Posted On Thursday, June 5, 2014
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On Monday, the Department of Justice unsealed criminal charges in Pittsburgh, Pennsylvania and Omaha, Nebraska against an individual alleged to have engineered the theft of $100 million through computer hacking and cyber-extortion. The charges were filed against a Russian citizen, Evgeniy Bogachev, for his alleged role in administrating the Gameover Zeus botnet, a global network of computers used by cyber-thieves to steal personal and financial information, including PIN numbers, passwords, and account numbers. A botnet is a network of computers that cyber criminals have infected with a virus that allows them access to each computer and control each computer remotely. The Gameover Zeus botnet is alleged to have affected consumers and businesses, including almost $7 million from a Florida bank, $374,000 from a bank account owned by a plastics company in Pennsylvania, and $190,800 from the bank account belonging to an assisted-living facility in Pennsylvania.
Bogachev was also allegedly involved in circulating a malicious computer virus known as Cryptolocker, a program described as “ransomware” that encrypts the a user’s computer until they pay a ransom to access their files. Cryptolocker allegedly affected over 234,000 computers, approximately half of those were located inside the United States. Victims were forced to pay hundreds of dollars – often as much as $700 – to receive the key necessary to unlock their files. If the victim did not pay the ransom, it was impossible to access their files. Over $27 million in ransom payments were paid by users due to Cryptolocker.
Given the prolific nature of Mr. Bogachev, the FBI added him to its list of “Cyber’s Most Wanted.” The unsealed indictment against Bogachev filed in the Western District of Pennsylvania can be found here; the criminal complaint filed in the District of Nebraska can be found here.
In addition to the criminal charges, DOJ also filed a civil action in Pittsburgh seeking an injunction against Bogachev and his alleged co-conspirators. The case was filed under 18 U.S.C. §§1345 and 2521 which allow the United States to obtain a temporary restraining order and a permanent injunction against individuals or entities attempting to defraud financial institutions or intercept electronic communications. The civil complaint can be found here; the motion for temporary restraining order and memorandum of law in support of the motion can be found here and here, respectively.
Posted On Friday, May 30, 2014
Earlier this week, the Pennsylvania Supreme Court issued an opinion reversing its prior precedent and opening the door for the admission of expert testimony in the area of eyewitness identifications. The decision in Commonwealth v. Benjamin Walker stems from a robbery in Philadelphia, for which Walker was convicted primarily on the basis of eyewitness testimony. During trial, Walker attempted to present expert testimony regarding the unreliability of eyewitness identification, however the trial court excluded it based on unequivocal Pa. Supreme Court precedent that held such testimony was per se impermissible. The Superior Court affirmed.
The Pa. Supreme Court granted allocator and reversed, lifting its per se ban on expert testimony on eyewitness identification and remanding the case to the trial court for a Frye hearing. The Court first recognized that while eyewitness evidence may be extremely probative, it can be fallible and untrustworthy, and “there is no doubt that wrongful conviction due to erroneous eyewitness identification continues to be a pressing concern for the legal system and society.” The Court suggested that one way to assist fact finders in making more accurate and just determinations is through the admission of expert testimony. The Court then turned to the “considerable empirical research that has been conducted regarding eyewitness identification,” and which has been developed over the last 20 years (since Pennsylvania’s per se ban was established). The Court also noted that expert testimony on eyewitness identification has gained acceptance by the vast majority of state and federal courts (Pennsylvania, Kansas and Louisiana were the only states following a per se exclusionary approach). The Court also dismissed concerns that allowing such expert testimony would invade the jury’s province of making credibility determinations – finding that such testimony, in reality, educates the jury and allows them to engage in credibility determinations with full awareness of the limitations of eyewitnesses.
In its opinion, the Court attempted to set forth some limitations to the use of expert testimony in the area of eyewitness identification. First, such expert testimony should be permitted only where relevant – generally, where the Commonwealth’s case is solely or primarily dependent upon eyewitness testimony. The Court discussed relevance in the context of the case against Walker – where there was no direct evidence other than eyewitness identifications, where Walker was the subject of cross-racial identification, where the witnesses were under stress having been robbed at gunpoint, where the police did not instruct the witnesses that the suspect may or may not be included in the photo array, and where one witness equivocated during her original identification but was more confident at trial. According to the Court, the defendant must make an on-the-record detailed proffer, explaining the presence of factors which may be shown to impair the accuracy of eyewitness identification and which are beyond the common understanding of laypersons.
This decision marks a dramatic shift for the Pa. Supreme Court and will likely have a remarkable effect on the prosecution and defense of criminal cases based on eyewitness identifications. One thing we know for sure, social psychologists in Pennsylvania rejoice!
