In a key sentencing decision handed down this year, the United States Supreme Court held that the Ex Post Facto Clause is violated when a defendant is sentenced under provisions of the Federal Sentencing Guidelines promulgated after he committed the crime and those new provisions result in an increased risk of greater punishment. In addition to clarifying the proper application of different versions of the Sentencing Guidelines, this is a particularly significant decision because the Supreme Court has now held that even post-Booker, an error in calculating merely advisory guidelines ranges still invalidates the sentence.
Marivn Peugh and his cousin Steven Hollewell were charged in 2008 with nine counts of bank fraud in connection with a check kiting scheme from 1999 to 2000 that allegedly caused the bank to suffer over $2 million in losses. Hollewell pleaded guilty to one count of bank fraud and was sentenced to one year and one day imprisonment. Peugh pleaded not guilty and went to trial where he testified that he had not intended to defraud the banks. Peugh was nonetheless convicted by the jury of five counts of bank fraud, although he was acquitted of the remaining counts.
At the time of Peugh’s offense (in 1999 and 2000), the 1998 Guidelines were in effect. Under the 1998 Guidelines, the base offense level applicable to his offense was six, and thirteen levels were added for a loss amount of over $2.5 million, creating a total offense level of nineteen. The government argued for an additional two level enhancement for obstruction of justice, which brought the total offense level to 21. Since Peugh was a first time offender in criminal history category I, he had an advisory sentencing range of 37-46 months under the 1998 Guidelines.
When Peugh was sentenced in 2010, the district court applied the 2009 Guidelines which were then in effect. Under the 2009 Guidelines, the base offense level applicable to Peugh’s conduct was now seven, and the enhancement for a loss value of over $2.5 million added an additional eighteen levels. After adding the two level enhancement for obstruction of justice, Peugh’s total offense level under the 2009 Guidelines was 27 – six levels higher than under the 1998 Guidelines. With a criminal history category of I, the advisory range for sentencing was 70-87 months – roughly double the range under the earlier version of the Guidelines. The district court sentenced Peugh to 70 months imprisonment, at the low end of the advisory Guidelines and he appealed the decision.
The U.S. Court of Appeals for the Seventh Circuit affirmed the sentence from the district court and quickly dismissed Peugh’s argument that the sentence violated the Ex Post Facto Clause. Relying on its own 2006 decision in United States v. Demaree, the Court held that the advisory nature of the Sentencing Guidelines post-Booker makes moot any argument that the application at sentencing of an increased Guidelines range at sentencing was not in effect at the time of the offense violates the Ex Post Facto Clause. This ruling was no surprise given that the Seventh Circuit has reaffirmed this proposition twice since it issued its 2006 ruling in Demaree.
The Supreme Court granted certiorari to resolve a Circuit split on this issue. On appeal, the focus of the Court’s analysis was on whether the Guidelines – which, post-Booker, are admittedly advisory – are sufficiently material to judges’ decisions about sentencing to warrant application of the Ex Post Facto Clause. In support of his argument, Peugh relied upon empirical evidence showing the judges are indeed influenced in their sentencing decision making by the Guidelines even if those Guidelines are not binding. On the other hand, the government argued that there was no precedential basis for the application of the Ex Post Facto Clause to a provision of law that is merely advisory.
In its holding the Court emphasized that the intent of the Ex Post Facto Clause was that it “ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action.” Even where these concerns are not implicated, the Court held that the Ex Post Facto Clause also “safeguards a fundamental fairness interest.” The Court noted that, while the Guidelines are advisory, judges are still required, under Gall and by statute to begin their sentencing determination by correctly calculating the applicable Sentencing Guidelines range. The Court noted that continued vitality of the Guidelines in encouraging uniformity in sentencing by creating procedural hurdles that make the imposition of a sentence outside the guidelines range less likely. In doing so, the majority rejected the argument in Justice Thomas’ dissent that the advisory nature of the Guidelines means that do not “meaningfully constrain” a judges’ discretion.
The ruling in Peugh provides clear guidance to district judges that the version of the Sentencing Guidelines to be applied is the one in place at the time that the defendant committed his or her conduct constituting an offense. Of course, the Court’s ruling does not resolve how that principle will apply in cases involving charges such as conspiracy that may occur over a substantial period of time during which there may be multiple versions of the Guidelines. That issue and others will undoubtedly be the subject of litigation to come.
District Court Holds Anti-Retaliation Provision of Dodd-Frank Act Does Not Apply in Case Virtually Lacking Any U.S. Connections
A recent decision in the United States District Court for the Southern District of New York has reinforced the United States Supreme Court’s jurisprudence on the extraterritorial application of federal statutes.
In Liu v. Siemens A.G., the plaintiff asserted that he was fired as a consequence of his disclosure of business practices by his employer in connection with sales in China and North Korea that he believed to be in violation of the Foreign Corrupt Practices Act, and sought damages from Siemens under the anti-retaliation provision of the Dodd-Frank Act. But the multinational character of the case – with almost no contacts with the United States – led the Court to grant Siemens’ motion to dismiss on the ground that the anti-retaliation provision of Dodd-Frank has no extraterritorial application.
In Morrison v. National Australia Bank, the United States Supreme Court significantly limited the extraterritorial reach of federal statutes that do not affirmatively provide for such application. That case involved alleged fraud in the shares of an Australian bank whose shares were not sold on any American exchange, and involved purchases of those shares outside of the United States. Though the bank had American Depositary Receipts (ADRs) the Supreme Court affirmed dismissal of the securities fraud claims in that case.
The Liu case reaffirmed this principle based on a tailor-made set of facts. As the Court explained: “This is a case brought by a Taiwanese resident against a German corporation for acts concerning its Chinese subsidiary relating to alleged corruption in China and North Korea.” The Court noted that the only contact with the United States was that Siemens had ADRs traded on an American exchange, just as was the case in Morrison.
In granting Siemens’ motion to dismiss, the court observed that the anti-retaliation provision of the Dodd-Frank Act is silent as to extraterritoriality – a fact that the court viewed as weighing heavily against a finding of extraterritoriality. The court also noted that other parts of the Dodd-Frank Act do provide for extraterritoriality – making the silence of the anti-retaliation provision even more meaningful. The court also observed that the only other court to consider this issue also ruled against extraterritorial application of this portion of the statute.
While the court engaged in a lengthy discussion of whether the disclosures at issue fell within the scope of the statute, it ultimately concluded that there was no need to resolve that issue given that the statute simply did not apply to this conduct lacking almost any connection to the United States. The court’s decision signals a willingness of the federal judiciary – at least in the context of civil litigation – to limit the extraterritorial reach of federal statutes where Congress has failed affirmatively to provide for such an application of the statute. On the other hand, the case leaves open the question of whether a court might rule otherwise in a case in which there were greater contacts with the United States.
Imagine a poker player who played an extraordinary amount of video poker and in doing so discovered a software bug that would allow him to achieve significant payouts through a series of unusual moves. These moves would actually manipulate in his favor the games he played and the amount he wagered on those games, but involved nothing more than deciding to play the game in a particular manner, and not anything involving tampering with the video poker machine or its programming. Now imagine being named in a federal indictment for computer fraud because of this seemingly innocent conduct. This is the story currently unfolding in a closely watched case in the U.S. District Court for the District of Nevada.
John Kane and Andre Nestor were each charged in an indictment in January 2011 with one count of conspiracy to commit wire fraud and one count of computer fraud in violation of the Computer Fraud and Abuse Act (CFAA), the same law that was used to prosecute Internet activist Aaron Swartz and Andrew Auernheimer. The CFAA was enacted in 1986 to protect computers that there was a compelling federal interest in protecting, such as computers owned by the federal government and certain financial institutions. The CFAA has been amended numerous times since it was enacted to cover a broader range of computer related activities, and there has been recent discussion on Capitol Hill of amending it further. The CFAA prohibits accessing a computer without proper authorization or it is used in a manner that exceeds the scope of authorized access. The law has faced steep criticism for being overly broad and allowing prosecutors wide discretion by allowing them to go so far as to charge individuals who have violated a website’s terms of service.
The indictment against Kane and Nestor alleges that they exploited an arcane bug in certain video poker machines to defraud casinos and win money to which they were not entitled and that their actions “exceeded their authorized access” on the machines in violation of the CFAA. As we see it, there is nothing illegal about pressing buttons on slot machines to change the amount of money you are betting or to switch games you are playing, but the prosecution alleged that doing this exceeded lawful access within the meaning of the CFAA. Fortunately for Kane and Nestor, the court agreed with the defendants that this was an example of prosecutorial overreaching and dismissed the CFAA count in the indictment on the ground that the statute did not encompass this innocent conduct.
Kane and Nestor would play video poker machines until they won, at which point a “double up” feature would become available for selection that would allow the player to insert more money and make larger bets. After more money is inserted, the game can be exited and the money value of the best changed to a value that will cause the targeted win to increase to whatever the player desired.
Most prosecutions for this type of fraud involve the use of magnets, or electrical shocks, or some external device, but what makes this case so unique is that this was a software flaw discovered by Kane. There was no external device or manipulation of the machine. The machines were played exactly the way they were intendedto be played and exactly the way the approved software allowed the machine to be played.The conspiracy to commit wire fraud charges are still pending against both Kane and Nestor. In July, the government and the defendants filed a stipulation to continue the trial dates, the ninth such request, which was granted by the court. The defendants are due back in court on November 25, 2013. The filing of the stipulations of continuance may mean that the defendants are cooperating in the investigation, or that they are otherwise attempting to resolve the case without a trial.
The dismissal of the CFAA charges in this case was, in our view, the correct result – a decision that will hopefully check the increasingly aggressive use of this statute by prosecutors to punish conduct that clearly does not fall with its proscriptions. This is a case that could have, and should have, been brought by the casino. There is no doubt that there is a proper place for criminal sanctions to punish and deter those who hack into computers and commit other types of wrongdoing by illegally gaining access to computers. But prosecutors must learn that the statute has its limits, and the courts must remain vigilant to protect those individuals whose conduct simply does not rise to the level of the crimes that the CFAA was designed to cover.
Today, in a closely watched case in Illinois, a federal court dismissed a lawsuit brought under the Illinois Loss Recovery Act (ILRA) against daily fantasy sports site FanDuel, Inc. and daily fantasy sports player Patrick Kaiser, finding that the plaintiff lacked subject matter jurisdiction to bring the suit. This is one of several lawsuits that have been brought in Illinois courts against daily fantasy sports companies and individual winners.
If a person has lost more than $50 gambling, the ILRA, like a number of state loss recovery acts, allows that person who lost money or something of value to sue the winner to recover the money that was lost. The ILRA also provides that if a suit is not brought by the loser within six months, “any person” may bring an action against the winner and is entitled to recover three times the amount of money lost gambling. The plaintiff in this case, Christopher Langone, is that “any person” who brought the suit against Patrick Kaiser and FanDuel.
The complaint alleged that Kaiser won several hundred thousand dollars playing on daily fantasy sports sites including FanDuel.
The court dismissed the complaint because it lacked subject matter jurisdiction due to insufficient allegations in the complaint. The court noted that there was not even a bare assertion that there was a sufficient amount of money lost for a federal court to have the jurisdiction to hear the case. The court also noted that the complaint failed to identify a specific loser who lost a certain amount and failed to bring a claim as required under the ILRA.
A very interesting point in the decision is that the court held that FanDuel was not a “winner” in the context of the Illinois Loss Recovery Act. The plaintiff had alleged that the defendants were winners because they take a commission from the entry fees paid by participants in the games, but the court rejected that argument. The court noted that, “FanDuel does not place any ‘wagers’ with particular participants by which it could lose money based on the happening of a future events (i.e., the performance of certain athletes), but merely provides a forum for the participants to engage each other in fantasy sports games.”
The plaintiff alleged in the complaint that daily fantasy sports games are not a game of skill, but instead “a form of ‘exotic’ sports wagering subject to change.” The court in this case did not address the issue because it did not have to after it found that there was a lack of subject matter jurisdiction.
Although the court did not address all of the issues relevant to the daily fantasy sports industry in the case, this decision is a huge win for the industry. Loss recovery act cases will be harder to bring against daily fantasy sports companies that are not assuming risk in their games. Daily fantasy sports continue to grow rapidly and today’s decision helps to partially remove one roadblock to its growth.
In a recent opinion, the US Court of Appeals for the 6th Circuit addressed whether it was constitutionally reasonable for police to use a doctor – in this case, a doctor “who is known to conduct unconsented intrusive procedures when suspects are presented by the police” – to forcibly recover drugs from a man’s rectum. Judge Julia Smith Gibbons’ dissent notwithstanding, the 6th Circuit found that it was not reasonable, opining that the doctor’s behavior “shocks the conscience at least as much as the stomach pumping that the Supreme Court long ago held to violate due process.”
The case, United States v. Felix Booker, came to the appeals court from the Eastern District of Tennessee. It began just before noon on August 12, 2010, when K-9 officer Daniel Steakley pulled Booker over for expired plates. The stop quickly escalated into a drug search. Steakley had arrested Booker earlier the previous year. Although Steakley’s drug-sniffing dog and a physical patdown yielded less than a gram of marijuana, Steakley called for backup and immediately arrested Booker for felony possession of marijuana. Tennessee law designates anything less than 14.175 grams a misdemeanor, worthy of only a citation.
Apparently the arrest was based on the officer’s suspicion that Booker was hiding contraband on his person. According to the officers, Booker fidgeted with the back of his pants during the traffic stop and at the police station following his arrest. They subjected Booker to an even more intrusive patdown in the interrogation room and to a strip search at the detention facility. No contraband was retrieved from either, but the officers weren’t done with Booker. They transported him – naked, shackled, and covered only in a blanket – to a local emergency room. There they presented him Dr. Michael LaPaglia, the attending physician.
LaPaglia told Booker that he needed to examine his rectum and extract any items found there. Booker refused. LaPaglia informed Booker that he had little choice in the matter, injected Booker with muscle relaxants and probed his rectum, manually. When that search failed to produce any contraband, LaPaglia ordered general anesthesia and had Booker intubated for nearly an hour. LaPaglia then paralyzed Booker and successfully extracted what previous probes had failed to retrieve, five ounces of crack cocaine.
This was the third time in three years that officers from the sheriff’s department had sought LaPaglia’s assistance in extracting evidence from a suspect. This time, however, Booker appealed his conviction and the 6th Circuit reversed — on the grounds that LaPaglia in conjunction with the Oak Ridge Sheriff’s department had violated Fourth Amendment protections against illegal search and seizure.
After addressing why the doctor’s conduct was attributable to the police, the Court examined the reasonableness of the search by weighing the following three factors: (1) the extent to which the procedure may threaten the safety or health of the individual, (2) the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity, and (3) the community’s interest in fairly and accurately determining guilt or innocence. In its analysis, the court highlighted the doctor’s failure to employ the less intrusive means used by U.S. Customs and Border Protection: an x-ray to confirm the presence of contraband, monitored bowel, and only engaging in an involuntary body cavity search after obtaining a court order.
The line between zealous police work and the violation of civil liberties can be fine. In Booker’s case, however, that line was egregiously and recklessly crossed with the help of a doctor, all too willing to set aside his oath: “First, do no harm.”
A recent indictment in a state court in La Plata County, Colorado, has ruffled feathers in the defense bar. The accused was one of our own, criminal defense attorney Brian Schowalter. The charge was based on Schowalter’s refusal to turn over evidence he ostensibly held for a client. The evidence, an original letter, was apparently relevant to a homicide investigation involving the attorney’s client (though it appears that this material was not protected by attorney-client privilege).
This is the kind of scenario that keeps defense lawyers awake at night: might you someday face criminal charges for aggressively protecting the interests of your client? So when Schowalter appeared in court to be formally advised of the felony charge against him, it was not too surprising that 10 criminal defense lawyers sat behind him in an apparent show of solidarity, and to signal to prosecutors that they will not buckle easily to pressure.
While few facts about the matter have been publicized, the central question for many is why would the prosecutor choose such a drastic approach?
The indictment charges Schowalter with unlawfully tampering with physical evidence in a homicide investigation. The prosecutor in the matter argues that he used every means available to obtain the evidence. (It would be nice to know exactly what procedural steps the prosecutor undertook before unleashing the proverbial nuclear bomb.) When the prosecutor subpoenaed the letter, Schowalter asserted his Fifth Amendment rights.
It is not clear from the facts currently available, but it is possible that Schowalter’s actions would support a disciplinary proceeding for potential ethics violations. Colorado Rules of Professional Conduct provide that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully . . . conceal a document or other material having potential evidentiary value.” So why didn’t the prosecutor report Schowalter’s alleged misconduct to the Colorado bar? That would be a more typical – and arguably more appropriate – response to potential issues of professional misconduct.
Did the prosecutor take such a heavy-handed approach because of Schowalter’s decision to assert his Fifth Amendment rights? It seems a bit unusual for a defense attorney to plead the Fifth in response to a demand for client documents. Schowalter’s response implies an admission that his previous action of withholding the letter could lead to more serious charges, an action that may have invited an already-irritated prosecutor to pursue criminal charges rather than a state bar action.
The lesson from this case may be: if you believe that client documents in your possession are legally protectable, fight vigorously by employing the procedural mechanisms available (e.g., a motion to quash). But don’t invite a bigger battle through obstinacy. Of course, if the defense bar continues to hold its line in the matter, there may be a lesson or two for the prosecutor, starting with a road map to a more appropriate legal action – based on ethics sanctions as opposed to criminal penalties.
Today the U.S. Court of Appeals for the Third Circuit affirmed a district court decision from New Jersey invalidating New Jersey’s sports betting law. The decision marks a setback in New Jersey’s efforts to implement sports betting in the state, but the case is very likely to be appealed to the Supreme Court where it could meet a different fate. Also, to the extent that online gaming, including poker, appears to be expanding on a state by state basis, the Third Circuit decision may be a setback to the approach for sports betting, and may be an invitation for federal legislators to revisit the federal statute held to bar New Jersey’s desire to permit sports betting. The full text of the opinion is available here.
The Professional and Amateur Sports Betting Act of 1992 (PASPA), prohibits any state from offering sports betting unless that state had a sports betting scheme in place between 1976 and 1990. Under the law Delaware, Oregon and Montana were granted limited sports betting schemes and Nevada is the only state authorized to offer single-game sports betting. Under the terms of the statute, New Jersey had an option at that time to seek to offer sports betting, but declined to do so.
In 2011, New Jersey revisited the issue and voters approved a referendum by a 2-1 margin to amend the state constitution to allow for sports betting in the state’s casinos and racetracks. The state legislature then passed a bill legalizing sports betting in the state and it was signed into law by New Jersey Governor Chris Christie (R). The New Jersey law would allow wagering on all major professional and collegiate sporting events, except collegiate sporting events involving New Jersey colleges, and all sporting events, professional or collegiate, taking place in the state.
In reaction to the new law, the National Collegiate Athletic Association, Major League Baseball, the National Football League, the National Basketball Association and the National Hockey League sued in federal district to prevent the state from offering sports betting. The U.S. Department of Justice then intervened to defend the constitutionality of PASPA. After the district court granted summary judgment in favor of the NCAA and the professional league plaintiffs, the state appealed to the Third Circuit Court of Appeals.
In a 2-1 decision issued today, the Third Circuit found that the leagues had standing to bring the case and that PASPA is a constitutional exercise of federal power that barred New Jersey from proceeding with sports betting in the state. The Third Circuit found that the leagues were able to meet the constitutional standard for standing to assert a challenge to New Jersey’s law, but stated that it was “hesitant to conclude that the Leagues may rely solely on the existence of the Sports Wagering Law to show injury.” The decision also found that PASPA was constitutional and that the anti-commandeering principle did not apply because PASPA serves to invalidate contrary state laws and not to directly regulate the states. In doing so, the court relied on the Supremacy Clause in its reasoning that the New Jersey sports wagering law is invalid because it is in direct contravention with PASPA.
The Third Circuit decision was by no means by consensus. In a dissent containing powerful language, Judge Thomas Vanaskie noted that there is clear precedent that the federal government cannot direct state legislatures to enact legislation or state official to implement federal policy. The leagues and the Department of Justice had argued that in those cases required the state was required to take affirmative steps to enact legislation and PASPA does not. The dissent noted that nothing in those cases, “limited the principles of federalism upon which those cases relied to situations in which Congress directed affirmative activity on the part of the states.” The nature of the anti-commandeering principle and if it requires the state to take affirmative steps will be a key part of any appeal from New Jersey.
New Jersey will now likely either petition for an en banc review in the Third Circuit or file a petition to have the Supreme Court review the case. New Jersey has 45 days to seek an en banc review in the Third Circuit. If New Jersey files a petition with the Supreme Court it will have 90 days from today to appeal the decision. The Supreme Court hears a very small percentage of the cases appealed to it, but due to the interesting and complex constitutional issues raised in this case it seems relatively likely that this case will be heard. The Supreme Court has never addressed the constitutionality of PASPA.
Today’s decision from the Third Circuit marks a setback in New Jersey’s efforts to legalize sports betting, but this case is far from over. The dissenting opinion on a key issue provides a very strong basis for review and shows that the court struggled in forming its opinion on the issue. In addition to the continuing fight in the courts, the Third Circuit decision may also spark new federal legislative efforts to permit some form of limited licensed sports betting beyond the few states now permitted to offer it. We will continue to follow this case and provide updates here.
Privacy and national security interests are notoriously tricky to balance. Lean too far one way, and you lose an important tool in preventing and detecting crime; lean too far the other way, and you are depriving Americans of their liberty through persistent government intrusion and observation. This balancing act has been an especially hot topic given recent revelations about the National Security Agency’s surveillance and data-gathering networks. While attention has been focused on the NSA and the mass surveillance disclosures that took place earlier this summer, a particularly startling revelation about the FBI’s actions has flown largely under the radar.
A recent New York Times article revealed that the FBI has been gathering information from suspects by remotely hacking into their electronic devices and covertly tapping into the information that can be found on and through the devices. The FBI accomplishes this in much the same way that criminal, civilian hackers do: by delivering spyware to the devices through web or email links. When the user clicks on the link, either on a computer or a smartphone, the government can use the spyware either to collect existing files or to activate the device’s recording devices for continuing surveillance. According to the article, one former U.S. official confirmed that the FBI can remotely activate the microphones in phones running the Android operating system to record conversations.
This sort of government intrusion goes well beyond the NSA’s acknowledged collection of telephone and email metadata. This spyware is programmed to collect full conversations, real-time photos and videos, and stored files of all types, from devices that people have near them 24 hours a day. This type of intrusive government intrusion into a device in which an individual has a reasonable expectation of privacy is the type that the Constitution’s Fourth Amendment is meant to address. And, in theory, it does. The FBI and other law enforcement agencies are required to obtain a warrant each time that they implement this technology to gather content such as computer files, and must meet a stricter standard for wiretaps when conducting surveillance using the webcam or microphone.
As technology advances, it becomes easier for the government to watch our every move. Whereas once the government could listen to conversations only on wiretapped telephones or bugged areas, it is now able to keep an open microphone on a device that people keep on them no matter where they are. We hope that law enforcement and the courts will seek and allow the use of this incredibly invasive and effective technique only rarely where no other surveillance is sufficient and not as a matter of course in standard investigations.
A split among the U.S. courts of appeals is taking shape over the threshold requirements for the government’s ability to obtain historical cell phone location data, in the wake of a July 30, 2013, ruling by the U.S. Court of Appeals for the Fifth Circuit.
That court held that a U.S. district court must order a cell phone service provider to produce a subscriber’s cell site data when the government presents specific and articulable facts showing reasonable grounds to believe that the records are relevant and material to an ongoing criminal investigation.
The case began in 2010, when federal authorities in the Southern District of Texas filed applications for cell phone data in connection with three criminal investigations. The applications, submitted under § 2703(d) of the Stored Communications Act, requested 60 days of subscriber information and cell site data for specific cell phone numbers.
Section 2703 states that the government may require third-party service providers to turn over their subscribers’ cell phone data as long as the requisite burden is met. Generally speaking, authorities may obtain substantive communications, i.e., “content” records, without notice to the subscriber, but only based on probable cause as required by the Fourth Amendment. “Non-content” records, on the other hand, may be obtained on a lesser showing.
Thus, service providers may be compelled to turn over details of a subscriber’s call history, including numbers called, session times, and the duration of calls. To obtain non-content data, the government must offer “specific and articulable facts showing that there are reasonable grounds to believe that the . . . information sought [ is] relevant and material to an ongoing criminal investigation.” The statute provides that an order may be issued by any court of competent jurisdiction and shall be issued only if the government makes the required showing.
The magistrate reviewing the applications granted the government’s requests for subscriber information but denied the requests for cell site data. Although the government had met its burden under the statute, the magistrate held that compelled production of location data would constitute a warrantless search in violation of the Fourth Amendment. The district judge affirmed.
On appeal, the Fifth Circuit considered two issues. First, the court considered whether the Act requires the issuance of an order for non-content records when the government meets the “specific and articulable facts” standard or, alternatively, whether district courts may impose a higher burden. Second, the court considered whether the compelled production of cell site data constitutes a “search” under the Fourth Amendment.
On the first issue, the court held that an order must issue when the government meets the “specific and articulable facts” standard: the test is both a necessary and sufficient condition for an order under § 2703. The court resolved the tension between the statute’s permissive and mandatory terms by explaining that any court of competent jurisdiction may order the production of historical location data; but, if the government meets its burden under the statute, the court must issue an order compelling production of non-content data. Under such circumstances, district courts may not deny the government’s request or impose a warrant requirement.
The Fifth Circuit answered the second question by holding that compelled production of cell site data is not a “search” under the Fourth Amendment. The court’s decision rested on its conclusion that location data are simply the service provider’s business records, not data from a tracking device. As the court explained, the service provider stores and collects cell site data voluntarily for its own business purposes, not on behalf of the government. Additionally, the records concern commercial transactions to which the service provider is a party. Unlike content data, the subscriber’s location information is intended solely for the provider, who needs it to complete the subscriber’s calls.
The court explained further that subscribers do not have a reasonable expectation of privacy in cell site data. Subscribers know full well that phone service depends on transmission of the caller’s location data. And even if that were not common knowledge, subscribers would still have no reasonable expectation of privacy in location data because the provider’s terms of service and privacy policies explain how the data are used, collected and stored. Armed with that knowledge, subscribers make informed choices about whether and how they use their cell phones.
The Fifth Circuit opinion is fascinating, especially because of the tension it creates with a Third Circuit case decided just weeks before the government filed its applications in Texas. Like the Fifth Circuit, the Third Circuit considered whether a court may deny an order for historical non-content records when the government makes the requisite showing under § 2703(d).
First, that court held that orders based on “specific and articulable facts” are not per se unconstitutional. But unlike the Fifth Circuit, the Third Circuit held that § 2703(d) establishes the conditions necessary, but not the conditions sufficient, for an order. In other words, courts can still require probable cause in limited circumstances. The court’s holding followed logically from its conclusion that, at least in some cases, cell phones are like tracking devices. And when historical cell site data is used to track a suspect’s physical movement in places where the suspect has a reasonable expectation of privacy – the home, for example – the Fourth Amendment may require a showing of probable cause. The Third Circuit held that, in such cases, district courts may require a warrant.
Disputes over government access to historical cell site data are far from over. If these cases are any indication, these rulings will hinge on whether courts deem cell phone location data to be more like third-party business records or more like data from a tracking device. Since a clear split among the circuit courts seems to be developing, it appears fairly likely that the U.S. Supreme Court will take up the issue soon.
A $3 billion fraud scheme, more farcical than dangerous and in any case doomed to fail, led to 20-year sentences in federal prison for all four conspirators. The U.S. Court of Appeals for the 2nd Circuit, however, vacated the sentences on procedural grounds, and U.S. District Judge Stefan R. Underhill of the District of Connecticut, sitting by designation, wrote a concurrence that drew back the procedural curtain to shed light on what he saw as a fundamentally flawed corner of the administration of justice. This was the U.S. Sentencing Guidelines’ loss table, which he said was “divorced from its own objectives and from common sense” in this case.
The case, United States v. Juncal, came to the court on appeal from the District Court for the Eastern District of New York. The appellants – James Campbell, John Juncal, and Rodney Sampson – and their codefendant Emerson Corsey had been convicted of conspiracy to commit mail and wire fraud. The four men, posing as officers of a (fictional) Wyoming-based multinational bank and its client in Buryatia, an obscure region of Siberia, attempted to extract a $3 billion loan from a hedge fund to finance an (imaginary) Siberian oil pipeline. In exchange for the loan, they offered to assign to the hedge fund $5 billion in U.S. Treasury notes, which they claimed would generate a $14 billion return in just five short years. When a broker asked for physical evidence of the T-notes, the defendants explained that they had hidden the notes in Austria for safe keeping. The defendants did, however, send the broker copies of T-notes from their AOL account.
The absurd nature of these facts notwithstanding, the defendants’ offense levels were calculated based on an intended loss amount of $3 billion, and each received the statutory maximum sentence for fraud: 20 years in prison. At sentencing and on appeal, counsel for the defendants highlighted the significant flaws in the loss calculation, arguing that the “30-point mega-enhancement vastly overstated both the seriousness of the offense, and the danger of appellants to their community.
At sentencing, their arguments fell on deaf ears. On appeal, they did not. The Second Circuit questioned the lower court’s failure to apply (or even address the merits of) a reduced sentence and remanded the case for resentencing. Because the case was “clouded by the possibility of error,” the appeals court “felt it appropriate to give the District Court an opportunity to clarify its thinking.” The case was remanded on procedural grounds, and the appeals court declined the appellants’ request to consider whether the sentences were substantively unreasonable.
Judge Underhill began his nine-page concurrence by first agreeing that the sentences should be vacated and remanded for procedural error. However, he also noted that “the real problem is that the sentences are shockingly high.” For that reason, he “would reach the question of substantive reasonableness and would reverse on the merits.” In his view, “the loss guideline is fundamentally flawed, and those flaws are magnified where, as here, the entire loss amount consists of intended loss. Even if it were perfect, the loss guideline would prove valueless in this case, because the conduct underlying these convictions is more farcical than dangerous.”
Underhill went on to explain that the current guidelines are the result of three increases in the recommended ranges for fraud crimes, each of which “was directed by Congress, without the benefit of empirical study of actual fraud sentences by the Sentencing Commission.” He also noted the common perception that the loss guidelines are broken, and highlighted their widely inconsistent implementation among the district judges. However, since this case could be decided on procedural errors, the circuit court was able to remand the case without expressing a view on the substantive issues that Underhill highlighted.
In so doing, however, the appeals court may have overlooked an opportunity to fashion a common- law reasonableness standard to protect the administration of justice in future cases.
There are many arguments to support the avoidance of knotty substantive issues when their examination will not affect the final outcome of the case. As Underhill himself pointed out, courts ordinarily examine the procedural issues first before applying an abuse-of-discretion standard to examine the substantive reasonableness of a sentence. However, that practice creates a slippery slope: district court judges are forced to proceed without meaningful guidelines, and abuses of discretion go unnoticed.