Wednesday, May 17, 2017

Dr. Evil needs some legal "advise" ... or is it "advice?"


When criminal-law cases imitate art,
they do not always choose its highest form.




The Secret Service pays close attention when nefarious packages arrive at accounting firms from “Dr. Evil” - especially if “Dr. Evil” threatens the release of undisclosed tax returns of a presidential candidate unless $1 million in bitcoins is exchanged.

In August 2012, the Franklin, TN office of PricewaterhouseCoopers received a padded envelope containing a flash drive and letter demanding $1 million in bitcoins to stop the release of Mitt Romney’s undisclosed tax returns. The letter provided that the flash drive had these encrypted tax files and upon receipt of the bitcoins, an encryption key would be provided. The Williamson County Republican and Democratic party offices also received letters a few day later. After that, posts were placed on Pastebin.com that described the stolen documents and referenced the mailed letters. Several of these posts were signed by “Dr. Evil” and had the movie character’s image superimposed on the lobby of PricewaterhouseCoopers’ Franklin TN office. “Dr. Evil” was also wearing a Secret Service badge.

No matter how careful a technologically savvy extortionist may be – there are always digital crumbs left behind - even when the extortionist portrays himself as “Dr. Evil” from Austin Powers: International Man of Mystery.

In Michael Mancil Brown’s case - some of those crumbs included photographs on the flash drives of Tripper and Valentine - two cats that lived next door to him. It is unfortunate that neither were called “Mr. Bigglesworth.” Other clues that assisted the Secret Service with pinpointing his identity included text strings left behind on the flash drives that provided his wife’s name and a user name frequently used by Brown; and his consistent inability to properly use ‘advice’ and ‘advise.’

The Secret Service obtained a trap-and-trace order to watch Brown’s online activity and subsequently obtained a search warrant for his home. More inculpatory evidence was obtained against Brown leading to his indictment. He was later convicted on six counts of wire fraud and six counts of extortion. He received a 48-month sentence and was ordered to pay restitution to PricewaterhouseCoopers in the amount $201,836 for the cost of its investigation. He appealed his convictions arguing that the Secret Service’s search warrant lacked probable cause and that he was prejudiced by the lower court’s decision to allow questions from the jury. 

The Sixth Circuit affirmed the convictions but vacated his sentence due to an improper obstruction of justice enhancement. Brown had given a list of names of people having access to his computer. This information was used at sentencing by the government to apply the obstruction of justice enhancement. The Court concluded that the statement actually helped the government, undermined Brown’s credibility, and bolstered the government’s case. Thus, the information provided by Brown did not significantly obstruct or impede the government’s investigation and did not justify the obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1. 

This Sixth Circuit opinion is truly an informative and groovy read, especially if you are a fan of the Austin Powers movies, or if you truly need a detailed legal analysis concerning the issues raised by Brown.



Monday, May 08, 2017

Ladies and Gentleman, we have a double header!

When the Sixth Circuit granted en banc rehearing to In Re: Ohio Execution Protocol, 17-3076, it scheduled argument in the very same order: June 14, 2017.

Now, there's our double-header, on October 11, 2017: Turner v. United States, 15-6060, the right to counsel pre-indictment case, in the morning, and United States v. Gibson, 15-6122, the "how much drugs for the puny co-defendant" case in the afternoon.

All three of these cases were granted en banc rehearing in 2017.

Sitting in a corner somewhere, singing "The Cheese Stands Alone," is United States v. Stitt, No. 14-6158, concerning whether Tennessee aggravated burglary is a violent felony. It was granted en banc rehearing on April 27, 2016. Mathis v. United States, 136 S. Ct. 2243 (2016), effectively reset the briefing schedule. That schedule ended in early September 2016. There has been a trickle of 28(j) letters since, with the Fourth Circuit's opinion in United States v. White, 836 F.3d 437 (4th Cir. 2016) (holding West Virginia's burglary statute is overbroad) in September 2016 and the Eighth Circuit's opinion in United States v. Simms, No. 16-1233, 2017 WL 1500308 (8th Cir. 2017) (holding same of Arkansas burglary). The government filed a hopeful, "hey this is when I'm not available in June and July," notice in January. There's still a chance of argument sometime in the fall, but it is probably more reasonable to contemplate a winter or spring sitting.