A lawsuit recently filed by Incredible Investments, LLC, owned by entrepreneur Consuelo Zapata, alleges that the language in a recently enacted Florida law that was intended to shut down Internet cafes and slot machines has actually outlawed all mobile devices that are capable of accessing the Internet. The complaint, which seeks to have the new law declared unconstitutional, alleges that in the process of hastily passing the bill, the legislators crafted language that could include any smartphone or computer in Florida. The complaint, a copy of which is available here, asks the court to throw out the law, which was purportedly passed “in a frenzy fueled by distorted judgment in the wake of a scandal that included the lieutenant governor’s resignation.”
The law in question was signed into law on April 10, 2012, by Florida Governor Rick Scott. Zapata, whose clientele is primarily migrant workers seeking to access the Internet, owns one of the approximately 1,000 internet cafés that was shut down as a result of the law.
The bill was introduced in the aftermath of a state investigation which found that a purported charity earned $290 million from an Internet gambling effort but donated only $5.8 million of those funds to charity. The investigation resulted in 57 arrests on racketeering and money laundering charges. Former Florida Lieutenant Governor Jennifer Carroll, who has ties to the charity but has not been accused of wrongdoing, resigned in the wake of the investigation.
The problem with the law that was noted in the lawsuit is that it amended the definition of a slot machine to include “any machine or device or system or network of devices” that can be used to play games of skill or chance, which can be activated by “money, coin, account number, code, or other object or information.” The lawsuit alleges that with such a broad definition of a slot machine, any smartphone or computer is effectively banned in Florida because it could be used to access the Internet to play an illegal game.
It is unclear what the result of the lawsuit will be. The court may agree with the plaintiff that this law has effectively banned mobile devices and should be struck down. However, courts often attempt to avoid constitutional issues when interpreting laws and could find that another reading of the statute in this case would be more appropriate.
Whichever way the court does decide on the law, this lawsuit shows the dangers of a swift reaction from a legislature after a high profile incident occurs. The unintended consequences of legislation can be quite serious, as is alleged to be the case here, and a thorough examination of the problems and the best way to address them could have avoided the confusion that has resulted from this law.
Florida judges acknowledge that “justice requires the appearance of justice.” And given some of the controversial verdicts coming out of the Sunshine State — Casey Anthony and George Zimmerman come to mind — it seems more important than ever for the Florida judiciary to protect its institutional integrity. That might explain why the Florida Supreme Court doubled the recommended suspension of a state prosecutor who failed to disclose numerous ex parte contacts with a sitting judge.
On June 20, that court upheld a finding that Howard Scheinberg engaged in conduct that was prejudicial to the administration of justice. The disciplinary action against Scheinberg pertained to the prosecution of Omar Loureiro. In 2007, Scheinberg was the lead prosecutor in a capital murder trial against Loureiro. Former Judge Ana Gardiner was the presiding judge. As a result of that trial, Loureiro was found guilty of first-degree murder and sentenced to death.
Months after the trial concluded, evidence surfaced that Scheinberg had been romantically involved with the judge. During the five months between the jury verdict and sentencing hearing, Scheinberg and Gardiner had exchanged more than 900 phone calls and more than 400 text messages. On average, Scheinberg had communicated with the judge almost 10 times a day during that time but had never disclosed the contacts to opposing counsel.
When the Broward State Attorney’s office learned of the misconduct, it promptly agreed to retry Loureiro: only a second trial could dispel public perceptions that Loureiro had been denied due process.
When the Florida State Bar learned of the misconduct, it promptly initiated disciplinary action. After the complaint was filed, a referee was appointed. She conducted a hearing and issued a report with her findings and recommendations. First, the referee found that Scheinberg’s ex parte contacts and his failure to disclose them prejudiced the judicial system in violation of Florida’s ethics rules. Based on her findings of aggravating and mitigating factors, she recommended a one-year suspension from the practice of law.
Scheinberg challenged the referee’s recommendation as to guilt and the one-year suspension, but received no relief. Instead, the Supreme Court agreed that Scheinberg was guilty of misconduct, even though his contacts with the judge were unrelated to Loureiro’s murder trial. The court explained that Scheinberg’s extensive contacts with Judge Gardiner created “an appearance of impropriety.”
When an attorney becomes romantically involved with the judge presiding over his case, “the judge’s authority necessarily suffers,” the court concluded. First, the relationship itself undercuts the judge’s role as a detached neutral party. Moreover, when a judge presides over cases involving her romantic partner, she loses her single most important source of authority — the perception that she is absolutely impartial.
The court then addressed the recommended sanction. Although it found no error with the referee’s findings on aggravating and mitigating factors, the court held that a one-year suspension was not sufficient. Scheinberg’s conduct created an appearance of impropriety based on substantial communications that were never disclosed to the defense. And it all occurred in the context of a capital murder trial!
The resulting harm was obvious: Scheinberg’s conduct led to an investigation and a retrial, both of which consumed public and private resources. In the court’s view, the seriousness of Scheinberg’s violation and resulting prejudice to the administration of justice required a suspension twice as long. On that basis, the court suspended Scheinberg for two years and ordered him to cover the Florida Bar’s costs.
More than two years after “Black Friday” – the day on which federal prosecutors shut down the U.S. operations of Full Tilt Poker and other major online poker providers and seized billions of dollars in assets – it appears that the final chapter in that enforcement action may soon be written.
The Garden City Group, the entity responsible for claims administration for repayment of Full Tilt Poker players, announced on August 1 that it would soon begin that remission process. Remission of funds to Full Tilt Poker’s U.S. players was made possible because of PokerStars’ payments pursuant to its settlement of civil forfeiture claims with the government. And, due at least in part to advocacy by the Poker Players Alliance (PPA), the calculation formula to be used for the process will be based on players’ final balances as of April 15, 2011, and not on the amount that they originally deposited into their Full Tilt Poker accounts.
Following the Black Friday asset seizures, PokerStars reached a settlement with the United States under which it forfeited $547 million to the U.S. government and agreed to repay approximately $184 million to former customers of Full Tilt Poker outside the United States. One of the valuable aspects of this settlement, from the perspective of former Full Tilt Poker players in the United States, was that it created a fund of money for repayment of players that would not otherwise have existed due to Full Tilt Poker’s financial status at the time of the seizure.
The settlement provided that the United States would oversee a remission process pursuant to which it would return funds to Full Tilt Poker players, but the law governing those processes vests the government with enormous discretion in, among other things, the manner in which the government calculates the amount to be distributed to each recipient. In the case of Full Tilt Poker’s U.S. players, the government was considering an approach that would have based the payment to each player on the amount he or she had deposited into a Full Tilt Poker account, regardless of the wins or losses in that account thereafter.
An alternative approach was to base the payment on the balance remaining in the account on April 15, 2011 – the last day on which the player could have accessed his or her account. The PPA and other advocates of this approach point out that this was a truer measure of the “loss” that each player suffered; to the extent that a player’s balance was lower on that date than his or her initial deposit, it was not due to any wrongdoing but rather a result of poker play. A player who received his or her initial deposit that was greater than the balance on that date would receive an unjustified windfall by recouping money lost fairly in playing online poker. Thus, to use deposit amounts as the basis for remission would effectively redistribute funds among players in a way that was unrelated to the purpose of the seizure and remission. This would have been inconsistent with applicable regulations’ definition of the “victim” to receive remission in terms of the loss suffered “as a direct result of the commission of the offense underlying a forfeiture.” (See 28 C.F.R. § 9.2(v)).
Advocates also expressed concerns that a “deposit”-based refund process would be unduly complicated, and would create inequities between foreign Full Tilt Poker players and U.S. PokerStars players, who received refunds based upon account balances.
It remains to be seen whether Full Tilt Poker’s U.S. players will receive the full amount of their account balances or a proportionally smaller amount – a decision that will be based on whether the amount available for remission is equal to or greater than the aggregate amount of claims filed for such refunds. But the decision to base remission on account balances and the indication that the long-delayed process will start soon are both positive signs that Full Tilt Poker’s U.S. players may soon be made whole from their Black Friday losses.
A recent D.C. Circuit Court of Appeals decision narrows the ability of the government to revisit uncharged crimes against a person whose plea has been vacated due to a change in the law.
In 2007, Russell Caso had pleaded guilty to conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. §§ 371, 1343 and 1346, based on certain conduct during his employment as U.S. Rep. Curt Weldon’s chief of staff. Caso was sentenced to three years’ probation, including a 170-day term of home confinement. In entering its plea agreement with Caso, the government had forgone the right to charge Caso also with a violation of the false statements statute for failing to include certain payments on his annual disclosure statement required by virtue of his status as a federal employee.
Shortly after Caso was sentenced, the U.S. Supreme Court handed down its decision in Skilling v. United States, 130 S. Ct. 2896 (2010) – a decision that substantially limited the permissible reach of Section 1346, the honest-services fraud statute – with the result that Caso was indisputably innocent of the crime for which he was charged and convicted. The government did not dispute this point but nevertheless opposed Caso’s motion to vacate his conviction.
The government argued that Caso had procedurally defaulted his Skilling challenge because he had not directly appealed his conviction on the ground that the conduct to which he pleaded did not constitute an offense, and therefore was barred from raising this issue on a habeas petition. The government also argued that Caso had failed to satisfy the narrow conditions for excusing such a default that the Supreme Court set out in Bousley v. United States, 523 U.S. 614 (1998): (1) “cause” for the default and “actual prejudice” resulting therefrom; or (2) that the defendant is “actually innocent.”
In denying Caso’s petition (which argued only the second of these exceptions), the District Court agreed with the government, and focused on the Bousley Court’s rule that, “[i]n cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner’s showing of actual innocence must also extend to those charges.” (emphasis added) Based on that rule, the District Court held that Caso had to demonstrate his “actual innocence” not only of the crime for which he was charged and convicted (honest-services wire fraud) but also of the separate uncharged offense of making a false statement, a crime that the government argued was at least equally serious as the honest-services fraud charge. Because Caso could not show his actual innocence of the false statement charge in light of the admissions he made as part of his plea agreement, the District Court denied his motion to vacate his conviction and sentence.
The D.C. Circuit reversed this decision based its reading of what constitutes “more serious charges” under Bousley. In doing so, the appeals court rejected the government’s argument that seriousness is to be determined based on the statutory maximum sentence for each crime, and found it far more logical to base the question of seriousness on the way in which each crime is treated in the United States Sentencing Guidelines. Quoting the Supreme Court’s Gall decision, the court noted that Guidelines calculations are still “the starting point and initial benchmark” for every sentencing decision and that “district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process.”
The court also noted that the United States Attorneys’ Manual, in directing prosecutors to charge “the most serious offense that is consistent with the nature of the defendant’s conduct,” explains that “[t]he ‘most serious’ offense is generally that which yields the highest range under the sentencing guidelines.”
The court also noted that statutory maxima provide the parties with little useful information in the context of plea negotiations, in part because courts rarely sentence defendants to the statutory maxima. Because the Guidelines treat a violation of the false statements statute less seriously than honest-services fraud, the Court of Appeals held that the forgone false statement charge was not “more serious,” and that Caso need not show his innocence of that charge to support his claimed right to vacating of his conviction for honest services fraud.
The fact that that the D.C. Circuit relied upon the Guidelines as the justification for its ruling is particularly interesting given that recent attacks on the reasonableness of some of the Guidelines (particular the Section 2B1.1 loss tables) have sapped the Guidelines of some of their authority. It is possible that this ruling could change the way in which prosecutors structure their pleas, but circumstances such as this one, in which a defendant is found innocent of convicted charges because of a change in the law, are rare enough that this is not likely. To the extent that courts face similar cases, they will have to address issues left unresolved by the D.C. Circuit, such as whether there must be contemporaneous evidence that prosecutors considered the forgone charge at the time, and whether a crime of “equal seriousness” (and not “more serious”) falls within the Bousley rule.
White-collar crime can involve any number of types of fraud against the government or private parties. One that isn’t usually thought about but can result in serious jail time involves conspiracies to obtain government contracts fraudulently by setting up bogus small and minority-owned businesses in order to qualify for government preferences.
In the past few months in the Eastern District of Virginia, several businesspeople have been sentenced to serve time in prison after pleading guilty to their roles in a scheme that improperly won them more than $31 million in government contracts that were intended for small, minority-owned businesses but were diverted fraudulently to other businesses that didn’t qualify.
In June, businessman Joseph Richards was sentenced to 27 months in federal prison after he pleaded guilty to his role in the scheme. He was the first major participant to be sentenced.
Richards and his co-conspirators were gaming the system and abusing the federal program that provides so-called 8(a) set-asides for minority businesses. As outlined in a statement of facts to which Richards stipulated, he and the co-conspirators set up “Company B,” a shell company owned by a woman named Dawn Hamilton, who is of Portuguese descent and thus eligible for the set-aside. However, Hamilton was only a figurehead owner, and “Company A,” run by Richards and other non-minority individuals, actually did the work on the government contracts. Earlier this month, Hamilton was sentenced to four years in federal prison.
For example, the memorandum states: “From 2009 until at least February 2012, when [Hamilton] began to work more frequently for Company B, Richards knew that [Hamilton] nevertheless reported to [co-conspirator Keith Hedman], who controlled Company B notwithstanding [Hamilton’s] “on-paper” Company B ownership. Richards also knew that [Hedman] kept a stamp of [Hamilton’s] signature in [Hedman’s] desk drawer and that [Hedman] repeatedly used the stamp to forge [Hamilton’s] name and signature on various documents, including checks and other documents submitted to the U.S. government.” Hedman, the ringleader of the scheme, was sentenced to six years in prison.
In order to make their scheme work, Richards and his co-conspirators repeatedly created fraudulent documents, including fraudulent leases and false responses to government inquiries about their 8(a) status.
These guilty pleas and sentences are indications that federal prosecutors are capable of going after government contract fraud in a concerted manner. The investigation that landed these guilty pleas, among others, was conducted by a large inter-agency team, including the offices of inspector general of the National Aeronautics and Space Administration, the Small Business Administration, the General Services Administration, the Department of Health and Human Services, and the Defense Criminal Investigative Service, with assistance from the Defense Contract Audit Agency.
The fact that the companies involved actually performed the work satisfactorily for various government agencies is, of course, no defense. It is a basic type of fraud to make false representations to obtain benefits – in this case government contracts – to which one is not entitled by law.
Of course, it’s pretty clear that for every one of these scams that are investigated by authorities and end in guilty pleas, there must be five or ten that are never found out. If the Small Business Administration and other agencies got wind of more of these conspiracies, they could do more to ensure that truly deserving companies received these set-aside contracts.
A recent decision by U.S. District Judge John Gleeson in the Eastern District of New York may be the harbinger of new limits on the government’s ability to use a prosecutorial tool of which it has become very fond lately – the deferred prosecution agreement. Judge Gleeson’s assertion that a district court has a right to approve or disapprove the use of a DPA in a criminal case has the potential to change entirely the way in which the government uses these agreements.
The government frequently uses DPAs in criminal cases against large companies as a means of leveraging the threat of criminal conviction to get the company to correct practices that the government believes to be illegal.
A DPA is a formal written agreement that customarily provides that criminal proceedings against the company will be held in abeyance for a period of years during which the company agrees to take steps, subject to monitoring, to correct its past misdeeds. The DPA is commonly filed along with a criminal information that commences a criminal case, and the parties then request that the court stay any proceedings in the case for the period defined in the DPA. If the company complies with the terms of the DPA, the government will dismiss the case at the conclusion of that period.
Because the government implements a DPA through the commencement of a criminal proceeding, however, it must contend with the application of the speedy trial statute during the period of deferral. The parties usually request jointly that the time period be excluded from the calculation of the 70-day period within which the trial must otherwise commence pursuant to statute. 18 U.S.C. § 3161(c)(1).
In United States v. HSBC Bank USA, N.A., 12-CR-763 (E.D.N.Y.), the government filed an information on December 11, 2012, charging HSBC Bank USA, N.A. with violations of the Bank Secrecy Act, 31 U.S.C. § 5311 et seq. (including, among other things, willfully failing to maintain an effective anti-money laundering policy) and with willfully facilitating financial transactions on behalf of sanctioned entities in violation of the International Emergency Economic Powers Act, 50 U.S.C. §§ 1702 & 1705 and the Trading with the Enemy Act, 50 U.S.C. App. §§ 3, 5, 16. On that same day, the government also filed a DPA, a Statement of Facts, and a Corporate Compliance Monitor agreement. The government filed these documents as exhibits to a letter requesting that the court hold the case in abeyance for five years in accordance with the terms of the DPA and that the court exclude that time from the speedy trial clock.
In responding to this request, Judge Gleeson surprised the parties by asserting that he had the authority not only to rule on the request to exclude time from the speedy trial clock, but also to accept or reject the DPA itself. In a written opinion issued on July 1, 2013, Judge Gleeson acknowledged that the court’s authority did not stem from Fed. R. Crim. P. 11(c)(1)(A) (dealing with plea agreements to predetermined sentences) or from Section 6B1.2 of the United States Sentencing Guidelines (which addresses policy statements on the acceptance of such pleas). Rather, Judge Gleeson concluded that the court’s general supervisory power over criminal cases – to ensure that the integrity and fairness of those proceedings – vested the court with authority to approve or reject the DPA.
In so concluding, Judge Gleeson noted that the government retains “absolute discretion not to prosecute,” and noted that a non-prosecution agreement “is not the business of the courts.” Judge Gleeson further noted that the government “has near-absolute power under Fed. R. Crim. P. 48(a) to extinguish a case that it has brought.” But once the government and the defendant chose to build into their DPA the filing and maintenance of a criminal prosecution – albeit one expected to be held in abeyance – the government gave up its largely unfettered discretion. “There is nothing wrong with that,” Judge Gleeson observed, “but a pending federal criminal case is not window dressing.”
“Nor is the Court,” Judge Gleeson noted, using Brendan Sullivan’s famous observation from the Iran-Contra hearings, “a potted plant.” If the parties chose to seek the court’s imprimatur on the DPA by involving the court in the process, they also subjected the DPA to the review and approval of the court pursuant to its supervisory authority over its proceedings.
Judge Gleeson’s self-described “novel” application of the court’s supervisory powers in this context is part of a pattern of increased judicial scrutiny of certain tools used in obtaining the cooperation of companies that are the focus of criminal investigations. Judge Gleeson noted the recent history of cases in which efforts to gain corporate cooperation had run afoul of companies’ attorney-client privilege and work product protections or its employees’ Fifth or Sixth Amendment rights, and noted that there are other hypothetical situations in which a company’s obligation to cooperate could be used in an improper manner.
Ultimately, Judge Gleeson approved the DPA in this case but also noted that the court’s approval was subject to continued monitoring of its execution and implementation.
If other judges follow Judge Gleeson’s lead, this may signal a change in the way in which prosecutors use DPAs. Historically, a DPA permitted the government to retain virtually unlimited discretion in its dealings with the party that entered into that agreement. To the extent that courts will now be more alert to potential abuses of cooperation arrangements, DPAs may be fairer to companies but may also become less attractive to prosecutors.
In asserting authority to approve or reject a DPA, Judge Gleeson readily acknowledged the broad discretion of the Executive Branch in exercising prosecutorial discretion. But if DPAs continue to incorporate the filing of criminal informations that are then held in abeyance, the courts may indeed be more than just drop-boxes for those filings – or more than just potted plants.
In a unanimous decision, the Supreme Court held last month in United States v. Davila that a guilty plea does not need to be automatically vacated, regardless of whether there has been prejudice to the defendant, when a magistrate judge improperly advises a defendant to plead guilty.
In 2009, Anthony Davila was charged with conspiracy to defraud the United States by filing false income tax returns. While the charges were pending, Davila requested new court-appointed counsel, complaining that his current public defender was telling him to take a guilty plea without advising him about alternative strategies. The Magistrate Judge held a private, closed hearing at which Davila and his attorney, but no representative of the prosecution, appeared. At the hearing, the Magistrate Judge told Davila that the court would not appoint a different lawyer and that, given the strength of the prosecution’s case, it would be wise for him to take a guilty plea. The magistrate offered this advice in violation of Rule 11(c)(1) of the Federal Rules of Criminal Procedure, which states that “[t]he court must not participate in [plea] discussions.”
Three months later, Davila entered a guilty plea before a U.S. District Judge. Before the sentencing hearing, however, Davila backtracked and moved to vacate his plea and dismiss the indictment. He did not mention the magistrate judge’s advice in his motion to vacate, instead stating that he agreed to plead as a “strategic move” that ultimately backfired. Finding that Davila’s plea had been knowing and voluntary, the District Judge denied the motion.
On his appeal to the U.S. Court of Appeals for the Eleventh Circuit, for the first time Davila raised the issue of the magistrate’s improper participation in plea discussions. The Court of Appeals found that the court’s error in weighing in on the plea affected Davila’s substantial rights. This was a key finding, as errors that do not affect substantial rights are considered “harmless” under Rule 11(h) and cannot form the basis for vacating a plea. The Court of Appeals concluded that the magistrate judge’s violation of Rule 11(c)(1) required Davila’s guilty plea to be automatically vacated, without any inquiry into whether the error was prejudicial.
On appeal, however, the U.S. Supreme Court ruled otherwise. In a ruling released on June 13, 2013, the high court found that under Rule 11(h), the court is not required to automatically vacate a guilty plea if the record does not show that the defendant was prejudiced by the violation of Rule 11(c)(1). The Supreme Court concluded that a violation of Rule 11(c)(1) would not undermine the fairness of the entire criminal proceeding such that it would trigger automatic reversal. Rather, in reviewing Rule 11 errors the court must consider the full circumstances of the individual case.
Here, the Supreme Court noted that Davila’s guilty plea was entered three months after the magistrate judge advised him to plead guilty and that the District Judge thoroughly examined and provided Davila the opportunity to raise any questions before accepting his plea. Therefore, in light of the full record, it is possible that a court would not determine it necessary to vacate the plea. The Supreme Court remanded the case to the Eleventh Circuit to review the surrounding circumstances and determine whether it was probable that, but for the Magistrate Judge’s advice, Davila would have decided against entering a guilty plea and would have instead elected to go to trial.
The Supreme Court is generally reluctant to recognize new “structural errors” in trials that require an automatic reversal without an inquiry into the surrounding circumstances. This is understandable, as structural errors are generally fundamental constitutional errors that involve issues such as denial of choice of counsel, denial of self-representation, and denial of a public trial.
While the Supreme Court made the right call in refusing to find that this error required automatic reversal, on remand the Eleventh Circuit must recognize the massive influence that a judge’s words could have on a defendant who is deciding whether to go to trial or take a plea, and weigh that heavily in an analysis of the surrounding circumstances leading to the plea.
When is a committee not a committee? When it is a subcommittee.
More than just a punchline, this is one of the key facts that led a U.S. district judge recently to dismiss charges against an employee of British Petroleum arising from his statements made in response to inquiries from a Congressional subcommittee regarding the BP Horizon oil spill in the Gulf of Mexico.
In United States v. David Rainey, the defendant was charged inter alia with a violation of Title 18, United States Code section 1505, which criminalizes the obstruction of “the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.” The charges against Rainey were based upon allegedly false statements that he made to the House Subcommittee on Energy and Environment of the Committee on Energy and Commerce. One basis on which the defendant sought to dismiss the charge against him was the argument that the statute does not include the term “subcommittee” and therefore did not apply to his conduct.
In granting Rainey’s motion to dismiss, U.S. District Judge Kurt D. Engelhardt of the Eastern District of Louisiana emphasized that, “where a criminal defendant’s strict reading of a criminal statute is reasonable, the court is not free to choose among reasonable interpretations the version that (in the court’s view) represents better policy or better accomplishes a perceived broad congressional purpose.” The Court noted that a generic reading of the term “committees” would include subcommittees, as the government argued, but that “[w]ithin Congress, the terms ‘committee’ and ‘subcommittee’ have distinct meanings” and are “terms of art.” Because the Court could not “say with certainty” that Congress intended section 1505 to reach subcommittee inquiries, the Court dismissed the charge under that statute relating to Rainey’s statements to the subcommittee.
To the extent that Congress pursues investigative inquiries through its subcommittees, the Rainey case obviously provides a cautionary tale for prosecutors who seek to bring criminal charges based on the conduct of those who respond to those inquiries. Given that the purpose of Congressional inquiries is not specifically to entrap individuals in criminal conduct, this ruling – even if followed by other courts – is not likely to change the way in which Congress pursues its inquiries. The case is notable, however, as an excellent example of careful parsing of a criminal statute that may be useful to defense counsel seeking to apply the same rule of lenity to other criminal statutes.
Earlier this week, attorneys for convicted computer hacker Andrew “Weev” Auernheimer filed their opening brief in their appeal to the U.S. Court of Appeals for the Third Circuit to have his conviction overturned.
In 2010, Auernheimer’s co-defendant Daniel Spitler, who agreed to plead guilty in 2011, discovered a flaw in AT&T’s iPad user database, that he used to collect 114,000 email addresses. Auernheimer then disclosed those email addresses to Gawker, who published a redacted form of some of the account information. The disclosure of the email addresses attracted significant media attention and ultimately forced AT&T to change their security protocols.
Last November, Auernheimer was found guilty by a jury after a five day trial of violating the Computer Fraud and Abuse Act (CFAA) and conspiracy to gain unauthorized access to a computer without authorization. He was sentenced in March to 41 months imprisonment to be followed by three years of supervised release.
The CFAA prohibits accessing a computer without proper authorization, which is the same statute that Internet activist Aaron Swartz was convicted of violating. The law has faced steep criticism for being overly broad and allowing prosecutors wide discretion by allowing them to charge individuals who have violated a website’s terms of service. Last month “Aaron’s Law” was introduced in Congress, which would amend the CFAA to prevent prosecutors from charging an individual with violation a company’s terms of service and from bringing multiple charges against an individual for the same act.
The government’s brief is due on July 22 and Auernheimer will then have the opportunity to file a reply brief by August 5.
We will know in a matter of months how the Third Circuit will rule on Auernheimer’s appeal and whether his conviction and sentence will be upheld. This case raises some very interesting issues on the scope of computer crime laws and prosecutorial discretion. Is the conduct of Auernheimer the type that we need to devote government resources to send a person with no criminal record to prison for a significant period of time?
For all its benefits, social media has posed some significant challenges for our criminal justice system. One of the more common problems – Internet-related juror misconduct – has been the subject of numerous criminal appeals lately. It has also burdened federal and state governments with added costs for misconduct hearings and retrials. It is no wonder, then, that the Cuyahoga County Prosecutor’s office in Ohio took swift and decisive action when confronted with Internet-related misconduct by one of its own.
Cleveland-area prosecutor Aaron Brockler was recently fired for contacting trial witnesses on Facebook to dissuade them from providing testimony on behalf of defendant Damon Dunn. Dunn was on trial for aggravated murder in connection with a May 2012 shooting, and Brockler was lead prosecutor on the case.
Before trial, the defense team notified Brockler that two of Dunn’s former girlfriends were prepared to provide an alibi for the defendant, testifying that he was on the other side of town when the murder victim was shot. Brockler was concerned that Dunn might walk free, so the prosecutor decided to contact the witnesses on Facebook. First, Brockler created a fake Facebook profile and “friended” the alibi witnesses. In a series of chats, Brockler told the witnesses he was the defendant’s ex-girlfriend and the mother of Dunn’s child. According to Brockler, the women went “crazy” at the news. As a result, one witness decided she would not lie for Dunn, and the other admitted she wasn’t with him when the crime occurred.
The witnesses later complained that they were being harassed on Facebook. Investigators in the Prosecutor’s Office traced the online activity to Brockler’s office computer. Ultimately, Brockler admitted to his online chats with the women, but denied any wrongdoing. According to him, “[l]aw enforcement, including prosecutors, have long engaged in the practice of using a ruse to obtain the truth.” Brockler’s former colleagues disagreed. County Prosecutor Timothy McGinty said it best: “By creating false evidence, lying to witnesses as well as to another prosecutor, Aaron Brockler damaged the prosecution’s chances in a murder case where a totally innocent man was killed at his work.”
After Brockler was fired, the entire prosecutor’s office was recused from the case, and the matter was handed over to the office of Ohio’s attorney general. A pretrial hearing is scheduled for July 11.
Many laypersons are unaware (and many lawyers forget) that, as officers of the court, lawyers are prohibited from making false statements of material fact or law. It is true that in limited circumstances, police officers are permitted to lie to suspects about the nature of the evidence in their possession and similar matters, but police officers are not considered officers of the court and are subject to cross-examination as witnesses; this is not true of prosecutors.
In Ohio, as in every other U.S. jurisdiction, attorneys admitted to the practice of law are required to be truthful. In particular, Rule 4.1(a) of the Ohio Rules of Professional Conduct states that, in the course of representing a client, a lawyer “shall not knowingly . . . make a false statement of material fact or law to a third person.” Lawyers are also bound by certain restrictions on communications with a third party depending on whether or not the third party is represented by counsel.
Brockler’s Facebook chats violated Ohio’s requirement for truthfulness in the course of representation because Brockler conducted the chats using a fake profile. Brockler contacted the defense witnesses by posing as Dunn’s fictitious ex-girlfriend and the mother of Dunn’s child; he used the misrepresentations to foment the witnesses’ anger against the defendant so they would change their testimony or refuse to testify on his behalf.
One could argue that Brockler’s deception seemed to aid the search for truth in Dunn’s case, but the deception might just as easily frustrate the search for truth in another case. The rules avoid this problem by prohibiting a lawyer’s knowing deception across the board.
If Brockler’s ruse had not been discovered, it may have helped him win a conviction. But there are crucial societal values that also must be upheld and that are more important than winning a conviction at all costs.