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Archive for February, 2016

FBI Director James Comey on Encrypted Phone: ‘San Bernardino Litigation Isn’t About Trying to Set a Precedent or Send Any Kind of Message’

FBI Director James Comey

FBI Director James Comey

By Allan Lengel
ticklethewire.com

The battle between the FBI and Apple is on. The FBI wants the giant company to help the bureau crack the encryption of a phone belonging to one of the terrorist in San Bernardino is a big deal.

A federal judge has ordered the company to help the FBI, but Apple has vowed to fight the case in court, saying the privacy of Americans is at issue.

Besides a legal battle, a battle is being fought on the public stage of opinion.

On Sunday night, the FBI released this statement from James Comey, director of the FBI, who has expressed great frustration over the issue of encrypted devices.

Comey stated:

The San Bernardino litigation isn’t about trying to set a precedent or send any kind of message. It is about the victims and justice.  Fourteen people were slaughtered and many more had their lives and bodies ruined.  We owe them a thorough and professional investigation under law.  That’s what this is.  The American people should expect nothing less from the FBI.

The particular legal issue is actually quite narrow. The relief we seek is limited and its value increasingly obsolete because the technology continues to evolve.  We simply want the chance, with a search warrant, to try to guess the terrorist’s passcode without the phone essentially self-destructing and without it taking a decade to guess correctly.  That’s it.  We don’t want to break anyone’s encryption or set a master key loose on the land.  I hope thoughtful people will take the time to understand that.  Maybe the phone holds the clue to finding more terrorists.  Maybe it doesn’t.  But we can’t look the survivors in the eye, or ourselves in the mirror, if we don’t follow this lead.

Reflecting the context of this heart-breaking case, I hope folks will take a deep breath and stop saying the world is ending, but instead use that breath to talk to each other.  Although this case is about the innocents attacked in San Bernardino, it does highlight that we have awesome new technology that creates a serious tension between two values we all treasure – privacy and safety.  That tension should not be resolved by corporations that sell stuff for a living.  It also should not be resolved by the FBI, which investigates for a living.  It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before.  We shouldn’t drift to a place – or be pushed to a place by the loudest voices – because finding the right place, the right balance, will matter to every American for a very long time.

So I hope folks will remember what terrorists did to innocent Americans at a San Bernardino office gathering and why the FBI simply must do all we can under the law to investigate that.  And in that sober spirit, I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need.

Supreme Court Oral Arguments in March, With An Empty Seat on the Bench

Justice Antonin Scalia

Justice Antonin Scalia

By Ross Parker
ticklethewire.com

When counsel approach the lectern in the Supreme Court for oral argument during the rest of the term, instead of facing the blistering questions of the Court’s most aggressive inquisitor, they will instead see an empty chair among the nine on the bench, draped with a black sash. One of the Court’s most active and entertaining interrogators has bedeviled his last lawyer. There will be less laughter in the courtroom.

Justice Antonin Scalia died on February 13, 2016, one month shy of his eightieth birthday. Befitting his colorful life, it was after a day of quail hunting in West Texas. Although the politicians are rumbling about his successor and the conspiracy theorists whispering about the circumstances of his death, it was in all likelihood a peaceful death after an active life of purpose, whether you agree with his brand of conservatism or not.

In criminal cases, he generally supported the government. Along with Justice Thomas, he was unapologetically pro-death penalty, whether the defendant was under-age, mentally retarded, or subject to a botched execution. After all, those were all legal in 1791 when the 8th Amendment was ratified. He also labored to overrule the Warren revolution of cases restricting the police, especially Miranda v. Arizona.

But he could vote for the defendant, too, especially in areas involving jury trial rights and the traditional authority of trial judges. His Booker opinion ended mandatory Sentencing Guidelines. And Apprendi v. Arizona stopped judge-decided facts leading to sentence enhancements. He also was protective against the reach of technology. In Kylio he authored the opinion requiring search warrants for thermal imaging searches. Marijuana grow lights became a bit more private.

Despite his sometimes angry and outrageous vitriol during argument and in his opinions, he was by all accounts well liked by his colleagues on the bench and the staff. He was one of a kind and his death diminishes the energy and vivacity of the institution.

Without Justice Scalia’s contributions, the Court will consider two criminal cases during its March oral arguments. Betterman v. Montana raises one of those issues that you would have thought had already been decided — whether the 6th Amendment guarantee of a speedy trial applies to the sentencing phase. Are defendants protected against inordinate delay in the final disposition of sentence by the 6th Amendment?

The defendant pled guilty to bail jumping after he failed to appear for sentencing on a domestic assault conviction. He explained that he did not have transportation from Butte to the courthouse in Billings. He eventually sobered up enough to turn himself in to the county jail, where he remained for 14 months when he was finally sentenced to 7 years consecutive to his 5 year sentence for assault, with no credit for time served. Don’t go in the wind in Montana after beating up your spouse.

The Montana Supreme Court held that Speedy Trial does not apply to sentence delays, only due process. Although the court found the delay to be unacceptable and attributable to the state, the prejudice shown by the defendant, delaying rehabilitative programs and other benefits in prison compared to the county jail, was speculative and insufficient.

The prosecution argues that the issue is more properly one of due process and that the burden of proof of prejudice is on the defendant.

When the 6th Amendment was ratified in the late 18th Century, most penalties were fixed and were imposed immediately after the verdict or within a few days. Today’s sometimes extended sentence proceedings and alternatives have changed that process considerably. Because over 95% of the defendants plead guilty, the period from conviction to sentence has become the most crucial and litigated phase of the proceeding. Delays which impair the ability to defend oneself, as well as other rehabilitative resources and requirements, can significantly affect a defendant’s eligibility to someday become a free person.

To a large extent the question becomes, what does “trial” mean in the context of the 6th Amendment – the proceeding determining guilt or innocence, or the entire proceeding to the entry of judgment at sentencing. Did the Founders actually intend that the right is one of Speedy Justice, much like the other 6th Amendment right to a public trial (which extends to sentence)?

Likewise whose responsibility is it to prove the presence or absence of prejudice from delays, the defendant’s or the state’s?

Prediction: This presents a close question, probably made closer by Justice Scalia’s absence. I believe the Court will extend the 6th Amendment to the sentencing phase and it will also find prejudice in this case.

The other case scheduled for oral argument in March is Welch v. United States. The issued posed is whether in a habeas case a Florida conviction for “robbery sudden snatching” qualifies as a predicate for Armed Career Criminal Act (ACCA) sentence enhancement. A preliminary question is whether the Court’s opinion last term in Johnson v United States should be applied retroactively to cases on collateral review.

The Armed Career Criminal Act subjects a defendant convicted of being a felon in possession of a firearm to a longer sentence if he has 3 prior convictions which are either:  a violent felony (involving the use or threatened use of force): one of 4 named felonies (burglary, arson, extortion or use of explosives); or otherwise involves conduct which presents a potential risk of physical injury. Johnson invalidated this last option, called the residual clause as being void for vagueness.

To qualify Welch’s prior convictions of robbery sudden snatching must satisfy the “force” requirement of the first option—if Johnson is retroactive. There seems to be a serious question of whether the Florida statute requires force as an element. If not, the defendant would not have the requisite 3 predicate convictions.

The government’s argument is that, if the Court makes Johnson retroactive, it should remand the case to the 11th Circuit to determine this question. The defendant argues that this issue is “readily apparent” and that the Court should reverse.

Prediction: The Court will hold that Johnson is retroactive. The issue is substantive, not procedural, and involves a new rule of constitutional law involving the range of conduct and class of persons which the law punishes. I am not sure the record has completely explored the issue of the Florida statute’s elements. It makes more sense for a lower court to determine this question in its first instance. I think the Court will remand to consider this question.

Despite frequent differences with Justice Scalia’s holdings and judicial philosophy, I feel a real sense of his loss by his passing. His contribution to the evolution to the rule of law and the operation of the highest Court was unique. He was a force of nature who had a set of brass ones.

Parker: Supreme Court Oral Arguments in March, With An Empty Seat On the Bench

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

When counsel approach the lectern in the Supreme Court for oral argument during the rest of the term, instead of facing the blistering questions of the Court’s most aggressive inquisitor, they will instead see an empty chair among the nine on the bench, draped with a black sash. One of the Court’s most active and entertaining interrogators has bedeviled his last lawyer. There will be less laughter in the courtroom.

Justice Antonin Scalia died on February 13, 2016, one month shy of his eightieth birthday. Befitting his colorful life, it was after a day of quail hunting in West Texas. Although the politicians are rumbling about his successor and the conspiracy theorists whispering about the circumstances of his death, it was in all likelihood a peaceful death after an active life of purpose, whether you agree with his brand of conservatism or not.

In criminal cases, he generally supported the government. Along with Justice Thomas, he was unapologetically pro-death penalty, whether the defendant was under-age, mentally retarded, or subject to a botched execution. After all, those were all legal in 1791 when the 8th Amendment was ratified. He also labored to overrule the Warren revolution of cases restricting the police, especially Miranda v. Arizona.

But he could vote for the defendant, too, especially in areas involving jury trial rights and the traditional authority of trial judges. His Booker opinion ended mandatory Sentencing Guidelines. And Apprendi v. Arizona stopped judge-decided facts leading to sentence enhancements. He also was protective against the reach of technology. In Kylio he authored the opinion requiring search warrants for thermal imaging searches. Marijuana grow lights became a bit more private.

Justice Antonin Scalia

Justice Antonin Scalia

Despite his sometimes angry and outrageous vitriol during argument and in his opinions, he was by all accounts well liked by his colleagues on the bench and the staff. He was one of a kind and his death diminishes the energy and vivacity of the institution.

Without Justice Scalia’s contributions, the Court will consider two criminal cases during its March oral arguments. Betterman v. Montana raises one of those issues that you would have thought had already been decided — whether the 6th Amendment guarantee of a speedy trial applies to the sentencing phase. Are defendants protected against inordinate delay in the final disposition of sentence by the 6th Amendment?

The defendant pled guilty to bail jumping after he failed to appear for sentencing on a domestic assault conviction. He explained that he did not have transportation from Butte to the courthouse in Billings. He eventually sobered up enough to turn himself in to the county jail, where he remained for 14 months when he was finally sentenced to 7 years consecutive to his 5 year sentence for assault, with no credit for time served. Don’t go in the wind in Montana after beating up your spouse.

Read more »

Weekend Series on Crime History: Chicago Mobster Tony Spilotro; 30 Years of ABC News Footage

Facebook, Twitter Support Apple’s phone encryption battle with FBI

By Steve Neavling
ticklethewire.com

Social media giants Facebook and Twitter are siding with Apple’s fight against the FBI’s attempt to weaken encryption.

“We condemn terrorism and have total solidarity with victims of terror. Those who seek to praise, promote, or plan terrorist acts have no place on our services,” Facebook said in a statement Thursday.

“However, we will continue to fight aggressively against requirements for companies to weaken the security of their systems. These demands would create a chilling precedent and obstruct companies’ efforts to secure their products.”

Twitter CEO Jack Dorsey tweeted: We stand with @timcook and Apple (and thank him for his leadership)!”

The comments come after a federal magistrate ordered Apple to make it easier to crack the iPhone’s password. The FBI has been unable to access an iPhone 5c that belonged to one of the San Bernardino killer.

Technology companies are worried about setting a legal precedent to allow the government to using hacking tools to access private information.

The FBI argues that the uncrackable encryption is thwarting its fight against terrorism.

Buffalo Woman Accused of Supporting ISIS, Threatening FBI Agents on Twitter

Safya Roe Yassin

Safya Roe Yassin

By Steve Neavling
ticklethewire.com

A Buffalo woman is accused of using Twitter to make pro-ISIS statements and threaten two FBI agents.

A criminal complaint says Safya Roe Yassin, 38, tweeted the names, phone numbers and cities of two FBI agents under the words, “Wanted to Kill,” the Springfield News-Leader reports. 

Yassin also is accused of using dozens of Twitter accounts to post statements supporting ISIS.

“The West thinks that caging Muslims will stop ‘terrorism’ …but they will be finding out soon, it only increases the attacks against them,” one of the tweets read.

Yassin has been charged with communicating threats of violence over the Internet.

Inspector General: Remote Border Patrol Facilities Riddled with Security Issues

border patrol 3By Steve Neavling
ticklethewire.com

Most of the remote Border Patrol facilities along the southwest border are riddled with security issues, according to a report by the Homeland Security Inspector General.

Seven of the 11 facility, known as “Forward Operating Bases,” were inspected and found to have security lapses, such as inoperable cameras, ABC News reports. 

Some have problems with providing safe drinking water to employees, and one facility had inadequate living conditions.

“Because of their proximity to the U.S.-Mexico border, it is essential that FOBs are equipped with proper, functioning surveillance equipment,” the report stated.

The report also criticized customs officials for failing to perform required inspections and keeping documentation of repairs.

“Without regular inspections and timely maintenance and repairs, CBP cannot ensure it will continue to provide adequate security, safety and living conditions,” read the report.

West Texas Man Found Guilty of Trying to Kill Border Patrol Agent

border patrolBy Steve Neavling
ticklethewire.com

A West Texas man faces up to 20 years in prion after a jury found him guilty of trying to kill a Border Patrol agent.

Carl Wayne Wiley, of Midland, was found guilty of one count of attempting to kill a Border Patrol agent, one count of assaulting, resisting, opposing, impeding, or interfering with Border Patrol agents using a deadly or dangerous weapon, and two counts of using and discharging a firearm.

Wiley fired a gun at a Border Patrol agent after a high-speed pursuit.

Wiley faces a mandatory 10-year prison sentence.