Albert Burgess made some bad decisions.
First, he downloaded a mass of child pornography. The folks at Immigrations and Customs Enforcement (or “ICE”) were able to find him through the payment information he supplied to the child porn purveyor.
ICE asked for and received a warrant to search his house. While his house was being searched he agreed to be questioned.
The Eleventh Circuit held, today, that a person cannot be compelled to unencrypt encrypted files under the Fifth Amendment in In re Subpoena Duces Tecum issued March 25, 2011.
John Doe [FN1] is a man who knows how to keep quiet. He came to the government’s attention in the worst of ways. In March of 2010, the government found that someone was uploading child pornography to You Tube. [FN2]
Law enforcement tracked the IP addresses of the person who did the uploading. The IP addresses led them to a series of hotels. The only person common to all the hotels where things had been uploaded from was John Doe.
Brian Rogers learned the hard way that, sometimes, selling a computer has a downside. As many computer experts recommend, if you’re selling a computer you need to wipe the hard drive so that your financial information can’t be found by someone else.
Mr. Rogers, however, should not have been worried about the buyer of his computer finding his financial information. Rather, he should have worried about the purchaser finding his child pornography.
Mr. Rogers was a non-commissioned Naval Officer at the Brunswick Naval Air Station in Maine. The police worked with the Naval Criminal Investigative Service (NCIS, for those who don’t watch TV). Law enforcement obtained a search warrant.
At the end of June, the Supreme Court decided a case that will fundamentally change much about criminal procedure. The case is Melendez-Diaz v. Massachusetts, and the Court held that folks charged with a crime have the right to cross-examine the lab technicians who submit reports against criminal defendants.
This case will make the next few years of being a criminal defense lawyer very interesting.
This case says, in essence, that Crawford v. Washington, means what it says. If the government is going to introduce evidence against you at trial, it has to make sure that every single witness who is going to provide evidence against you testifies and is available to be cross-examined.
The second rule of being charged with a crime is to not talk about being charged with a crime. Do not talk about being charged with a crime with anyone who is not your lawyer.
Your communications with your lawyer are protected. Unless you’re hatching a crime or scheming up a lie with your lawyer, the government cannot find out what you talk about with your lawyer.
Conversations with other people are not protected. The government can learn what you told your mom. It can subpoena your dad. A prosecutor can make your sister talk. Your boyfriend can be brought before a grand jury.
Jurors will find your words through the voice of your family and friends to be very persuasive and credible evidence against you. Do not create such powerful evidence.
You may think your family will lie for you. Your friends may be willing to protect you. But that’s a horrible position to put people in and it may not work. The only thing worse than going over a cliff is taking your loved ones with you.
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.
Continue reading →
Happily, Roxana Saberi was released from custody in Iran. News reports are that she confessed to being a spy for the United States. To be clear, she reports that she was never tortured, but, understandably, found the experience very mentally challenging.
What’s remarkable is how easily people accept that she falsely confessed to being a spy. In almost every criminal case with a confession, the immediate knee-jerk reaction is that the person is guilty. Work can be done by a skilled lawyer to try to bring a jury to understand that, sometimes, people falsely confess, but it isn’t a given in any situation.
Neither Roxana Saberi and a person accused of a crime in the United States who has falsely confessed were tortured, and both gave their confessions under very difficult emotional and physical circumstances. There may be some differences in the stress Roxana Saberi and the U.S. suspect were facing, but I don’t think that explains why people react differently to the two.
What’s the difference between Roxana Saberi and the average criminal defendant?
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.
Continue reading →
The first rule of being charged with a crime is do not talk about being charged with a crime. Or, the alleged crime itself.
If possible to imagine, that rule became more important this week as the Supreme Court announced its decision in Montejo v. Louisiana held that the police could question a criminal defendant who had already had a lawyer appointed to represent him in a case, about that case. So, the old rule from Michigan v. Jackson that the police cannot question someone once they have a lawyer in the case no longer applies across the board.
What does this mean?
If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges.
Continue reading →
The Federal Criminal Appeals Blog