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Federal Criminal Defense Blog

Federal Criminal Defense and Civil Litigation in Georgia and Beyond

Riley v. California – Accessing Cellphones of Citizens Under Arrest Requires a Warrant

Posted in Searches & Seizures

Last week, the U.S. Supreme Court unanimously held, in Riley v. California, that law enforcement officers must get a warrant before searching cellular or wireless telephones seized from persons under arrest.

Riley actually involved two cases. In the first, David Riley was stopped by police for an expired tag. The officer discovered Riley’s license had expired and searched his car prior to impounding it. The search uncovered two concealed, loaded handguns in violation of California law, and a police officer seized Riley’s cellphone. Riley was charged and moved to suppress certain allegedly gang-related evidence obtained from his phone. The trial court denied the motion and Riley was convicted.

In the second case, police observed Brima Wurie allegedly make a drug sale from his car. The officers arrested Wurie and subsequently seized his cellphone. The officers used Wurie’s phone to find his apartment and obtained a warrant to search the apartment. Inside the apartment, the officers found crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash. Wurie was charged and moved to suppress the evidence obtained from the search of his apartment, arguing that it was the fruit of an unconstitutional search of his phone. The court denied the motion, and Wurie was convicted.

In an opinion authored by Chief Justice John Roberts, the Court began by noting the venerable exception to the Fourth Amendment’s requirement of a search warrant for searches of the person of someone who has been arrested. The purpose of the exception for searches “incident to arrest” is to remove any weapons which the arrestee might use to resist arrest or escape.

The Court recognized that “smart phones,” which would have been inconceivable at the time its previous cases defining the exception for searches incident to arrest were decided, have now become an integral part of daily life. Justice Roberts observed that “Cell phones… place vast quantities of personal information literally in the hands of individuals.” Such phones “are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

The Court declined to extend the exception to the warrant requirement for searches following a person’s arrest to cellphones. It found that there is typically no danger to officers from cellphones and that once a phone is seized, there is usually no longer any risk that incriminating information will be deleted from the phone. As Justice Roberts concluded, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant.”

The Court noted that its limitation on searches of cellphones following arrest did not completely rule out searches of cellphones without a warrant. It recognized that a cellphone could conceivably be searched without a warrant under the exception to the Fourth Amendment for searches under “exigent,” or urgent, circumstances.

The Riley decision has placed a much needed limit on the growing intrusiveness of law enforcement searches of an individual’s person—at a time when most individuals carry large amounts of information about their personal lives in their pockets, making even a personal search as invasive of a citizen’s privacy as a search of one’s private papers or personal computer.

“Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.” –Thomas Jefferson

Lawyers for Mass Email Hacker Andrew “Weev” Auernheimer Argue Appeal Before the Third Circuit

Posted in Appeals, Cybercrime

Sometime prior to 2011, Andrew “Weev” Auernheimer collected 114,000 email addresses belonging to iPad 3G users and AT&T subscribers, and turned the addresses over to the website Gawker. Gawker proceeded to publish some of the addresses, partially redacted, and the FBI opened an investigation. Auernheimer was charged and found guilty of violating the Computer Fraud and Abuse Act following trial in 2012. He was sentenced to 41 months’ imprisonment, and has thus far served 12 months.

As reported in the Guardian, “Weev’s” lawyers are arguing today in the U.S. Court of Appeals for the Third Circuit for his conviction to be overturned. Auernheimer’s attorneys contend that he did not commit any crime because AT&T’s security was so lax that its customers’ email addresses were effectively publicly available.

The case is being followed closely by those interested in cyber law who are worried about the effect of Auernheimer’s conviction on the willingness of persons to report security and privacy flaws. Prominent computer scientists, academics, and researchers, including the Mozilla Foundation and a former technologist for the Federal Trade Commission, have asked the Court of Appeals to overturn “Weev’s” conviction.

I have always found that mercy bears richer fruits than strict justice. — Abraham Lincoln

Glenwood, Georgia, Woman Pleads to Making $460K in False Claims to VA

Posted in Uncategorized

Per SF Gate, Loretta Smith of Glenwood, Georgia, pled guilty last Wednesday in the U.S. District Court for the Middle District of Georgia to taking more than $460,000 in Department of Veterans Affairs benefits. Smith was alleged to have made false claims to the VA for travel expenses which she never incurred and reimbursements for medical treatments which she never received.

“Wherever Law ends, Tyranny begins.” -John Locke

GA Father and Son Sentenced for Bank Fraud for Bribing Banker in Exchange for $13 Million in Loans

Posted in Bank Fraud

Last Monday, Brad Heard, Sr., of Camilla, Georgia, and Brad Heard, Jr., of Leesburg, Georgia, were sentenced in the U.S. District Court for the Middle District of Georgia to 30 and 33 months’ imprisonment respectively, and were ordered to pay $5 million in restitution. The father and son entered guilty pleas back in September to charges of bank fraud in which they admitted to paying bribes and kickbacks to a banker and his wife in Bainbridge, Georgia, in exchange for loans totalling $13,000,000. The article appears on BainbridgeGa.com.

Lawyer: “What was the first thing your husband said to you when he woke that morning?”
Witness: “He said, ‘Where am I, Cathy?’”
Lawyer: “And why did that upset you?”
Witness: “My name is Susan.”

AC/DC Drummer Phil Rudd Acquitted on Charges of Making False Statement on Pilot’s License Application

Posted in Acquittal

Phil Rudd, drummer for the Australian hard rock band AC/DC and one of the greatest drummers of all time, was acquitted yesterday in a New Zealand District Court of charges that he lied about his prior drug use to obtain a medical certificate to enable him to renew his private pilot’s license, according to the New Zealand Herald. Rudd answered “No” to the question about having any history of drug use on a medical certificate application in 2012.

The answer predictably raised some eyebrows, including with New Zealand’s Civil Aviation Authority. The article states that Rudd was discovered with 23 grams of marijuana in his home and his boat during a police raid in 2010. Rudd was discharged without a conviction on appeal. Nonetheless, Mr. Rudd, we salute you on beating this latest charge.

“No stop signs, speed limits, nobody’s going to slow me down.  I’m on a highway to hell.” – AC/DC

Iowa Pharmacist Acquitted on Charges of Fraudulently Billing Insurer for Hemophilia Medications

Posted in Acquittal, Health Care Fraud

From The Republic comes news that Michael Stein, a pharmacist and owner of Pharmacy Matters in Iowa City, Iowa, was acquitted yesterday in the U.S. District Court for the Southern District of Iowa on charges of allegedly fraudulently billing Wellmark Blue Cross and Blue Shield for drugs for hemophilia patients. The government alleged that Mr. Stein billed Wellmark for the drugs when his pharmacy actually did little or no work dispensing the drugs, but instead acted as a “pass through” entity for certain Florida drug companies shipping the drugs to patients.

Stein defended that the patients were entitled to coverage through Wellmark for the drugs, and that the prosecution failed to prove that he intended to defraud Wellmark or made any false statements. Experts at trial disagreed regarding whether the pharmacy provided services for which it could bill Wellmark.

Pharmacy Matters previously sued Wellmark in 2009 after Wellmark refused to pay millions in reimbursements for factor drugs for hemophilia patients, which case involved the same claims as in the criminal case. Just as the judge in the civil case was preparing to rule, however, the government indicted But just as an Iowa judge was preparing to rule last year, Stein was indicted criminally over the claims.

“Law applied to its extreme is the greatest injustice” — Cicero

Leader of Hindu Temple of Georgia Indicted on Federal Fraud Charges

Posted in Fraud

From 11 Alive News comes a story on Annamalai Annamalai, the former leader of the Hindu Temple of Georgia, who was indicted last week in the U.S. District Court for the Northern District of Georgia. The government alleges that Annamalai allegedly charged Temple members’ credit cards for alleged spiritual services, allegedly often charging the cards multiple times without the members’ permission. When members disputed the alleged charges, Annamalai would allegedly provide the credit card vendors with false documents to support the transactions.

Annamalai is also alleged to have spent large amounts of Temple money on houses and cars, and to have concealed assets from creditors by diverting Temple income to a separate bank account. The Temple, which is now closed, filed for bankruptcy in 2009. Annamalai is alleged to have submitted false affidavits in bankruptcy court. He was arrested in November.

“The only man who makes no mistake is the man who does nothing.” — Theodore Roosevelt

Georgia Man Pleads Guilty to Conspiring to Operate a Motor Carrier in Violation of Federal Motor Carrier Safety Administration Order

Posted in Transportation Offenses, Uncategorized

According to FleetOwner.com, last Tuesday, Corey Daniels pled guilty in the U.S. District Court for the Middle District of Georgia to charges of conspiring to violate an imminent hazard out-of-service order by the Federal Motor Carrier Safety Administration. Daniels was charged with aiding Devasko Lewis operate trucking carriers, Eagle Transport and Eagle Trans,  after Lewis had been barred from being involved in the operation of trucking companies. The Federal Motor Carrier Safety Administration had ordered Lewis,  doing business as Lewis Trucking Company,  to cease all operations after a crash in Alabama which killed seven people in 2008. Lewis formed another trucking company, DDL Transport LLC, which was also shut down under an imminent hazard order. In 2012, Lewis pled guilty to violating the orders and was sentenced to 12 months’ supervised release, but obtained U.S. Department of Transportation numbers to form Eagle Transport and Eagle Trans using the identities of Daniels and other friends. Daniels and the other conspirators helped Lewis continue operating Eagle Trans after he reported to federal prison in November 2012. Daniels and the other conspirators were indicted in May 2013.

“No man is good enough to govern another man without his consent.” – Abraham Lincoln

Two Defendants in Drug Prosecution Receive Directed Verdict for Lack of Evidence of Connection to Alleged Conspiracy; Court Sanctions AUSA for Prosecutorial Misconduct Relating to Discovery

Posted in Conspiracy

On Thursday, as notedin the Modesto Bee, the U.S. District Court for the District of Hawaii directed its verdict in favor of two defendants in the prosecution of a methamphetamine trafficking ring, finding that the government had failed to present any admissible evidence that the defendants were even slightly connected to the alleged conspiracy.  Harry Akana and Daniel Fola left the their trial as free men. A common rule relating to alleged conspiracy is that “mere association with conspirators and mere presence at the scene of a crime do not in themselves establish participation in a criminal conspiracy…” U.S. v. Brantley, 68 F.3d 1283, 1288 n.4 (11th Cir. 1995).

Four defendants remain in the trial. The defendants were charged with conspiring to distribute more than 400 pounds of methamphetamine.

In January, the judge, U.S. District Judge Leslie Kobayashi, ruled that the government had been “sloppy” and “tardy” in providing discovery material to the defense, finding that the government had withheld evidence relating to certain witnesses who had testified. The judge sanctioned an Assistant U.S. Attorney for prosecutorial misconduct and referred him to the Department of Justice’s Office of Professional Responsibility.

“Government is not reason, it is not eloquence. It is force, and like fire, it is a dangerous servant and a fearful master.” — George Washington

West Virginia Coal Operator and Son Acquitted in Check Cashing/Structuring Prosecution

Posted in Acquittal

From the website of Bailey & Glasser, comes news that, last Thursday, a jury found David A. Cline, owner of Rock N Roll Coal Company in McDowell County, West Virigina, not guilty on charges of alleged conspiracy and structuring financial transactions at the conclusion of a twelve day trial in the U.S. District Court for the Western District of Virginia. Mr. Cline’s son, Joshua Cline, was also acquitted.

The government alleged that the defendants engaged in a check cashing scheme designed to conceal the withdrawal of more than $10 million. J.D. “Dot” McReynolds, a witness for the government, sold cash to coal operators, with an added 10% fee, and provided them with fraudulent invoices to disguise the cash purchases. McReynolds withdrew the cash from various financial institutions in West Virginia and Virginia in amounts of $10,000 or less in order to avoid transaction reporting requirements, a crime called “structuring” of financial transactions. 16 co-defendants of the Clines entered guilty pleas.

“Writing laws is easy, but governing is difficult.” ― Leo Tolstoy