Posted On Wednesday, October 17, 2012
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On October 11, 2012, U.S. District Court Judge Lowell Jensen of the U.S. District Court for the Northern District of California ordered the government to turn over to him hard-drives and other digital devices in the government’s possession related the prosecution of alleged hackers. This case stems from a July 2011 indictment for fourteen defendants alleged to have participated in a coordinated attack on PayPal’s computer servers after PayPal severed ties with Wiki Leaks. The defendants are charged with engaging in a conspiracy to commit intentional damage to a protected computer, aiding and abetting intentional damage to a protected computer, or both.
Pursuant to search warrants predicated on affidavits stating that the government would retain only the files relevant to their prosecution, the government seized computer hard-drives and other digital devices containing millions of digital files. However, the government did not retain only the relevant evidence but rather elected to retain all of the seized evidence despite two orders from a U.S. magistrate judge that extraneous material be purged.
In response, Judge Jensen ordered that the government provide him with the hard-drives and digital devices seized by the government. His ruling requires the government, if it needs to further examine the evidence, to petition the court and provide notice to the defense. The court’s decision ensures that the evidence will be preserved for trial and the defense will be permitted to contest or limit the examination after the government requests access to the data.
This was reported extensively by Vanessa Blum of The Recorder at the following links:
http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp?id=1349604855238
http://www.law.com/jsp/lawtechnologynews/PubArticleFriendlyLTN.jsp?id=1349661935658
Posted On Monday, October 15, 2012
District judges do not need to consider disparities in punishment provided by analogous state and federal laws when sentencing criminal defendants, even when the federal offense uses state law to define some of its elements. However, judges must address colorable arguments regarding sentencing disparities between related federal offenses, the Third Circuit ruled this week.
The decision in United States v. Begin, — F.3d —, No. 11-3896, 2012 WL 4784362 (3d Cir. Oct. 9, 2012), helps to clarify the Third Circuit’s view of 18 U.S.C. § 3553(a)(6), a provision that requires sentencing judges to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”
Background
Michael Begin, 33, sent sexually suggestive messages to a 14-year-old girl. The girl’s mother alerted the FBI. Then an agent, posing as the girl, set up a meeting with Begin at a local restaurant. Begin showed up at the restaurant with a knife, handcuffs and a condom. He was arrested and later indicted on two charges: using the internet and a cell phone to persuade a minor to engage in illegal sexual activity (in this case, statutory rape), in violation of 18 U.S.C. § 2422(b); and using a cell phone to send an obscene image to a minor, in violation of 18 U.S.C. § 1470. He pleaded guilty to both charges.
Under the Federal Sentencing Guidelines, Begin’s imprisonment range was 168 to 210 months. Begin argued for a sentence of 120 months, the statutory minimum for a violation of § 2422(b). He pointed out that the Pennsylvania statutory rape law he would have violated if he had sex with the girl, 18 Pa. Cons. Stat. § 3122.1, at the time carried a maximum penalty of 10 years imprisonment (the maximum penalty is now 20 years). He also noted that the federal statutory rape law, 18 U.S.C. § 2243(a), which applies in the maritime and territorial jurisdiction of the United States, carries a maximum 15 year sentence. Begin contended that a sentence of more than 10 years would lead to an unwarranted disparity under § 3553(a)(6) because he would receive a greater punishment for attempting to induce an offense than for actually committing it.
The district judge sentenced Begin to 240 months and did not address Begin’s arguments regarding state-federal and federal-federal disparities.
The Third Court’s Decision
On appeal, the Third Circuit concluded that Begin’s state-federal argument lacked “colorable legal merit” and therefore required no response from the district judge. Citing with approval cases from the Fourth, Seventh, Eighth, Tenth and Eleventh Circuits, the court wrote that § 3553(a)(6) was meant to address disparities only among federal defendants. The court rejected Begin’s argument that § 2422(b)’s incorporation of state law in defining its elements distinguished his case. Given the absence of authority in his favor, the Third Circuit declined Begin’s invitation to follow him “down a rabbit hole.”
The court found Begin’s federal-federal argument more compelling because of the similarity between § 2422(b) and § 2243(a). The court wrote, Begin’s argument that the judge should consider disparities between sentences under the two statutes was at least colorable. The court cautioned that “colorable legal merit is distinct from actual merit” and left open the possibility that the judge would reject the argument on remand. Nonetheless, because the judge had failed to even consider the federal-federal argument, the court vacated Begin’s sentence and remanded for further proceedings.
Bottom Line
State and federal law often provide wildly divergent penalties for similar conduct, but those disparities do not give rise to colorable arguments regarding disparate punishment under § 3553(a)(6). On the other hand, disparities between federal statutes, even those aimed at somewhat different evils, may provide fertile ground for sentencing arguments.
