“Federal Judge: Only Powered-Off Cell Phones Deserve Privacy Protections”

May 15, 2013

American Civil Liberties Union (ACLU) on May 15, 2013 released the following:

“By Chris Soghoian, Principal Technologist and Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 11:27am

A federal magistrate judge in New York recently ruled that cell phone location data deserves no protection under the Fourth Amendment and that accordingly, the government can engage in real-time location surveillance without a search warrant. In an opinion straight from the Twilight Zone, magistrate judge Gary Brown ruled two weeks ago that “cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy.”

The case in question involved a physician who the DEA believed had issued thousands of prescriptions for pain killers in exchange for cash. In March of this year, the DEA had obtained a warrant for his arrest, and, not knowing where he was, sought an order from magistrate judge Brown forcing the phone company to provide real-time data identifying the location of the physician’s phone.

Although the DEA agents requested a search warrant and the judge found that there was probable cause to believe that the cell phone location data would assist in the location and apprehension of an individual for whom there was already a valid arrest warrant, the judge later published a 30-page opinion further stating that he didn’t think the government needed to seek a search warrant in the first place.

Don’t Want the Government Tracking You? Turn Your Phone Off

In his puzzling opinion, the judge squarely criticizes people naive enough to expect privacy while also leaving their cell phones on when they’re not using them.

    “Given the ubiquity and celebrity of geolocation technologies, an individual has no legitimate expectation of privacy in the prospective location of a cellular telephone where that individual has failed to protect his privacy by taking the simple expedient of powering it off.

    As to control by the user, all of the known tracking technologies may be defeated by merely turning off the phone. Indeed—excluding apathy or inattention—the only reason that users leave cell phones turned on is so that the device can be located to receive calls. Conversely, individuals who do not want to be disturbed by unwanted telephone calls at a particular time or place simply turn their phones off, knowing that they cannot be located.”

The Catch-22 here is that the only people who the judge believes would have any reasonable expectation of privacy are those whose phones are turned off (and thus, not generating any location data that the government could access, even with a warrant). And it ignores the necessity of keeping your cell phone turned on for communicating with family or for work.

That consumers are dumb enough to willingly share their location using the “Girls Around Me” app (which the judge specifically calls out by name, although the wrong one), only further justifies covert, warrantless government surveillance:

    “Given the notoriety surrounding the disclosure of geolocation data to retailers purveying soap powder and blue jeans to mall shoppers, the police searching for David Pogue’s iPhone and, most alarmingly, the creators and users of the Girls Around You app, cell phone users cannot realistically entertain the notion that such information would (or should) be withheld from federal law enforcement agents searching for a fugitive.”

This is, in a word, ridiculous. There is a big difference between location information you knowingly share with a select group of friends (or, in fact, the world) and information collected about you without your knowledge or consent. Someone might be happy to share their location with a few friends by “checking in” using Foursquare while at a music festival, but not want law enforcement to access that same information. And, they would still reasonably expect that their location a week later while at an Alcoholics Anonymous meeting or abortion clinic should remain private. Sharing location data isn’t and shouldn’t be all or nothing.

We are also baffled by the judge’s willingness to tie a reasonable expectation of privacy to the use of a cell phone power button. We’re not sure if the judge has watched the Onion’s spoof news video describing a fictional “Google Opt Out Village” for people who don’t want to be tracked by the advertising company, but the logic in his opinion is consistent with the absurdity of that spoof. If you don’t want Google to track you, stop using all modern technology and move to a remote village. If you don’t want the government to covertly track your phone, turn it off and leave it off. What could be simpler, right?”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


6 suspects in black market pot-sale bust facing prison

May 4, 2012

Chicago Tribune on May 3, 2012 released the following:

“Chris Conrad
Mail Tribune, Medford, Ore.

Federal prosecutors say the six men accused of funneling thousands of pounds of excess buds grown on medical marijuana farms to the black market could face a mandatory five years in prison if they are convicted.

Assistant U.S. Attorney Doug Fong said federal statutes allow for mandatory prison sentences for marijuana offenses if more than 100 plants are involved. However, prosecutors could forgo the mandatory sentences, depending on the suspects’ criminal history and whether they cooperate with the investigation. “The absolute maximum penalty would be 40 years in prison and a $5 million fine,” Fong said.

Fong said four named in the federal indictment released Tuesday have made their initial appearance in U.S. District Court in Medford.

Brian Wayne Simmons, Clifford Ruhland, Caleb Joseph Kulp and Scott Grantski appeared in court on charges of manufacture, delivery and possession of marijuana, Fong said.

Michael Reed Peru and John Wayne Johnson could be arraigned in the near future, Fong said.

“They are not being held in jail at this time,” Fong said. The men have deep ties to the Rogue Valley and are not believed to be a flight risk prior to their trial, Fong said.

The men are believed to have grown at least 4,000 pounds of excess marijuana at medical gardens in Medford and Central Point last year, according to a federal affidavit.

The buds from these plants were in the process of drying when Drug Enforcement Administration agents raided the farms on Dark Hollow, East Gregory and Table Rock roads in October, the affidavit says.

Fong said the scope of the investigation was responsible for the nearly seven-month lag time between the raids and the indictment.

DEA investigators culled through bank records and video surveillance linked to the group as they tried to piece the case together. “It takes time to look through all this evidence and try to understand what you’re seeing,” Fong said.

Investigators believe Peru was a major player in the crimes, which include moving pounds of Southern Oregon marijuana up Interstate 5 for sale in Washington.

Peru made local headlines about eight years ago when he tried to build a golf course on private and environmentally sensitive public land at the site of the Billings Ranch in north Ashland.

When reached by phone Wednesday, Peru declined to comment on the claims made by the DEA in the indictment.

“All I can say is that I didn’t do half of what they accused me of,” Peru said. “I’m going to wait and see what happens before I make a statement.”

Peru’s son, identified as Reed Peru in the indictment, was arrested by Washington police after allegedly selling 12 pounds of marijuana to a police informant in Bremerton, near Seattle.

Prosecutors believe Mike Peru was selling buds grown in Jackson County in Washington.

Bank account records noted in the indictment showed that Mike Peru, Simmons and Ruhland deposited upwards of $40,000 in cash at a time between October 2010 and October 2011. Prosecutors believe the proceeds are from black-market marijuana.

Attempts to reach the five other men named in the indictment were not successful Wednesday.

Peru did say that Ruhland was the boyfriend of Kaelin Glazier at the time the Ruch teen was killed in 1996.

“He told me once that he never really got over that,” Peru said.

Ruhland has a previous felony marijuana conviction, according to Jackson County Circuit Court records.

Fong said the plants pulled from the suspects’ farms were “impressive” in their size and the amount of high-quality buds they produced.

“Some of these plants produced more than 10 pounds of bud,” Fong said.

Oregon Medical Marijuana Program guidelines allow a registered grower to produce six mature plants 12 inches or taller per patient, for up to four patients.

There is no limit to the number of growers per site. But all the marijuana produced must belong to the patients, who can possess only 1.5 pounds of usable buds at one time.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Student forgotten in cell for 5 days will sue DEA

May 3, 2012

CNN on May 2, 2012 released the following:

“By Alan Duke, CNN

Los Angeles (CNN) — A San Diego college student filed a legal claim Wednesday for damages suffered when he was left handcuffed and without food or water in a Drug Enforcement Administration holding cell for five days last month.

A DEA statement said Daniel Chong, 23, was “accidentally left” in a holding cell.

“Accidentally? He almost died,” said Chong’s lawyer, Gene Iredale. “It’s inexplicable.”

Chong drank his own urine to survive as his cries for help were ignored by federal agents and inmates in nearby cells, Iredale said.

The fifth-year engineering student at the University of California, San Diego, was detained on the morning of April 21, a Saturday, when DEA agents raided a house they suspected was being used to distribute MDMA, commonly known as ecstasy.

A multi-agency narcotics task force including state agents detained nine people and seized about 18,000 MDMA pills, marijuana, prescription medications, hallucinogenic mushrooms, several guns and thousands of rounds of ammunition from the house, the DEA said.

Chong admitted going to the house “to get high with his friends,” the DEA said. He later told a San Diego TV station that he knew nothing about the other drugs and guns. He was never formally arrested or charged, the DEA said.

The agents sent seven suspects to county jail and released another person, but Chong “was accidentally left in one of the cells,” the DEA said. The agency did not explain how he was forgotten for five days in the small, windowless cell.

It wasn’t until the afternoon of Wednesday, April 25, that an agent opened the steel door to Chong’s cell and found the handcuffed student, Iredale said.

“Even if they forgot him for the weekend, there is no account for how they could have left him there for three full business days,” Iredale said.

The acting special agent in charge of the DEA’s San Diego office said he was “deeply troubled” by the incident and he offered his “deepest apologies” to Chong.

“This event is not indicative of the high standards that I hold my employees to,” William Sherman said. “I have personally ordered an extensive review of our policies and procedures.”

On Wednesday, Iredale filed a damage claim with the DEA, which he said is the beginning of the process for a civil suit in federal court.

“He began hallucinating sometime around the end of the second or start of the third day,” Iredale said. “At some point, he wanted to kill himself because of pain.”

Not knowing why he was being kept in the cell without food, water or a toilet for so long confused him, Iredale said.

He lost track of time in the dark cell, his lawyer said. “At the end, he just wanted to die because he was crazy.”

Chong contorted himself to shift his handcuffed arms from behind his back to the front, Iredale said. This allowed him to use his eyeglasses to scratch a message to his family on his arm: “Sorry mom.”

He was rushed to a hospital, where he was kept in intensive care for two days, having been close to death from kidney failure, Iredale said.

The Cerritos, California, native is now recovering at home, he said.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

Federal Mail Fraud Crimes

Federal Crimes – Appeal

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To find additional federal criminal news, please read Federal Criminal Defense Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition Defense, OFAC SDN Sanctions Removal, International Criminal Court Defense, and US Seizure of Non-Resident, Foreign-Owned Assets. Because we have experience dealing with INTERPOL, our firm understands the inter-relationship that INTERPOL’s “Red Notice” brings to this equation.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.


Several Individuals Charged in Texas in Alleged Murder-for-Hire Plot and Drug Conspiracy

March 26, 2012

The Federal Bureau of Investigation (FBI) on March 26, 2012 released the following:

“LAREDO, TX—Several men have been arrested and charged in a conspiracy related to drug trafficking and/or an attempted murder-for-hire plot, U.S. Attorney Kenneth Magidson announced today. Kevin Corley, 29, and Samuel Walker, 28, both of Colorado Springs, Colorado; and Shavar Davis, 29, of Denver, were taken into custody Saturday afternoon in Laredo, while Marcus Mickle, 20, and Calvin Epps, 26, both of Hopkins, South Carolina, were arrested in South Carolina. A sixth man, Mario Corley, 40, of Saginaw, Texas, was also taken into custody in relation to this case in Charleston, South Carolina.

The criminal complaint charging Corley, Walker, and Davis was filed just a short time ago in Laredo federal court, at which time they made their initial appearances before U.S. Magistrate Judge Diana Song Quiroga. Mickle and Epps, charged in a now-unsealed indictment, are expected to make their initial appearances in Columbia, South Carolina this afternoon.

The investigation began in January 2011, when Mickle began negotiations with whom he thought were members of the Los Zetas Cartel, but were actually undercover Drug Enforcement Administration (DEA) agents, to purchase marijuana in return for stolen weapons. The criminal complaint indicates that as they began discussions about the distribution of marijuana in the Columbia, South Carolina area, Mickle and Epps allegedly told undercover agents about a friend in the military who could provide military weapons to them. The agents were later introduced to Corley, who allegedly identified himself as an active duty officer in the U.S. Army responsible for training soldiers. He offered to provide tactical training for cartel members and to purchase weapons for the cartel under his name.

The complaint states that over the next several months, Corley continued to communicate with undercover agents regarding the services he could provide the cartel as a result of the training, experience, and access to information/equipment afforded him as an active duty soldier. According to the criminal complaint, Corley allegedly mailed an Army tactics battle book to the agents, thoroughly explained military tactics, and told undercover agents he could train 40 cartel members in two weeks.

On January 7, 2012, Corley traveled to Laredo and met with undercover agents, at which time the agents inquired about his ability to perform “wet work,” allegedly understood to mean murder-for-hire; specifically, whether he could provide a team to raid a ranch where 20 kilograms of stolen cocaine were being kept by rival cartel members. Corley confirmed he would conduct the contract killing with a small team, at a minimum comprised of himself and another person whom he described as an active duty soldier with whom he had already consulted. According to the complaint, Corley ultimately agreed to $50,000 and five kilograms of cocaine to perform the contract killing and retrieve the 20 kilograms of cocaine, and he offered to refund the money if the victim survived.

Corley further offered to provide security for Mickle and Epps’ purchase of 500 pounds of marijuana for transport from Texas to South Carolina. He traveled with them to Laredo, where they loaded the marijuana into a tractor trailer and attempted to escort it back to South Carolina. However, the tractor trailer carrying the load was stopped and seized in La Salle County, Texas, on January 14, 2012. According to the complaint, Corley continued to contact undercover agents to discuss the possibility of future transactions with the agents. Corley allegedly arranged for 300 pounds of marijuana to be delivered to Mario Corley in Charleston and allegedly assisted in brokering 500 pounds of marijuana and five kilograms of cocaine for Mickle and Epps and discussed the distribution of these narcotics in South Carolina, Texas, and Colorado.

On March 5, 2012, Corley delivered two AR-15 assault rifles with scopes, an airsoft assault rifle, five allegedly stolen ballistic vests, and other miscellaneous equipment to an undercover agent in Colorado Springs in exchange for $10,000. At the meeting, Corley and the undercover agent allegedly again discussed the contract killing and the retrieval of the cocaine, which was to occur on March 24, 2012. Corley allegedly stated he had purchased a new Ka-Bar knife to carve a “Z” into the victim’s chest and was planning on buying a hatchet to dismember the body.

On March 24, 2012, Corley, Walker, and Davis traveled to Laredo and met with undercover agents, at which time they discussed the location of the intended victim, the logistics of performing the contract kill, and their respective roles. The three were arrested, during which time a fourth suspect was shot and killed. A subsequent search of the vehicle in which Corley and the other co-conspirators arrived revealed two semi-automatic rifles with scopes, one bolt-action rifle with a scope and bipod, one hatchet, one Ka-Bar knife, one bag of .223 caliber ammunition, and one box of .300 caliber ammunition.

The criminal complaint charges conspiracy to possess with the intent to distribute more than five kilograms of cocaine and carries a possible punishment of a minimum of 10 years and up to life in prison and/or a $10 million fine. Use of a firearm in furtherance of a drug trafficking or violent crime could result in up to 10 years in prison, which is served consecutively to any other prison term imposed. Those charged in the indictment for conspiracy and possession with intent to distribute more than 100 kilograms of marijuana, including Corley, Mickle, and Epps, also face five to 40 years in prison if convicted.

Corley, Walker, and Davis are set for a detention hearing on March 29, 2012 at 10:00 a.m. before Judge Song Quiroga in the Southern District of Texas. They were all remanded to federal custody pending further criminal proceedings.

The investigation leading to the charges was conducted by the DEA and the FBI with the assistance of U.S. Army Criminal Investigation Division. The case is being prosecuted by Assistant U.S. Attorneys Roberto Ramirez and Jody Young.

Criminal complaints and indictments are formal accusations of criminal conduct, not evidence. Defendants are presumed innocent unless and until convicted through due process of law.”

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Douglas McNabb – McNabb Associates, P.C.’s
Federal Criminal Defense Attorneys Videos:

Federal Crimes – Be Careful

Federal Crimes – Be Proactive

Federal Crimes – Federal Indictment

Federal Crimes – Detention Hearing

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To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas C. McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.