Wednesday, July 27, 2016

Surprise, Bitcoin is not money

A Miami judge has found that bitcoin isn’t the same as money and tossed criminal charges against a man accused of selling $1,500 worth of the virtual currency to undercover agents.
Judge Teresa Mary Pooler ruled on Monday that bitcoin isn’t money, the Miami Herald reports.
As a result, Pooler said, defendant Michell Abner Espinoza wasn’t operating an unlicensed money-services business. “The court is not an expert in economics, however, it is very clear, even to someone with limited knowledge in the area, the bitcoin has a long way to go before it the equivalent of money,” Pooler wrote.
Pooler also ruled there was insufficient evidence that Espinoza committed the crime of money laundering. He was accused of selling bitcoin to federal agents who said they were going to use the currency to buy stolen credit-card numbers.
The state statute requires those charged to intend to promote illegal activity, but the word promote “is troublingly vague,” Pooler wrote. “There is unquestionably no evidence that the defendant did anything wrong, other than sell his bitcoin to an investigator who wanted to make a case,” Pooler wrote.
The case is believed to be the first money-laundering prosecution involving bitcoin and was “closely watched in tech, financial and legal circles,” according to the Miami Herald.

Saturday, April 30, 2016

House of Representatives Votes to Provide Increased Privacy Protection to Emails

Last week, the U.S. House of Representatives unanimously passed the Email Privacy Act (H.R. 699), which would require the government to get a probable cause warrant from a judge before obtaining private communications and documents stored online with companies such as Google, Facebook, and Dropbox.

The bill provides a long overdue update to the Electronic Communications Privacy Act (ECPA), first passed in 1986. The bill also codifies the ruling in U.S. v. Warshak, where the Sixth Circuit Court of Appeals  ruled that the government must have a search warrant before it can secretly seize and search emails stored by email service providers.

Contact your Senators to pass this bill!

Sunday, April 17, 2016


Rare enough to happen once a year, this past week saw the Seventh Circuit Court of Appeals reverse the WD of Wisconsin on two separate cases. One involved a reversal of a denial of a Rule 29 motion in a wire fraud case and the other dealt with an illegal search of an apartment building facilitated by the use of drug dogs. The first case was handled by yours truly in which a three-judge panel of the 7th Circuit Court of Appeals in Chicago overturned the conviction of Madison banker Dave Weimert last week Friday, saying no crime was committed and ordered his immediate release from a federal prison facility.

“We rarely reverse a conviction for mail or wire fraud due to insufficient evidence,’’ the judges said in a 2-1 opinion released late Friday.  In this case, however, “there is no evidence that Weimert misled anyone about the material facts or about promises of future action.’’

Weimert was convicted by a jury last year on charges of federal wire fraud for using email and other communications as part of his successful 2009 sale of property in Texas on behalf of Anchor Bank for a price that was $2 million more than Anchor’s target price.  

The three-judge majority decision acknowledged that Weimert showed a “lack of candor’’ during the sale negotiations.  But if “omissions of a buyer’s or seller’s negotiating position’’ is a federal crime, it warned, many negotiations could be considered federal crimes -- an enormous expansion federal prosecutors’ power.

“Federal mail and wire fraud statues encompass a broad range of behavior. Their limits can be difficult to draw with certainty,’’ the majority opinion concluded. “But there are limits.’’

In reality, Dave’s successful negotiation generated badly needed cash for Anchor and removed a huge liability from its books -- and he did it right in the teeth of the nation’s real estate market collapse. As all terms were fully disclosed to Anchor and the buyers, including Dave’s role, it took me a long time just to figure out what Dave was even being charged with.  A full copy of the opinion can be found at 

The second case reversed a district court denial of a motion to suppress.  Taking "Hunter" a drug dog into the second floor of an apartment building was a search violating the holding of Florida v. Jardines, 133 S. Ct. 1409 (2013).  A full text of the opinion in U.S. v. Whitaker can be found at

Monday, February 8, 2016

Wisconsin Legislation Takes Steps to Combat Crime..they are hard at it again

This bill creates a penalty enhancer for a crime if the offender uses a drone to commit the crime. Under the bill, if a person uses a drone to commit a violation of the criminal code or commits a criminal offense related to a controlled substance, the person is subject to an increased penalty for the underlying crime. Under the bill, if the underlying offense is a misdemeanor but not a Class A misdemeanor, the person is subject to a maximum fine of $10,000, and a maximum term of imprisonment of one year in the county jail.
If the underlying crime is a Class A misdemeanor, the person who uses a drone to commit that crime is guilty of a felony and subject to a $10,000 fine and up to two years in prison. If the underlying crime is a felony, the maximum fine for the crime is increased by up to $5,000 and the maximum term of imprisonment for the crime is increased by up to five years.

Friday, October 9, 2015

DNA Statistics Under Review

We really really have to pay attention to forensic sciences in criminal cases.  While I have focused on arson, handwriting and presently abusive head trauma; I can sense that the protocol for matching in DNA cases along with the underlying statistics will make that arena a future battleground.  The recent issue of Atlantic magazine has brought the future to the present.  See:

The article starts by noting:

In 2001, an analyst in the DNA unit of Arizona’s state crime laboratory noticed something interesting. Two seemingly unrelated individuals—one white and one black—shared the same two markers at nine of the 13 places in the standard DNA profile. Yet that particular genetic profile should have been exceedingly rare.
According to the standard method of computing how often one might expect to encounter a particular DNA profile in the population at large—what is known as the “random match probability”—if you plucked a non-Hispanic white person at random from the population, there would be only a 1 in 754 million chance of finding that profile. For African Americans, the number was 1 in 561 billion. And yet here, in a database of less than 100,000 people, it was appearing twice—and in people of different races.

Here we go.  The future is now!

Sunday, August 9, 2015

U.S. Supreme Court Spring Term

While criminal cases did not dominate the Court's attention this past term, there were cases of note.  Johnson v. United States deals with the residual clause of the ACCA and is of interest solely to federal practitioners.  On the other hand, a progeny of Crawford will be front and center for everyone.  Professor Chemerinsky notes as follows:

In Ohio v. Clark (PDF), issued June 18, the court unanimously ruled that it did not violate the Confrontation Clause of the Sixth Amendment when statements of a 3-year-old boy were introduced against a criminal defendant without the boy testifying in court. In response to questions from his teacher, the boy had said that he had been beaten by his mother’s boyfriend, Darius Clark.
In Crawford v. Washington, decided in 2004, the court held that prosecutors cannot use testimonial statements from unavailable witnesses even if they are reliable. But the court did not attempt to define what is testimonial, and courts have struggled with the issue for more than a decade.
Ohio v. Clark offers important clarification of the meaning of “testimonial.” The court ruled that the boy’s statements to his teacher were not testimonial because they were not made with the primary purpose of creating evidence for prosecution. Justice Samuel A. Alito, writing for the court, declared: “Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. ‘Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.’”

Sunday, February 1, 2015

NACDL Releases Report on Court Failures in Enforcing Brady v. Maryland

Last November, the National Association of Criminal Defense Lawyers in conjunction with the VERITAS Initiative at Santa Clara Law School issued its groundbreaking report:  Material Indifference: How Courts Are Impeding Fair Disclosure in Criminal Cases.

The release of this report coincides with my present reading of the book: NOT GUILTY: The Unlawful Prosecution of Ted Stevens. For those of you unfamiliar with the case, the book is a fascinating read of prosecutorial misconduct in pursuing a conviction at all costs. A follow up report of the case and the behavior of the prosecution released in 2012 was described by ABC News as follows:
A court-appointed special prosecutor has determined that serious misconduct by Justice Department prosecutors tainted the federal investigation and trial of former Sen. Ted Stevens, according to a report released Thursday.
“The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens’s defense and his testimony, and seriously damaged the testimony and credibility of the government’s key witness,” the report noted.

I am convinced that many prosecutors are never trained or supervised in their ongoing obligations to provide the defense with evidence that helps the accused.  This failure leads to wrongful convictions and all the costs that go with it.

While the NACDL Report concludes "that Courts are impeding fair disclosure in criminal cases, and in so doing, encouraging prosecutors to disclose as little favorable information as possible. With Brady, the Supreme Court held that non-disclosure only violates the Constitution when the
information is material. This holding established a post-trial standard of review that
many prosecutors have adopted as the pre-trial standard governing their disclosure
obligations. Despite ethical rules that set forth a disclosure obligation far broader
than Brady, many prosecutor offices, and even some courts, have taken the same
incorrect position — prosecutors need only disclose as much as necessary to ensure
the conviction survives appeal."

The NACDL Report recommends step by step detailed changes to address the problems presented.