Articles Posted in Internet Crimes

We handle lots of federal cases involving supposedly illegal activity over the Internet, which means some of our clients are far from our offices here in Atlanta. Because of that, we try to pay attention even when a federal criminal case is far away, such as the recent ruling by the Court of Appeals in California that invalidated a federal criminal conviction because of an illegal search. What really piqued my interest is that the case is yet another example of the trend where judges are becoming ever more suspicious of Internet-based surveillance techniques that lead to evidence of a crime. The Court was especially vexed because a military investigator in Georgia used the Navy’s vast resources basically to investigate a local crime in Washington State, which led to Michael Dreyer’s indictment and conviction in federal court. The opinion is here.

The federal Naval Investigator was working undercover from his office in lovely Brunswick, Ga. He signed on to a large file-sharing network sometimes used by traders in child pornography, using a special computer program called RoundUp. The agent then scanned computer activity by the network’s members in the state of Washington, regardless as to whether the computer was being used by anyone in military. Finding a computer that had child pornography, the agent downloaded some photos and forwarded the material to local investigators who then got search warrants which led to federal criminal charges against Mr. Dreyer.
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Yesterday, I concluded my case where we represented the Defendant in what seems to be the very first federal criminal prosecution for selling the prescription drug “Adderall”. Early in the case, the prosecutor (and the probation officer) argued that the Sentencing Guidelines for this crime exceeded 10 years. Later, we got them down to 57-71 months. We filed an aggressive Sentencing Memorandum (Download file) arguing that the Guidelines and the whole case was far out of line. Yesterday, a United States District Judge sitting in Brooklyn, New York agreed with us, refused to put our client in jail, and imposed a sentence of 6 months home confinement.

We live in a pill-popping culture where pharmaceutical companies create more and more drugs that they claim we “need” to survive. Adderall is a drug prescribed mostly for Attention Deficit and Hyperactivity Disorder. It is well-known that this drug is often used, traded and sold by college students as a “study aid.” More and more professionals use the drug to get through a big test or hard and stressful workload. Some stories have called it “Ivy League Crack.”

Our client wanted to go to medical school. She had a romantic relationship with a medical doctor, who wrote Adderall prescriptions to supposedly “help” her study for the MCAT’s. The doctor came up with the bright idea of writing more and more Adderall prescriptions, and then selling the excess pills to other Yuppies through Craiglist. He had our client fill most of the prescriptions, and showered her with gifts and trips using the proceeds. The couple broke up, he got busted, and turned on our client, resulting in her arrest as she got off a plane here in Atlanta. The case was prosecuted in the Eastern District of New York, where the doctor had been doing his medical residency.

Last week, the Eleventh Circuit Court of Appeals, sitting en banc, decided United States v. Irey. The 142-page majority opinion recounted gruesome sex crimes that Mr. Irey admitted to committing against as many as 50 Cambodian girls, some as young as four years old. The Court held that the 17½ year sentence ordered by the federal district court judge was a substantively unreasonable downward variance and remanded for sentencing within the Sentencing Guidelines range, which was 30 years at both the top and bottom. As one of the dissenting judges noted, “hard facts often lead to bad law” and we worry that this case will unduly limit district court judges’ discretion in imposing variances in future sentencing decisions.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

Last week, a panel of the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, reversed a decision by the newest member of their Court, Judge Beverly Martin. Prior to her appointment to the Eleventh Circuit, Judge Martin was a district court judge here in the Northern District of Georgia. As a member of that court, in U.S. v. Farley, she decided that a 30-year mandatory minimum sentence for a man who crossed state lines with the intent to have sex with a child under twelve was cruel and unusual punishment where the “child” did not exist and the defendant had no criminal history and was unlikely to re-offend.

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

This week, the Supreme Court held that 18 U.S.C. § 48, which criminalized the creation, sale, or possession of depictions of animals being harmed in illegal ways for commercial gain, is unconstitutionally overbroad. Although it had an exemption clause for portrayals with “serious religious, political, scientific, educational, journalistic, historical, or artistic value” the statute criminalized a significant amount of speech protected by the First Amendment.

The statute defines “depictions of animal cruelty” as including portrayals of animals being “wounded or killed,” among other actions with more cruel connotations. The Court held that, because “wound” and “kill” are not ambiguous, they may not be interpreted in light of neighboring words that imply cruelty. In addition, “depictions of animal cruelty” include any wounding or killing that is illegal where the depiction is sold or possessed, regardless of whether that action was legal where it occurred.

Thus, depictions of any animal being harmed legally could be criminalized if possessed or sold in a place where such actions were not legal. The prime example of criminalized protected speech was hunting magazines and television shows that are distributed or aired in Washington, D.C., where all hunting is illegal. It could also criminalize representations of the treatment of livestock where states have different agricultural regulations.

Ed. Note: The first of this month, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. This is our final post analyzing some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

As we discussed in this post in July, a new federal law directed at online pharmacies went into effect this April. The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription, or to advertise for such distribution. In response to this Act, the United States Sentencing Commission made several amendments to the Sentencing Guidelines, including a new sentencing enhancement at §2D1.1, increasing the base offense levels for hydrocodone offenses, and assigning guidelines to the two new offenses created by the Act.

New Sentencing Enhancement at §2D1.1

In this article last week, The National Law Journal reported that the U.S. Sentencing Commission is holding a series of hearing in conjunction with the 25th anniversary of the Sentencing Reform Act to get feedback on federal sentencing issues. One of these hearings was held here in Atlanta, Georgia, this February. Testimony and written statements from the hearings is available here.

Last week’s hearings took place in Chicago on September 9 and 10. The agenda is available here. Testimony on the first day came primarily from federal judges, but also included probation officers and community impact speakers. The next day, the Commission heard from United States Attorneys and federal defense attorneys, as well as receiving perspectives on alternatives to incarceration.

Many of the judges who testified mentioned the unfairly long sentences recommended by the sentencing guidelines for people convicted of possessing child pornography.

Chief Judge James Carr of the Northern District of Ohio and Chief Judge Gerald Rosen of the Eastern District of Michigan told the panel on Wednesday that sentencing for possession of child pornography, as opposed to manufacture or commercial distribution, may need to be changed. Many people convicted on the offense are not threats to the community, but rather socially awkward first-time offenders, they said.

In a potentially huge decision for criminal law in Georgia, Florida, and Alabama, the Eleventh Circuit federal appeals court in Atlanta held that twenty-one days was an unreasonably long time for law enforcement to wait before obtaining a search warrant after seizing a man’s computer hard drive. Because the circumstances of this case, United States v. Mitchell, failed to justify the three-week delay, the trial court should have suppressed the evidence discovered on the hard drive.

The Fourth Amendment‘s protection against unreasonable seizures both guards us against unreasonable arrests and protects our possessory interests in personal property. Even with probable cause to seize property, the duration of the seizure pending the issuance of a search warrant must still be reasonable. Courts determine reasonableness by weighing the government interests against private interests. This rule ensures the prompt return of property, should a search reveal no incriminating evidence.

In Mitchell, the Court acknowledged the substantial possessory interest people have in their computers’ hard drives. Computers are heavily relied upon for both personal and business uses, storing information including financial information, passwords, photos, e-mails, and countless other items. The Court called the hard-drive “the digital equivalent of its owner’s home, capable of holding a universe of private information.”

The Office of the Inspector General for the U.S. Department of Justice issued a massive report earlier this week concerning how the various federal prosecutors around the country are doing (or not doing) their jobs. While there’s a lot of truth to the old saying about “lies, damn lies and statistics”, the numbers in this report give some clues about why certain federal white collar criminal investigations simply wither away over time.

The Department of Justice is the mother ship for all of the various lawyers who work for the federal government. When it comes to prosecuting federal criminal cases, the 94 U.S. Attorneys offices around the country have front-line responsibility. The U.S. Attorney him or herself is a person appointed by the President to head up one of these 94 offices. However, the day-to-day operations usually are handled by prosecutors who have generally made a career of or have spent a long time as an Assistant U.S. Attorney (AUSA). The statistics in this new report show that there can be great variations between the 94 offices when it comes to how AUSA’s handle white collar federal criminal cases.

Some of the statistics in this report are set out in Appendix XIV. This Appendix details how federal prosecutors have handled white collar criminal investigations over the past 5 years. The Appendix goes through each of the 94 U.S. Attorneys offices, and details how many such cases were referred to the prosecutors, provides numbers on how many were actually prosecuted, gives figures on how many were refused for prosecution, and sets out how many are still just hanging around with no decision.