“Feds Targeted Snowden’s Email Provider the Day After NSA Whistleblower Went Public”

October 3, 2013

Wired on September 27, 2013 released the following:

BY KEVIN POULSEN

“When on June 9 Edward Snowden stood up in Hong Kong and revealed himself to the world as an NSA whistleblower, the Justice Department wasted little time in targeting his email provider. A new appeals court filing today shows the government served a court order on Texas-based Lavabit the very next day, demanding metadata on an unnamed customer that the timing and circumstances suggest was Snowden.

The June 10 records demand was issued under 18 USC 2703(d), a 1994 amendment to the Stored Communications Act that allows law enforcement access to non-content internet records without demonstrating the “probable cause” needed for a search warrant. That would include email “To” and “From” lines, and the IP addresses used to access the account, but would not include the content of the email.

That order was followed on June 28 with a so-called “pen register order”, which provides the same information prospectively — recording the metadata for every new email sent or received.

It’s not clear what information, if any, Lavabit produced at that stage of the investigation. But on July 9 the court evidently issued an “Order to Show Cause,” which in a records case is usually the result of the government asking the court to enforce a demand that hasn’t been complied with to the government’s satisfaction.

The new information is revealed in a government filing in Lavabit’s appeal in the case. Lavabit attorney Jesse Binnall on Tuesday asked the 4th U.S. Circuit Court of Appeals to unseal some information in the case so that public interest groups could learn enough to potentially file amicus briefs on the core legal issues. The government today filed its opposition to the unsealing motion — under seal, naturally — along with a public timeline of previous orders keeping the case secret.

“The entire record in the district court, including all applications, subpoenas, motions, warrants, and orders, remains under seal,” prosecutors wrote in the public filing.

The timeline shows that the government’s records demands to Lavabit in the case began on June 10, almost two months before owner Ladar Levison shut down the service on August 8 with an oblique message saying he’d been left with little choice in the matter.

“I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly 10 years of hard work by shutting down Lavabit,” Levison wrote at the time. “After significant soul searching, I have decided to suspend operations.”

Levison and his lawyer are both bound by a gag order preventing them from discussing the details of the case, or identifying who the government’s target is.

The June 29 pen register order may well have been the issue. A standard email provider can easily funnel email headers to the government in response to such a request. But Lavabit offered paying customers a secure email service that stores incoming messages encrypted to a key known only to that user. Lavabit itself did not have access.

Levison could have complied with a prospective metadata demand in a number of ways: by providing the government with Lavabit’s private SSL certificate — allowing its users to be wiretapped; by modifying the software to store a user’s private encryption key at the next login; or by recording the email metadata before it’s encrypted. But Levison may have balked at actively circumventing the privacy system he built for users.

After shutting down the site, Levison appealed on August 29. His opening brief in his appeal is due October 3.

“He’s optimistic that we use this opportunity to possibly get some good law,” attorney Binnall told WIRED earlier this month. “My client is somebody’s who’s very concerned about privacy rights and protecting the United States Constitution from unlawful searches and seizures and protecting the First Amendment.””

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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

————————————————————–

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.


“U.S. Postal Service Logging All Mail for Law Enforcement”

July 3, 2013

The New York Times on July 3, 2013 released the following:

“By RON NIXON

WASHINGTON — Leslie James Pickering noticed something odd in his mail last September: A handwritten card, apparently delivered by mistake, with instructions for postal workers to pay special attention to the letters and packages sent to his home.

“Show all mail to supv” — supervisor — “for copying prior to going out on the street,” read the card. It included Mr. Pickering’s name, address and the type of mail that needed to be monitored. The word “confidential” was highlighted in green.

“It was a bit of a shock to see it,” said Mr. Pickering, who owns a small bookstore in Buffalo. More than a decade ago, he was a spokesman for the Earth Liberation Front, a radical environmental group labeled eco-terrorists by the Federal Bureau of Investigation. Postal officials subsequently confirmed they were indeed tracking Mr. Pickering’s mail but told him nothing else.

As the world focuses on the high-tech spying of the National Security Agency, the misplaced card offers a rare glimpse inside the seemingly low-tech but prevalent snooping of the United States Postal Service.

Mr. Pickering was targeted by a longtime surveillance system called mail covers, but that is only a forerunner of a vastly more expansive effort, the Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images.

Together, the two programs show that snail mail is subject to the same kind of scrutiny that the National Security Agency has given to telephone calls and e-mail.

The mail covers program, used to monitor Mr. Pickering, is more than a century old but is still considered a powerful tool. At the request of law enforcement officials, postal workers record information from the outside of letters and parcels before they are delivered. (Actually opening the mail requires a warrant.) The information is sent to whatever law enforcement agency asked for it. Tens of thousands of pieces of mail each year undergo this scrutiny.

The Mail Isolation Control and Tracking program was created after the anthrax attacks in late 2001 that killed five people, including two postal workers. Highly secret, it seeped into public view last month when the F.B.I. cited it in its investigation of ricin-laced letters sent to President Obama and Mayor Michael R. Bloomberg. It enables the Postal Service to retroactively track mail correspondence at the request of law enforcement. No one disputes that it is sweeping.

“In the past, mail covers were used when you had a reason to suspect someone of a crime,” said Mark D. Rasch, the former director of the Justice Department’s computer crime unit, who worked on several fraud cases using mail covers. “Now it seems to be ‘Let’s record everyone’s mail so in the future we might go back and see who you were communicating with.’ Essentially you’ve added mail covers on millions of Americans.”

Bruce Schneier, a computer security expert and an author, said whether it was a postal worker taking down information or a computer taking images, the program was still an invasion of privacy.

“Basically they are doing the same thing as the other programs, collecting the information on the outside of your mail, the metadata, if you will, of names, addresses, return addresses and postmark locations, which gives the government a pretty good map of your contacts, even if they aren’t reading the contents,” he said.

But law enforcement officials said mail covers and the automatic mail tracking program are invaluable, even in an era of smartphones and e-mail.

In a criminal complaint filed June 7 in Federal District Court in Eastern Texas, the F.B.I. said a postal investigator tracing the ricin letters was able to narrow the search to Shannon Guess Richardson, an actress in New Boston, Tex., by examining information from the front and back images of 60 pieces of mail scanned immediately before and after the tainted letters sent to Mr. Obama and Mr. Bloomberg showing return addresses near her home. Ms. Richardson had originally accused her husband of mailing the letters, but investigators determined that he was at work during the time they were mailed.

In 2007, the F.B.I., the Internal Revenue Service and the local police in Charlotte, N.C., used information gleaned from the mail cover program to arrest Sallie Wamsley-Saxon and her husband, Donald, charging both with running a prostitution ring that took in $3 million over six years. Prosecutors said it was one of the largest and most successful such operations in the country. Investigators also used mail covers to help track banking activity and other businesses the couple operated under different names.

Other agencies, including the Drug Enforcement Administration and the Department of Health and Human Services, have used mail covers to track drug smugglers and Medicare fraud.

“It’s a treasure trove of information,” said James J. Wedick, a former F.B.I. agent who spent 34 years at the agency and who said he used mail covers in a number of investigations, including one that led to the prosecution of several elected officials in California on corruption charges. “Looking at just the outside of letters and other mail, I can see who you bank with, who you communicate with — all kinds of useful information that gives investigators leads that they can then follow up on with a subpoena.”

But, he said: “It can be easily abused because it’s so easy to use and you don’t have to go through a judge to get the information. You just fill out a form.”

For mail cover requests, law enforcement agencies simply submit a letter to the Postal Service, which can grant or deny a request without judicial review. Law enforcement officials say the Postal Service rarely denies a request. In other government surveillance program, such as wiretaps, a federal judge must sign off on the requests.

The mail cover surveillance requests are granted for about 30 days, and can be extended for up to 120 days. There are two kinds of mail covers: those related to criminal activity and those requested to protect national security. The criminal activity requests average 15,000 to 20,000 per year, said law enforcement officials who spoke on the condition of anonymity because they are prohibited by law from discussing the requests. The number of requests for antiterrorism mail covers has not been made public.

Law enforcement officials need warrants to open the mail, although President George W. Bush asserted in a signing statement in 2007 that the federal government had the authority to open mail without warrants in emergencies or foreign intelligence cases.

Court challenges to mail covers have generally failed because judges have ruled that there is no reasonable expectation of privacy for information contained on the outside of a letter. Officials in both the George W. Bush and Obama administrations, in fact, have used the mail-cover court rulings to justify the N.S.A.’s surveillance programs, saying the electronic monitoring amounts to the same thing as a mail cover. Congress briefly conducted hearings on mail cover programs in 1976, but has not revisited the issue.

The program has led to sporadic reports of abuse. In May 2012, Mary Rose Wilcox, a Maricopa County supervisor, was awarded nearly $1 million by a federal judge after winning a lawsuit against Sheriff Joe Arpaio, known for his immigration raids in Arizona, who, among other things, obtained mail covers from the Postal Service to track her mail. The judge called the investigation into Ms. Wilcox politically motivated because she had been a frequent critic of Mr. Arpaio, objecting to what she considered the targeting of Hispanics in his immigration sweeps. The case is being appealed.

In the mid-1970s the Church Committee, a Senate panel that documented C.I.A. abuses, faulted a program created in the 1950s in New York that used mail covers to trace and sometimes open mail going to the Soviet Union from the United States.

A suit brought in 1973 by a high school student in New Jersey, whose letter to the Socialist Workers Party was traced by the F.B.I. as part of an investigation into the group, led to a rebuke from a federal judge.

Postal officials refused to discuss either mail covers or the Mail Isolation Control and Tracking program.

Mr. Pickering says he suspects that the F.B.I. requested the mail cover to monitor his mail because a former associate said the bureau had called with questions about him. Last month, he filed a lawsuit against the Postal Service, the F.B.I. and other agencies, saying they were improperly withholding information.

A spokeswoman for the F.B.I. in Buffalo declined to comment.

Mr. Pickering said that although he was arrested two dozen times for acts of civil disobedience and convicted of a handful of misdemeanors, he was never involved in the arson attacks the Earth Liberation Front carried out. He said he became tired of focusing only on environmental activism and moved back to Buffalo to finish college, open his bookstore, Burning Books, and start a family.

“I’m no terrorist,” he said. “I’m an activist.”

Mr. Pickering has written books sympathetic to the liberation front, but he said his political views and past association should not make him the target of a federal investigation. “I’m just a guy who runs a bookstore and has a wife and a kid,” 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

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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.


“Outside Box, Federal Judges Offer Addicts a Free Path”

May 30, 2013

The New York Times on March 1, 2013 released the following:

By MOSI SECRET

“Federal judges around the country are teaming up with prosecutors to create special treatment programs for drug-addicted defendants who would otherwise face significant prison time, an effort intended to sidestep drug laws widely seen as inflexible and overly punitive.

The Justice Department has tentatively embraced the new approach, allowing United States attorneys to reduce or even dismiss charges in some drug cases.

The effort follows decades of success for “drug courts” at the state level, which legal experts have long cited as a less expensive and more effective alternative to prison for dealing with many low-level repeat offenders.

But it is striking that the model is spreading at the federal level, where judges have increasingly pushed back against rules that restrict their ability to make their own determination of appropriate sentences.

So far, federal judges have instituted programs in California, Connecticut, Illinois, New Hampshire, New York, South Carolina, Virginia and Washington. About 400 defendants have been involved nationwide.

In Federal District Court in Brooklyn on Thursday, Judge John Gleeson issued an opinion praising the new approach as a way to address swelling prison costs and disproportionate sentences for drug trafficking.

“Presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the sentencing guidelines,” Judge Gleeson wrote.

The opinion came a year after Judge Gleeson, with the federal agency known as Pretrial Services, started a program that made achieving sobriety an incentive for drug-addicted defendants to avoid prison. The program had its first graduate this year: Emily Leitch, a Brooklyn woman with a long history of substance abuse who was arrested entering the country at Kennedy International Airport with over 13 kilograms of cocaine, about 30 pounds, in her luggage.

“I want to thank the federal government for giving me a chance,” Ms. Leitch said. “I always wanted to stand up as a sober person.”

The new approach is being prompted in part by the Obama administration, which previously supported legislation that scaled back sentences for crimes involving crack cocaine. The Justice Department has supported additional changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders and changed its own policies to make those options more available.

“We recognize that imprisonment alone is not a complete strategy for reducing crime,” James M. Cole, the deputy attorney general, said in a statement. “Drug courts, re-entry courts and other related programs along with enforcement are all part of the solution.”

For nearly 30 years, the United States Sentencing Commission has established guidelines for sentencing, a role it was given in 1984 after studies found that federal judges were giving defendants widely varying sentences for similar crimes. The commission’s recommendations are approved by Congress, causing judges to bristle at what they consider interference with their judicial independence.

“When you impose a sentence that you believe is unjust, it is a very difficult thing to do,” Stefan R. Underhill, a federal judge in Connecticut, said in an interview. “It feels wrong.”

The development of drug courts may meet resistance from some Republicans in Congress.

“It is important that courts give deference to Congressional authority over sentencing,” Representative F. James Sensenbrenner Jr., Republican of Wisconsin, a member and former chairman of the Judiciary Committee, said in a statement. He said sentencing should not depend “on what judge happens to decide the case or what judicial circuit the defendant happens to be in.”

At the state level, pretrial drug courts have benefited from bipartisan support, with liberals supporting the programs as more focused on rehabilitation, and conservatives supporting them as a way to cut spending.

Under the model being used in state and federal courts, defendants must accept responsibility for their crimes and agree to receive drug treatment and other social services and attend regular meetings with judges who monitor their progress. In return for successful participation, they receive a reduced sentence or no jail time at all. If they fail, they are sent to prison.

The drug court option is not available to those facing more serious charges, like people accused of being high-level dealers or traffickers, or accused of a violent crime. (These programs differ from re-entry drug courts, which federal judges have long used to help offenders integrate into society after prison.)

In interviews, the federal judges who run the other programs pointed to a mix of reasons for their involvement.

Judge Ricardo S. Martinez ran a state drug court in Seattle before he was appointed to the federal bench. “People that have a serious addiction, you can put them in custody, but the minute you put them back in the community, they go back to the same thing and lo and behold you see them again,” Judge Martinez said in an interview.

Some of the most pointed criticism of the status quo has come from Judge Gleeson, a former federal prosecutor. The drug court he helped set up is open to defendants who committed a range of nonviolent crimes, like fraud and selling prescription pills, and whose addictions fueled their actions.

In a 35-page opinion he issued this week, he criticized the Justice Department for charging defendants with drug offenses that carry mandatory minimum sentences, urged the Sentencing Commission to reduce the guideline range for many drug offenses and called for more programs that divert defendants from prison time.

The opinion chronicled the case of three graduates of the drug court, including Ms. Leitch, 29. The daughter of two addicted parents, she began smoking marijuana daily and later snorting cocaine at a young age, stealing to pay for her drug habit.

After a visit with her children to Guyana, where her father lives, she was paid over $30,000 to transport drugs back to the United States. Customs agents at Kennedy found the cocaine and charged her with importing and possessing the drug, which carried a three-year sentence under federal guidelines.

Though she showed up high at a court hearing, causing her to be jailed for a time, Magistrate Judge Steven M. Gold offered her a slot a year ago in the district’s new drug court. She later took parenting courses, earned a general equivalency diploma and got a commercial bus driver’s license — with government subsidies for some of those efforts. She now drives a bus in Nassau County.

Loretta E. Lynch, the United States attorney in Brooklyn, said she backed the program because drug courts elsewhere had lowered recidivism rates. “Our overall strategy of law enforcement and crime prevention isn’t just incarceration,” Ms. Lynch said.

At a sentencing hearing for Ms. Leitch last month, a prosecutor vacated her guilty plea and agreed to dismiss the charges if she did not use drugs or get arrested for 18 months. After the hearing, Judge Gleeson offered some encouraging words for the defendant, and then a hug.

“I don’t know them as just the judge,” Ms. Leitch said later. “People see judges as the bad guy. They get deeper. They get to know who you are.””

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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

————————————————————–

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.


Federal District Court Judge: How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison

October 26, 2012

The Nation on October 24, 2012 released the following:

Judge Mark W. Bennett

“Reuters/Joshua Lott

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts. Methamphetamine is their drug of choice. Crack cocaine is a distant second. Drug kingpins? Oh yes, I’ve sentenced them, too. But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa—a bucolic area home to just one city with a population above 100,000—is a sleepy place with few federal crimes. You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge. Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco—combined. While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African-Americans. Meth defendants are generally lower-income whites. More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence. These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights. Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine. They are the low-hanging fruit of the drug war. Other than their crippling meth addiction, they are very much like the folks I grew up with. Virtually all are charged with federal drug trafficking conspiracies—which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth. They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges. All of them pled guilty. Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions. Most were unemployed or underemployed. Several were single mothers. They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment. Yet all of them faced mandatory minimum sentences of sixty or 120 months. One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison. It is deeply inspiring to see the positive changes most have made. Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around. They are shocked—and glad—to see me, and it’s important to them that people outside prison care about their progress. For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do. I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless. They destroy families and mightily fuel the cycle of poverty and addiction. In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

For years I have debriefed jurors after their verdicts. Northwest Iowa is one of the most conservative regions in the country, and these are people who, for the most part, think judges are too soft on crime. Yet, for all the times I’ve asked jurors after a drug conviction what they think a fair sentence would be, never has one given a figure even close to the mandatory minimum. It is always far lower. Like people who dislike Congress but like their Congress member, these jurors think the criminal justice system coddles criminals in the abstract—but when confronted by a real live defendant, even a “drug trafficker,” they never find a mandatory minimum sentence to be a just sentence.

Many people across the political spectrum have spoken out against the insanity of mandatory minimums. These include our past three presidents, as well as Supreme Court Justices William Rehnquist, whom nobody could dismiss as “soft on crime,” and Anthony Kennedy, who told the American Bar Association in 2003, “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences.” In 2005, four former attorneys general, a former FBI director and dozens of former federal prosecutors, judges and Justice Department officials filed an amicus brief in the Supreme Court opposing the use of mandatory minimums in a case involving a marijuana defendant facing a fifty-five-year sentence. In 2008, The Christian Science Monitor reported that 60 percent of Americans opposed mandatory minimums for nonviolent offenders. And in a 2010 survey of federal district court judges, 62 percent said mandatory minimums were too harsh.

Federal judges have a longstanding culture of not speaking out on issues of public concern. I am breaking with this tradition not because I am eager to but because the daily grist of what I do compels me to. In 1999, Judge Robert Pratt of the Southern District of Iowa, a courageous jurist whose brilliant opinion in Gall v. United States led to one of the most important Supreme Court sentencing opinions in my professional life, wrote a guest editorial in The Des Moines Register criticizing federal sentencing guidelines and mandatory minimums. He ended by asking, “If we don’t speak up, who will?” I hope more of my colleagues will speak up, regardless of their position on the fairness of mandatory minimum sentences for nonviolent drug offenders. This is an issue of grave national consequence. Might there be a problem when the United States of America incarcerates a higher percentage of its population than any nation in the world?”

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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

————————————————————–

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.


Top court to hear arguments over government spying

October 26, 2012

Reuters on October 26, 2012 released the following:

“By Terry Baynes

(Reuters) – A debate over how freely the U.S. government can eavesdrop on international communications reaches a climax on Monday in the country’s highest court.

At issue is a law passed by Congress in 2008 allowing the government to monitor the overseas communications of individuals without obtaining a warrant for each target.

The government has said it needs flexible surveillance power to help prevent strikes by foreign militants such as the attacks of September 11, 2001.

But a group of attorneys, journalists and human rights organizations has challenged the law, saying thousands or even millions of innocent Americans are likely being monitored merely because they are communicating with people overseas.

In oral arguments on Monday, the U.S. Supreme Court will consider whether the challengers have the right to bring a suit against the law.

The government argues that, because the surveillance is secret, the challengers cannot prove they have been harmed by the law and therefore do not have standing to challenge it.

The challengers argue that they are harmed because they must travel to meet their clients and sources in person, to avoid wiretaps. Human Rights Watch, one of the challengers, has had to pay for more plane tickets, translators, drivers and guides because of the law, the group’s general counsel, Dinah PoKempner, said.

Although the question of standing is a technical one, a victory for the government could end the challenge to the law.

If the government prevails at this stage, it will have shielded its surveillance laws from review by the courts, said Jameel Jaffer, a lawyer who represents the individuals and organizations challenging the law.

It’s unclear how the high court will rule. Since the September 11 attacks, the court has shown a reluctance to intervene in the executive branch’s national security and intelligence-gathering procedures. The fact that the court took the case means that at least four justices saw problems with a lower court ruling allowing the case to proceed.

Congress passed the original Foreign Intelligence Surveillance Act in 1978 to clamp down on government spying, which had escalated in the 1960s and 1970s. The law required the government to submit a surveillance application to a special court for each overseas individual it was targeting.

After the attacks of September 11, 2001, President George W. Bush authorized the National Security Agency’s use of warrantless wiretaps in the hunt for people with ties to al Qaeda and other militant groups. The Bush administration ended that program in 2007, but Congress legalized parts of it in an overhaul of the Foreign Intelligence Surveillance Act in 2008.

Under the new law, the government no longer has to provide the court with specific names, phone numbers or email addresses of people to be tapped. Instead, it can apply for permission to conduct mass surveillance merely by stating that it plans to monitor non-U.S. persons overseas to gather foreign intelligence.

The challengers filed a lawsuit saying the new procedures violate the U.S. Constitution’s Fourth Amendment protection against unreasonable search and seizures by allowing the government to sweep up communications with little judicial oversight.

One of the challengers, David Nevin, who is a lawyer for the accused September 11 mastermind Khalid Sheikh Mohammed, said the 2008 law puts lawyers on the “horns of a dilemma.”

Ethics rules prohibit lawyers from holding sensitive conversations with clients when there’s a chance the government is eavesdropping, he said. As a result, Nevin limits what he says by phone and email and instead travels to Guantanamo Bay, Cuba, to talk to his client. But those constraints can make it harder to provide the effective legal assistance that ethical rules also require.

“We’ve gone back to the Stone Age,” said Tina Foster, a human rights lawyer who joined a brief in support of the challengers. “It’s like eliminating the benefit of telecommunication and access to information.”

In 2009 a federal district court in New York found that the challengers failed to prove they had been harmed by the law. But in 2011 the 2nd U.S. Circuit Court of Appeals disagreed, allowing the suit to proceed based on the plaintiffs’ fear of surveillance and the cost of trying to avoid it.

The government then petitioned the Supreme Court, arguing that the challengers did not have standing to bring their suit. To have standing, the challengers had to show that their injuries were “actual or imminent, not conjectural or hypothetical,” the government said in its petition.

Six former U.S. attorneys general have submitted a brief supporting the government, warning that allowing the suit to proceed would open the floodgates to litigation that would risk exposing state secrets.

The Justice Department declined to comment before Monday’s oral arguments.

In separate litigation, civil liberties groups tried to hold phone companies including AT&T Inc, Sprint Nextel Corp and Verizon Communications Inc accountable for helping the government eavesdrop on private conversations. A federal appeals court in December found the companies immune to the suits, and the Supreme Court this month declined to review that case.

The case before the U.S. Supreme Court is Clapper et al v. Amnesty International et al, No. 11-1025.”

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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.


DOJ Recommends 15 Months for Exec in Bribery Case

September 11, 2012

The Wall Street Journal on September 10, 2012 released the following:

“By C.M. Matthews

The Justice Department said a former executive of an industrial valve manufacturer who admitted to authorizing bribes in China should be sentenced to 15 months in prison.

Federal prosecutors recommended the sentence for Paul Cosgrove, former director of international sales for Control Components Inc., in court papers filed in federal district court in Santa Ana, Calif. last week. But, the prosecutors also said they wouldn’t oppose 15 months of home confinement because of Cosgrove’s health problems.

Cosgrove pleaded guilty in May to violating the Foreign Corrupt Practices Act, which prohibits improper payments to foreign officials to win business. He was charged along with five other former Control Components executives in April 2009 in connection with an alleged bribery scheme. Two other Control Components executives were also charged in a related matter in 2009.

According to court documents, Cosgrove approved improper payments in connection with a sprawling, global bribery scheme to win contracts for Rancho Santa Margarita, Calif.-based Control Components. So far, five other former CCI executives have pleaded guilty to charges stemming from the alleged scheme. Control Components pleaded guilty in July 2009 to violating the Travel Act, which prohibits commercial bribery, and the FCPA. The company paid an $18.2 million criminal penalty and agreed to implement rigorous internal controls.

Prosecutors said last week that they could not dispute a probation office report that said Cosgrove has “serious health issues.” Cosgrove had quadruple bypass surgery in 2010, according to court documents, and suffers from chronic health problems including heart disease and diabetes. The report recommended three years of probation and six months of home confinement for Cosgrove.

But prosecutors said that was an inadequate sentence because, “the sentencing end of deterrence in FCPA cases is important as the statute is intended to combat a culture of corruption that could otherwise undercut the business development and good governance of nations around the world.” While Cosgrove’s conduct warranted jail time, they said they would not object to home confinement, so long as it was for at least 15 months.

“To the extent the Court concludes that these factors outweigh the aggravating factors which would otherwise warrant a sentence of imprisonment within the guidelines range, any period of home confinement should be as long as the otherwise-applicable term of incarceration,” they wrote. “To state it differently, the government sees nothing in the Probation Officer’s analysis which would warrant only six rather than 15 months of home detention.”

The prosecutors also said Cosgrove should pay up to $20,000 in fines.

Cosgrove’s lawyers have filed their own sentencing memorandum under seal. They didn’t immediately respond to a request for comment.

Cosgrove’s sentencing is scheduled for Sept. 13”

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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.


Trial Judge to Appeals Court: Review Me

July 17, 2012

The New York Times on July 16, 2012 released the following:

“Earlier this year, an opinion for the Supreme Court by Justice Anthony Kennedy noted a stunning and often overlooked reality of the American legal process: a vast majority of criminal cases — 97 percent of federal cases, 94 percent of state cases — are resolved by guilty pleas. “Criminal justice today,” he observed, “is for the most part a system of pleas, not a system of trials.”

In this context, the recent rejection in a federal district court by Judge John Kane of a plea bargain deal between a defendant and federal prosecutors is truly startling. Judge Kane rejected the deal in part because the defendant waived his right to appeal to a higher court.

The judge insisted the matter go forward to trial so that the United States Court of Appeals for the Tenth Circuit could review it: “Indiscriminate acceptance of appellate waivers,” he said, “undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions.” The case is scheduled for trial next month in Denver.

Waivers are a common but largely hidden element of plea bargains — which, in many federal cases, aren’t really bargains because the power of prosecutors is often so much greater than that of the defendants or their lawyers. The process is closer to coercion. Prosecutors regularly “overcharge” defendants with a more serious crime than what actually occurred. The defendants must then choose between the risk of being found guilty at trial and getting a longer sentence than the alleged crime would warrant or a guilty plea in exchange for a lighter sentence. All but a tiny minority of defendants take the plea as the price of avoiding the crapshoot of a trial.

In a sample of almost 1,000 federal cases around the country, agreements included waivers about two-thirds of the time and more often in some places. Every federal appeals court has ruled that in general waivers are enforceable as part of the efficient administration of justice.

Some standard parts of waivers are outrageous, keeping defendants from appealing even if they become convinced that they received inadequate counsel to accept a defective plea agreement where the sentence was not lighter or where the prosecutor wrongly withheld evidence. Any defense lawyer or prosecutor who asks a defendant to sign a waiver ruling out appeals on those grounds is protecting himself.

An important element of justice is missing even when the defendant and the government believe a plea bargain is fair and when an appeal waiver is narrow so the defendant can appeal about certain specified issues. Congress gave appeals courts the power to review federal sentences to ensure the government applies the law reasonably and consistently. Without an appeals court’s policing, the odds go up that prosecutors will do neither. Our system of pleas then looks more like a system of railroading.”

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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 – 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.