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Archive for November, 2015

Homeland Security Investigating Roughly 900 Homegrown Terrorism Suspects in U.S.

ISIS flag

ISIS flag

By Steve Neavling
ticklethewire.com

Homeland Security estimates there are roughly 900 investigations into homegrown terrorists in the U.S., and a vast majority have ties to ISIS, the New York Daily News reports. 

A recent report by Homeland Security said investigations have netted 71 arrests related to ISIS.

The suspects range from Americans to immigrants.

But most suspects were American citizens in their early 20s.

GOP Presidential Candidate Fiorina: IRS Has More Agents Than FBI, CIA

Carly Fiorina

Carly Fiorina

By Steve Neavling
ticklethewire.com

Republican presidential candidate Carly Fiorina pointed out “a startling fact” on Tuesday: The IRS has more agents than the FBI and CIA.

“Does that strike you as a mis-allocation of resources? Of course it is. We need to take this terror threat seriously,” Fiorina said in an interview with Fox News. 

While it’s unclear how many agents the CIA has because of its classified budget, the employment numbers are disproportionate. The IRS is authorized in its budget to have 82,203 employees, while the FBI has 35,000 employees.

Fiorina said she supports increasing “the amount of agents we have on the ground.”

“Let’s get real here and talk about who’s the enemy and do what is necessary to protect our nation, because the first and most important responsibility of the federal government is to protect the nation,” she said.

Congressman Calls for Resignation of DEA Chief Over Marijuana Remarks

MarijuanaBy Steve Neavling
ticklethewire.com

Rep. Early Blumenauer called for the resignation Wednesday of the acting DEA chief Chuck Rosenberg for saying it’s a “joke” to suggest that marijuana has medicinal benefits, the Huffington Post reports. 

“Rosenberg is clearly not the right fit for the DEA in this administration,” Blumenauer said during a speech on the House floor Wednesday morning.

Rosenberg made the comments earlier this month.

“What really bothers me is the notion that marijuana is also medicinal — because it’s not,” Rosenberg said. “We can have an intellectually honest debate about whether we should legalize something that is bad and dangerous, but don’t call it medicine — that is a joke.”

Blumenauer fired back.

“What is a joke is the job Rosenberg is doing as acting DEA administrator,” he said. “He’s an example of the inept, misinformed zealot who has mismanaged America’s failed policy of marijuana prohibition.”

He added: “Rosenberg’s claim that more research is necessary is true, but it reeks of hypocrisy because the DEA under his leadership has made badly needed cannabis research difficult, often impossible.”

FBI Investigates ISIS Video That Warns of Potential Terrorism Attack in NYC

new york city3 cabsBy Steve Neavling
ticklethewire.com

Responding to threats of a terrorist attack by ISIS in New York City, the FBI and New York police said there are no specific threats, Reuters reports. 

ISIS suggested in a video that New York City is a potential target for attacks similar to the ones in Paris.

“While some of the video footage is not new, the video reaffirms the message that New York City remains a top terrorist target,” Stephen Davis, a deputy NYPD commissioner, said in a statement. “While there is no current or specific threat to the city at this time, we will remain at a heightened state of vigilance.”

The FBI said it is investigating the threats.

ISIS took credit for the Paris attacks in the video, which shows New York City and a suicide bomber holding a trigger.

“Footage of New York shown in the ISIS video was taken from a video released by the group in April of this year. So while NYC is and has been a target for ISIS, today’s video does not warrant any kind of panic,” SITE director Rita Katz said in an email to Reuters.

Other Stories of Interest

Supreme Court in December Will Hear Case on Texas Businessman Convicted of Illegally Accessing Protected Computer

US_Supreme_Court

By Ross Parker
ticklethewire.com

The only oral argument before the Supreme Court during the last month of 2015 on an issue involving criminal law or procedure is Musacchio v. United States. The case involves the conviction on three counts of a North Texas businessman for conspiracy and for making unauthorized access to a protected computer of a competitor (for which he was previously employed) through a back-door password. He was sentenced to 63 months in prison. The civil case for his conduct was settled for $10 million.

The case presents two issues:

  1. Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
  1. Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal?

Sounds like pretty dry stuff, huh? The kind of legal fare appetizing only to criminal lawyers and probably few of them. It, however, should present a meal of delicious irony during oral argument.

Stripped of its legal minutia, the fact is that both parties lapsed at the trial level on different issues and are now seeking appellate forgiveness under an application of the “plain error” rule. But each will want no such forgiveness for their opponent on the other issue. The government offers in addition a multitude of other reasons why the defense legal analysis is erroneous and, in any event, not applicable.

As to the first issue the statute permits alternative theories of proof for conviction. The evidence can establish that the defendant agreed to make unauthorized access (or made such access) or that he conspired to exceed authorized access (or actually exceeded such authorized access). The proofs in this case relied upon the former alternative both as to the conspiracy count and the two substantive counts.

The statute was properly charged in the indictment. But the trial judge, apparently in disregard of the government’s correct requests, presented the erroneous charge to the jury that the evidence had to be proven conjunctively (and) rather than disjunctively (or) as to the two alternative elements in the conspiracy count. The government did not object to the instruction, which it asserts was inadvertent and “clerical.” Now the government argues, among other things, that this was plain error which could be excused on appeal.

The defendant, however, relies on cases holding that the error waived appellate consideration and correction of the issue and that the appellate review of the sufficiency of the evidence requires proof of both alternative theories. Hence, the “law of the case” applies. And the Circuit Courts are somewhat split.

On the second issue, the tables are turned. The defendant, in effect, argues for forgiveness for his counsel’s failure to raise at trial the statute of limitations defense. This was plain error which can, in the view of some Circuit Courts, be raised on appeal. This time the government counters that the issue is not jurisdictional, unreviewable on appeal, and that the defendant waived the issue. And, again, there is some difference in the Circuits on the reviewability of this issue.

Of course few things that find their way to the Court are ever simple. The plain error/waiver rule for the two issues involves different rationales and case law threads. The Court could excuse both parties’ lapses, neither of them, or one and not the other. A decision behind door # 3 might seem anomalous to common sense, but there are a host of related arguments and sub-issues that bear on the analysis of the contexts of both questions.

Prediction: The government should win this round of the litigation. The jury found that both of the alternative methods of proof were established by the evidence, and it is weird to require the Court to, in effect, create a crime requiring both methods to review the sufficiency of the evidence just because the government didn’t object to a single erroneous instruction. As to the statute of limitations issue, the defendant should lose this one, also, since there is no reason to believe that the statute was intended to make the question jurisdictional. To make the question reviewable on appeal would prevent the government from raising factual issues at trial that could convince the jury to reject the claim.

However, in round # 2, the defendant will undoubtedly file a post-conviction, habeas corpus claim that his trial attorney rendered ineffective assistance of counsel in failing to file a statute of limitations objection. He could win a reversal of the conspiracy conviction although, unless he gets a re-sentencing, his concurrent sentence on one of the remaining counts makes it unlikely he will be home to watch the Dallas Cowboys games anytime soon.

Parker: Supreme Court in December Will Hear Case on Texas Businessman Convicted of Illegally Accessing Protected Computer

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

Ross Parker

Ross Parker

By Ross Parker
ticklethewire.com

The only oral argument before the Supreme Court during the last month of 2015 on an issue involving criminal law or procedure is Musacchio v. United States. The case involves the conviction on three counts of a North Texas businessman for conspiracy and for making unauthorized access to a protected computer of a competitor (for which he was previously employed) through a back-door password. He was sentenced to 63 months in prison. The civil case for his conduct was settled for $10 million.

The case presents two issues:

  1. Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment?
  1. Whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal?

Sounds like pretty dry stuff, huh? The kind of legal fare appetizing only to criminal lawyers and probably few of them. It, however, should present a meal of delicious irony during oral argument.

Stripped of its legal minutia, the fact is that both parties lapsed at the trial level on different issues and are now seeking appellate forgiveness under an application of the “plain error” rule. But each will want no such forgiveness for their opponent on the other issue. The government offers in addition a multitude of other reasons why the defense legal analysis is erroneous and, in any event, not applicable.

As to the first issue the statute permits alternative theories of proof for conviction. The evidence can establish that the defendant agreed to make unauthorized access (or made such access) or that he conspired to exceed authorized access (or actually exceeded such authorized access). The proofs in this case relied upon the former alternative both as to the conspiracy count and the two substantive counts.

The statute was properly charged in the indictment. But the trial judge, apparently in disregard of the government’s correct requests, presented the erroneous charge to the jury that the evidence had to be proven conjunctively (and) rather than disjunctively (or) as to the two alternative elements in the conspiracy count. The government did not object to the instruction, which it asserts was inadvertent and “clerical.” Now the government argues, among other things, that this was plain error which could be excused on appeal.

The defendant, however, relies on cases holding that the error waived appellate consideration and correction of the issue and that the appellate review of the sufficiency of the evidence requires proof of both alternative theories. Hence, the “law of the case” applies. And the Circuit Courts are somewhat split.

On the second issue, the tables are turned. The defendant, in effect, argues for forgiveness for his counsel’s failure to raise at trial the statute of limitations defense. This was plain error which can, in the view of some Circuit Courts, be raised on appeal. This time the government counters that the issue is not jurisdictional, unreviewable on appeal, and that the defendant waived the issue. And, again, there is some difference in the Circuits on the reviewability of this issue.

Of course few things that find their way to the Court are ever simple. The plain error/waiver rule for the two issues involves different rationales and case law threads. The Court could excuse both parties’ lapses, neither of them, or one and not the other. A decision behind door # 3 might seem anomalous to common sense, but there are a host of related arguments and sub-issues that bear on the analysis of the contexts of both questions.

Prediction: The government should win this round of the litigation. The jury found that both of the alternative methods of proof were established by the evidence, and it is weird to require the Court to, in effect, create a crime requiring both methods to review the sufficiency of the evidence just because the government didn’t object to a single erroneous instruction. As to the statute of limitations issue, the defendant should lose this one, also, since there is no reason to believe that the statute was intended to make the question jurisdictional. To make the question reviewable on appeal would prevent the government from raising factual issues at trial that could convince the jury to reject the claim.

However, in round # 2, the defendant will undoubtedly file a post-conviction, habeas corpus claim that his trial attorney rendered ineffective assistance of counsel in failing to file a statute of limitations objection. He could win a reversal of the conspiracy conviction although, unless he gets a re-sentencing, his concurrent sentence on one of the remaining counts makes it unlikely he will be home to watch the Dallas Cowboys games anytime soon.

Federal Authorities Search for Human Smuggler Who Assaulted Border Patrol Agent

Martel Valencia-Cortez

Martel Valencia-Cortez

By Steve Neavling
ticklethewire.com

Federal authorities are on the hunt for a human smuggler who struck a Border Patrol agent in the face in southern California, the San Diego Union-Tribune reports. 

Authorities were moving in on a suspected smuggler who was helping 14 people navigate the hazardous terrain near Carries Mountain near Jacumba on Sunday night.

The suspect, Martel Valencia-Cortez, 39, is accused of throwing a large rock at Border Patrol agents, striking one of them in the face.

Valencia-Cortez returned fire but didn’t appear to injure him as he fled toward Mexico.

Agents arrested and interviewed the 14 people who were with Valencia-Cortez.

AG Lynch Says No Data Supports FBI Director’s Comments on ‘Ferguson Effect’

camera policeBy Steve Neavling
ticklethewire.com

Attorney General Loretta Lynch joined the debate over the so-called “Ferguson effect,” saying there’s no data to show that crime is on the rise because of criticism over police tactics, CNN reports. 

“While certainly there might be anecdotal evidence there, as all have noted, there’s no data to support it,” Lynch said in an appearance before the House Judiciary Committee on Tuesday.

The comments come a month after FBI Director James Comey said officers were reluctant to enforce the law at times because of viral videos of cops making arrests.

“In today’s YouTube world, are officers reluctant to get out of their cars and do the work that controls violent crime? Are officers answering 911 calls but avoiding the informal contact that keeps bad guys from standing around, especially with guns?” he asked in a speech at the University of Chicago Law School, his alma mater.

“I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.”

Lynch’s comments were similar to President Obama’s administration.

“The available evidence at this point does not support the notion that law enforcement officers are shying away from fulfilling their responsibilities,” White House press secretary Josh Earnest said at a daily briefing soon after Comey’s remarks.

“The evidence we’ve seen so far doesn’t support the contention that law enforcement officials are somehow shirking their responsibility, and in fact you’ve seen law enforcement leaders across the country indicating that’s not what’s taking place,” he said.