering conspiracy regardless of whether Bitcoin was deemed to be a “monetary instrument.” The statute defines “financial transaction” more broadly to include any transaction involving the movement of funds by wire or otherwise. Bitcoins were deemed to fit this broad definition because they are used as funds to pay directly for things or as a medium of exchange and can be converted into currency which can pay for things. As Judge Forrest noted, “the only value of Bitcoin lies in its ability to pay for things . . . . The money laundering statute is broad enough to encompass the use of Bitcoins in financial transactions. Any other reading would – in light of Bitcoins’ sole raison d’etre – be nonsensical.”

There is an inescapable irony here. While proponents of Bitcoin favor recognition of the currency as a financial instrument, large operators like Ulbricht argue the opposite.

 

related practices at ifrah law:
Jul 23
2014

Atlantic City Needed to Go Online Years Ago

Photo Credit: Meinzahn

Three more casinos are set to close in Atlantic City. Unions, politicians and lobbyists are pointing fingers. One thing is for certain, newly introduced online gaming legislation is not to blame. If experts had been paying attention to the trends, they would have introduced regulated online gaming into New Jersey years ago…

Want to know more?  Read the full post on Ifrah Law’s new iGaming Blog

Ifrah Law is a leading white-collar criminal defense firm that focuses on igaming.

related practices at ifrah law:
iGaming
posted in:
Uncategorized
Jul 11
2014

NY Legalizing Medical Marijuana with the Compassionate Care Act

Untitled

Severely ill patients in New York State are celebrating Gov. Andrew Cuomo’s signature of a bill that legalized medical marijuana in New York for many severely ill patients[1]. As noted by Assembly Speaker Silver in his remarks, “With this agreement, we are assuring access to that much-needed relief while ensuring the tightest possible regulation and state supervision.” Indeed, the New York bill does contain many restrictions on the use of medical marijuana, which were necessary in order to gain the agreement of Governor Cuomo for the passage of the bill.

For instance, the bill’s coverage is limited to “certified patients” that submit an application and receive their “registry identification card.” The requirements are extensive and include: patients are residents of New York, are receiving care and treatment in New York, and have a “serious condition”, which is limited to “severe debilitating or life-threatening conditions” like cancer, ALS, Parkinson’s disease, HIV/AIDS, Lou Gehrig’s disease, Huntington’s disease, epilepsy, neuropathic diseases, and multiple sclerosis or as determined by the commissioner of public health. A certified patient is also required to “possess his or her registry identification card at all times when in immediate possession of marijuana.”

Additionally, the final bill included a compromise provision, again on Gov. Cuomo’s insistence, that prohibits the possession of medical marijuana “if it is smoked, consumed, vaporized, or grown in a public place.” Instead, patients will take medical marijuana through an oil-based vaporizer, edible, or otherwise ingest the drug like any other pill.

Further, medical marijuana can only be administered by “practitioners”- i.e. doctors who are registered with the NYS Health Department to issue a patient certification, and, “no person may be a designated caregiver for more than five certified patients at one time.”

There are also restrictions on the manufacturers. Medical marijuana can only be sold by a “registered organization” that manufactures and dispenses in “an indoor, enclosed, secure facility located in New York state.” In addition to future regulations to be issued by the commissioner, a registered organization must possess “good moral character”, “sufficient land, buildings, … and equipment to properly carry on the activity described in the application”, or, post a $2M bond. Interestingly, the per dose price is also set by the commissioner so that this enterprise may not become some profit-making engine.

As a necessary assurance, the bill provides that certified patients, practitioners, and registered organizations are not subject to civil, criminal, or disciplinary proceedings because of their practices in accordance with the bill.

Finally, there is a seven year sunset provision in the bill, which essentially means the bill would need to be reauthorized, meaning that if it is not, medical marijuana will no longer be legal. The bill also contains a provision that authorizes the governor to terminate the medical marijuana program at any time if it is deemed to pose a public safety issue.

Despite these restrictions, Governor Cuomo stated: “Medical marijuana has the capacity to do a lot of good for a lot of people.” We wholeheartedly concur and feel there is no more appropriate ending than with the words of Assembly Speaker Silver: “This is a great day for New Yorkers.”

[1] Note: The New York bill refers to “marihuana”, but we have used the commonly known “marijuana” throughout for ease of reading.

 

Ifrah Law is a leading white-collar criminal defense firm that focuses on a variety of practice areas. View all.

related practices at ifrah law:
View all
posted in:
State Criminal
Jul 08
2014

The Right to Remain Silent Does Not Extend to Computer/Phone Passwords

Recently the Massachusetts Supreme Judicial Court ruled that under certain circumstances, a court may compel a criminal defendant to provide the password to encrypted digital evidence without violating the defendant’s constitutional rights. This is an increasingly prevalent issue that has divided courts across the country and may be presented to the United States Supreme Court for review soon.

Leon Gelfgatt was indicted in 2010 for allegedly operating a mortgage fraud scheme that fraudulently collected more than $13 million. During the investigation, Massachusetts state troopers seized four computers, all of which were protected by encryption software that Gelfgatt refused to remove. Lawyers for the Commonwealth of Massachusetts filed a motion in Superior Court asking the court to compel Gelfgatt to enter the password for his encryption software so that law enforcement could review the contents. The Superior Court denied the motion, stating that the Commonwealth was asking for the defendant’s assistance in accessing potentially incriminating evidence.

In a 5-2 ruling, the Massachusetts Supreme Court reversed the lower court ruling and held that police could compel Gelfgatt to decrypt his files, because he told investigators that the computer belonged to him and he had the encryption key. The majority opinion reasoned that Gelfgatt’s disclosure to investigators that he had the password to access the encrypted materials was sufficient to satisfy the “foregone conclusion” exception to the Fifth Amendment protection against self-incrimination. The court did not specify if Gelfgatt would have been compelled to decrypt the computers if he did not tell law enforcement that he owned the computers and had the ability to decrypt them, which may limit the reach of this opinion.

In a strong dissenting opinion, two justices found compelling a criminal defendant to decrypt the files is the functional equivalent to forced self-incrimination.

After the decision, one of Gelfgatt’s lawyers indicated that they planned to appeal the decision to the U.S. Supreme Court, which has not yet considered the issue that has divided jurisdictions across the country.  In 2012, the U.S. Court of Appeals for the Eleventh Circuit held that a man under criminal investigation could not be compelled to decrypt his computer hard drives for the government without a showing by the government of specific knowledge about the contents of the hard drive, an opinion referred to by the dissenting opinion in this case.

In a time when law enforcement is increasingly relying on digital evidence in building cases against criminal defendants, issues regarding encryption and password protected materials will continue to arise.  We hope the Supreme Court will grant an appeal and clarify that law enforcement cannot compel criminal defendants to decrypt files without violating the Fifth Amendment right against self-incrimination.

Ifrah Law is a leading white-collar criminal defense firm that focuses on data privacy.

related practices at ifrah law:
Data Privacy
Jul 02
2014

U.S. Court of Appeals Decision: Cell Location Data is Protected Under Individual’s Expectation of Privacy

thumbnail
The U.S. Court of Appeals for the Eleventh Circuit recently considered whether cell site location data is protected by the Fourth Amendment. On June 11, 2014, the court issued its decision in favor of privacy rights: the court held that cell site location information is within the cell phone subscriber’s reasonable expectation of privacy. If officers want the data, they must obtain the subscriber’s consent or a judicial warrant supported by probable cause.

The court’s decision in United States v. Davis pertained to Quartavius Davis, a federal defendant who was convicted in Florida on multiple counts of robbery, conspiracy, and possession of a firearm. For his crimes, Davis was sentenced to roughly 162 years in prison.

On appeal, Davis argued that his convictions and sentence should be reversed. Among other things, Davis argued that the trial court erred in denying his motion to suppress cell site location data, which the prosecution used to place Davis near the various crime scenes. Investigators were able to obtain the data without a probable-cause warrant. They did so under a provision of the Stored Communications Act, which states that a court may order production of non-content cell phone records based on reasonable grounds to believe the records are material to an ongoing criminal investigation. Davis objected that the evidence in his case should be suppressed because it was the product of a warrantless search conducted in violation of his constitutional rights.

The Eleventh Circuit agreed with Davis, holding that cell site location information is within the subscriber’s reasonable expectation of privacy. Speaking for the three-judge panel, Judge Sentelle discussed two distinct views of the interests subject to Fourth Amendment protection: property interests and privacy interests. The court determined that the privacy theory applied to Davis’ case. Because Davis had a reasonable expectation of privacy in his cell site location information, the government’s warrantless collection of that data violated Davis’ Fourth Amendment rights.

The Davis opinion is arguably the most protective of individual rights as compared to similar appellate decisions. In September 2010, the Third Circuit held that officers can obtain cell site data under the Stored Communications Act as long as they meet the reasonable-grounds standard. But the court also added that, in exceptional cases, a judge may impose a warrant requirement for data that can be used to track an individual’s movements in a private location, such as the home.

In July 2013, the Fifth Circuit issued a less-protective decision. In that case, the court held that individuals do not have a reasonable expectation of privacy in non-content cell site data. Therefore, the court must order the production of such information when the government meets its burden of proof under the Stored Communications Act.

The Supreme Court has yet to decide the issue. But past Fourth Amendment cases suggest that no fewer than five sitting Justices favor the privacy theory that Judge Sentelle relied on. They are likely to agree that cell phone subscribers have a reasonable expectation of privacy in their cell location data.

Ifrah Law is a leading white-collar criminal defense firm that focuses on data privacy.

related practices at ifrah law:
Data Privacy
Jun 26
2014

Court: Police Need Warrant to Search Phone. But Guess What? They Get to Keep Your Phone While They Get One.

041fccc

Will cops still get access to cell phone data post arrest? You bet. Today’s Supreme Court decision just means they need to get permission from a judge before they start searching who you have been texting. And odds are very good, that permission will be granted.

In a unanimous decision authored by Chief Justice Roberts, the United States Supreme Court held that law enforcement officers may not conduct warrantlesssearches of cell phones that are seized incident to an arrest. But just because police cannot immediately search mobile phones, doesn’t mean they cannot immediately seize them in connection with an arrest. Indeed, the benefit of today’s decision by our country’s highest court may be limited to the two defendants who brought the case (and of course any similarly situated defendants).

The named defendant in Riley v California is David Riley. After Riley was stopped for a traffic violation, he was arrested and the police officer seized his cell phone incident to that arrest. When the officer accessed the data on the phone (without a search warrant), he noticed the repeated use of an identifier associated with the Bloods street gang. Later, a detective reviewed the cell phone records and noticed gang-related content, including a photo of Riley standing in front of a car that was used in a shooting weeks earlier. Riley was convicted of multiple crimes related to that shooting and received a sentence of 15 years to life.

The second case resolved today involved Brima Wurie, who had been arrested in connection with a drug sale. After Wurie’s arrest, police took him to the police station where officers confiscated his flip phone. A few minutes later, Wurie’s phone showed an incoming call from “my house.” The officers opened the phone, accessed the call log to determine the number of the incoming call, and then traced the number back to Wurie’s apartment, which they secured. After obtaining a search warrant, the officers searched the apartment and seized drugs, a gun, ammunition, and cash. At trial, Wurie was convicted on three drug-related counts and sentenced to more than twenty years in prison.

The key here to note is that in neither case did law enforcement obtain prior permission to search the cell phones belonging to Riley and Wurie. The narrow question presented to the Court therefore was whether it is permissible for law enforcement to search cell phone data incident to an arrest where no court has authorized such a search. In holding that such a search violates the Fourth Amendment of the US Constitution, the Court considered but rejected as not relevant prior cases where so-called “warrantless” searches passed constitutional muster. For example,

· In Chimel v. California, the Court recognized that the Fourth Amendment permits warrantless searches of the arrestee and areas within his immediate control if necessary to protect officer safety or to preserve evidence.

· In Arizona v. Gant, the Court held that officers may search a car incident to arrest if the arrestee is unsecured and within reaching distance of the passenger compartment or if the officer reasonably believes evidence of the crime of arrest may be found.

Because there were no such exigent circumstances present in Riley or Wurie’s arrest, the Court concluded that the need for cell phone data searches does not outweigh the corresponding intrusion on individual privacy, and thus a warrant was required. This of course is the right result. Digital cell phone data does not, by itself, of course, threaten officer safety. And a warrantless search of cell phone data is not necessary to preserve evidence. The Court recognized an individual’s privacy interest in digital cell phone data is considerable: cell phones have immense storage capacity, collect many types of records in one place, and often contain years’ worth of data.

In this regard, today’s decision is a victory for privacy rights. Law enforcement officers will not be permitted to conduct warrantless searches of cell phones for digital evidence. But if you are arrested, don’t assume law enforcement will let you keep your phone. Today’s decision may not allow for a warrantless search of your phone, but there is nothing prohibiting law enforcement from securing a phone post-arrest and seeking permission from a court to search it. And the chances that a court will grant such a request are close to 100%.

Ifrah Law is a leading white-collar criminal defense firm that focuses on data privacy.

Jun 23
2014

Supreme Court Denies Cert. in New Jersey Sports Betting Case

Today, the United States Supreme Court denied New Jersey’s petition for a writ of certiorari to hear an appeal from lower court decisions that invalidated its sports wagering law.  This ends a three year fight to bring sports betting to New Jersey’s casinos and racetracks, but NJ State Senator Raymond Lesniak, who has spearheaded efforts to bring sports betting to the state has vowed to continue on.

Last September, the U.S. Court of Appeals for the Third Circuit, in a 2-1 vote with a strong dissenting opinion, affirmed the decision of the district court striking down the state’s sports wagering law as conflicting with the federal Professional and Amateur Sports Protection Act of 1992 (“PASPA”).  In February of this year, the state of New Jersey filed a petition for a writ of certiorari asking the Supreme Court to hear the case, which today the Court denied.

The case has far reaching implications, well beyond the future of legalized state sponsored sports betting in the United States, but the Court decided the time was not right to hear the case.  In the Supreme Court, the states of West Virginia, Wisconsin, and Wyoming filed an amici curiae brief in support of New Jersey’s petition because of the belief that the Third Circuit decision “raises serious federalism concerns” by forcing states to implement federal policy. The states of Georgia, Kansas, Virginia, and West Virginia filed a similar amici brief in the Third Circuit.

This case raised numerous interesting constitutional issues regarding federalism and the federal government’s ability to dictate state policy, something that the Supreme Court has considered recently in other cases.  Last June, in a Voting Rights Act (“VRA”) case, the Supreme Court struck down a provision of the VRA that provided a formula for determining which states are subject to the provisions of the VRA, as unconstitutional.  The dissenting opinion in that case specifically recognized PASPA as a statute that treats states disparately and that its validity may now be in question under the equal sovereignty principles that the Court outlined in its opinion.

This is a temporary setback in the fight to bring legalized state sponsored sports betting to states other than Nevada, but the fight will continue.  Senator Ray Lesniak has said that he will introduce legislation quickly with the goal of offering sports betting in the state by the start of the NFL season.  Although unsuccessful thus far, Congress may also step in to author legislation to amend or eliminate PASPA.

Ifrah Law is a leading white-collar criminal defense firm that focuses on igaming, and a variety of practice areas. View all.

related practices at ifrah law:
iGaming, View all
posted in:
Uncategorized
May 27
2014

Mock Twitter Account Raid Results in Marijuana Arrest

Last month police raided the home of an Illinois man who created a parody Twitter account of his city’s mayor. No charges were brought against the man because the prosecutor determined that no crime had been committed, however the man’s roommate has been indicted for possession of marijuana that was found during the overzealous raid of their residence.

Jon Daniel created the Twitter account @peoriamayor that mocked Peoria, Illinois, Mayor Jim Ardis. The Twitter account originally included a photo of Ardis, his official email address, and a brief biography. Later, the account explicitly stated that it was a parody account.

The Peoria Police Department submitted search warrants to Twitter, Google and Comcast in order to determine who was behind the Twitter account. Using the information obtained from those warrants to investigate a potential misdemeanor false personation offense, the police obtained a warrant to search Daniel’s home. During the raid police seized several computers, phones, and a bag containing a “green leafy substance.”

The Peoria County State’s Attorney’s office later concluded that they could not bring charges against Daniel for false personation because the offense could not be committed over the Internet. The false personation statute at issue in this case is a new Illinois law that went into effect earlier this year. The law makes it a misdemeanor offense punishable by up to one year in prison when a person, “knowingly and falsely represents himself or herself to be . . . a public officer or a public employee or an official or employee of the federal government.” The State’s Attorney’s Office has defended the decision of the police to obtain a search warrant stating that the police acted in good faith believing that they had probable cause to believe that a crime had been committed.

The American Civil Liberties Union of Illinois has said that it anticipates bringing litigation against the city of Peoria over the police raid on Daniel’s house.

Daniel’s roommate, Jacob Elliot, was charged with felony marijuana possession as a result of marijuana that police found during the raid of their home. Elliot spent two days in jail before he was able to make bail, and was also suspended from his job. Despite the police being misguided in their belief that Daniel had committed a crime which served as the basis of the warrant that led to the discovery of the marijuana, the Peoria County State’s Attorney’s Office is moving forward with charges against Elliot. Elliot was indicted last week on two charges of marijuana possession, including one felony charge.

Public officials have long been the target of parody, and social media has made it even more prevalent. If anything, this is an issue that could have been resolved civilly, though given the high standard for a public official to bring forth a defamation claim that avenue would most likely have been unsuccessful. More importantly, valuable police resources were wasted at the behest of a public official who was the subject of parody and this could have a potentially chilling effect on free speech. Statutes like the one responsible in this case are unnecessary and lead to the encroachment of an individual’s First Amendment rights.

 

Ifrah Law is a leading white-collar criminal defense firm that focuses on a variety of practice areas. View all.

related practices at ifrah law:
View all
page 1 of 34123456789
Connect with Us Share

About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, healthcare, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen, David Deitch, and associates Rachel Hirsch, Jeff Hamlin, Steven Eichorn, Sarah Coffey, Nicole Kardell, Casselle Smith, and Griffin Finan. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

Visit the Ifrah Law Firm website