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Paul F. Enzinna Archives

In June 2011, six cattle wandered onto the North Dakota property of Rodney Brossart. Brossart refused to return them to their owner until he had paid Brossart for feed consumed by the cows. North Dakota law permits such "distraint," but, noting that "there have been problems with [him] in the past," the Nelson County Sheriff's Office decided to arrest Brossart. During an armed standoff, the Sheriff took up the offer by the Department of Homeland Security to lend the Sheriff an unmanned Predator drone. When the drone confirmed that Brossart and his family had not left the ranch, and were unarmed, Sheriff's deputies arrested Brossart and four members of his family. The Brossarts moved to dismiss the charges, arguing, inter alia, that use of the drone constituted "outrageous governmental conduct," "unlawful surveillance," and an "illegal search and seizure." North Dakota District Judge Joel Medd denied the motion, writing that "there was no improper use of an unmanned aerial vehicle" and that the drone "appears to have had no bearing on these charges being contested here."

The Brossart case is the first in which a court has approved a domestic law enforcement agency's use of a drone to investigate or arrest a suspect. But it certainly won't be the last. In February of this year, members of Congress backed by the drone industry inserted language in the the FAA reauthorization bill requiring the agency to simplify and accelerate the process for allowing domestic agencies to operate drones. At the same time, the Department of Homeland Security has launched a program to "facilitate and accelerate the adoption" of drones by domestic agencies. The FAA has already authorized dozens of domestic agencies to operate drones, including the police departments of Houston, North Little Rock and Gadsden, Alabama. Other states and localities are lining up for FAA authorization and DHS grant funds. There has even been talk by some local police of adding weapons to domestic drones.

There is no question that drones will make it easier for domestic law enforcement agencies to investigate crimes and arrest suspects. This may make us safer, although the lack of sophisticated onboard collision avoidance systems and the prospect of local sheriffs's deputies piloting drones outfitted with rubber bullets and tear gas engenders some doubt on this point. And the use of domestic drones will certainly provide jobs and profits for drone manufacturers. But as even DHS has recognized, the use of domestic drones raises enormous privacy and Constitutional issues. DHS says "we will not be watching backyards," but as domestic drones proliferate, it will become harder and harder to control what all of the agencies approved to use them are doing with them. The Fourth Amendment guarantees Americans the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." One wonders what its drafters would say about the use of drones to arrest a family in a dispute over trespassing cows.

Last week, George Will wrote about Marine biologist Nancy Black, who has been under criminal investigation for years in connection with a 2005 incident in which a crew member on her whale-watching ship whistled at a humpback whale. (Yes, you read that right.) The Wall Street Journal previously reported that Ms. Black was not charged with interfering with the whale, but with making a false statement to government investigators when she edited a videotape of the incident in order to highlight the whistling. Ms. Black is also under investigation for illegally "feeding" killer whales, when she cut a hole in a strip of blubber (which the orcas had torn off a gray whale they had killed, and on which they were already feeding) in order to photograph the whales. Ms. Black's home has been raided, her files and computers seized, her accountant subpoenaed, and her life savings depleted. George Will likens the situation to Kafka, but when examining whether this is how the criminal law should work, we might ask ourselves, as the Pequod's crew did, is this what we shipped for?

It is unconstitutional to imprison an individual for inability to pay a fine. Yet across the United States, men and women are serving jail time for failure to pay criminal fines and "user fees" imposed by cash-strapped jurisdictions. These fines and fees are often collected by private companies, which impose their own fees. For example, the New York Times recently reported on the case of Gina Ray, who lost her driver's license when she failed to appear in court for a speeding ticket. When she was later arrested for driving with an invalid license, she was handed over to private probation company, imprisoned, and charged an additional fee for each day behind bars. In all, she spent 40 days in jail, and still owes more than $3000, much of it to the private probation company. The ABA Journal reported on the case of Ameen Muqtadir, who was released from a Pennsylvania prison in 2002 after serving time for robbery, but years later billed more than $40,000 for bail allegedly forfeited when he failed to appear in court in connection with that crime. (Muqtadir was in prison at the time of the court appearances.) States and localities have increasingly looked to the criminal justice system as a means of generating revenue, imposing fees for everything from being arrested to obtaining parole, and for the costs of incarceration. Both the ACLU and NYU's Brennan Center for Justice have published reports detailing the "devastating impact" that incarcerating individuals unable to pay these fees can have on individuals attempting to reenter society after serving criminal sentences, and the "severe -- and often hidden -- costs" on communities and taxpayers, as these fees make it harder for individuals to find employment and housing, and to meet obligations like child support. But the practice -- which is being challenged in several lawsuits -- continues.

In 2007, Xavier Alvarez introduced himself at a public meeting as a recipient of the Congressional Medal of Honor, the United States' highest military award for bravery. But Alvarez - a habitual prevaricator who lied about everything from playing professional hockey to marrying a Mexican starlet - had not been awarded the medal, and was indicted under the Stolen Valor Act. The Act made it a crime for anyone to "falsely represent" that he or she had been awarded a military medal. Last week, the Supreme Court agreed that the statute was an impermissible restriction of speech, and invalidated it under the First Amendment. In an opinion joined by three other Justices, Justice Kennedy accepted the government's argument that the statute protected the important interest of preserving the integrity and purpose of the military medal system, but held that it failed to meet the "exacting scrutiny" required under the First Amendment. Justice Kennedy noted the government's argument that the Court had found no First Amendment protection for false statements in other contexts, including defamation, but found no categorical exception from First Amendment protection for false statements. Generally, the restrictions on false speech are tied to some injury, while the Stolen Valor Act "targets falsity and nothing more." Justices Breyer and Kagan provided the swing votes, but reached their decision applying intermediate scrutiny. Specifically, Justice Breyer held that the statute violated the First Amendment because its objective could be met in a less burdensome way; for example, by a "more finely tailored statute" requiring a showing of specific harm or materiality. Finally, Justice Alito, joined by Justices Scalia and Thomas, dissented, writing that the speech at issue has "no value," and that "proscribing [it] does not chill any valuable speech."

In its 2000 decision in Apprendi v. New Jersey, the Supreme Court held that any fact that increases the maximum term of incarceration faced by a criminal defendant must be proved to a jury beyond a reasonable doubt. Prior to Apprendi, judges found many of those facts in sentencing, after the jury was dismissed. Today, in Southern Union Co. v. United States, the Court extended Apprendi's rule to facts determining the maximum amount of a criminal fine.

In Southern Union, the defendant was found guilty of a criminal violation of the Resource Conservation and Recovery Act ("RCRA") for improperly storing mercury. RCRA imposes a maximum fine of $50,000 per day for such a violation. After the company was convicted, prosecutors argued for a maximum fine of $38.1 million, asserting that the company had improperly stored mercury for 762 days. However, the jury had not been asked to determine the precise duration of the violation, and had been told that a violation of only one day was sufficient for conviction. Therefore, Southern Union argued, Apprendi permitted a maximum fine of $50,000. The Supreme Court agreed, in a decision that will have a particularly significant effect on corporate criminal defendants, who often plead guilty in the face of potentially ruinous fines. By requiring the government to prove to the jury every fact necessary to support a fine, Southern Union will give corporations charged with crimes new leverage, both in plea bargaining and at trial.

For years, Howard Kieffer -- a California resident -- held himself out as a criminal defense attorney, although he had never attended law school or passed any bar. He registered a domain name with a Virginia company, which also hosted the web site. Federal prosecutors charged him with wire fraud, asserting that the web site he maintained, which was accessed by two of his victims, in Colorado and Tennessee, was a "wire communication in interstate commerce" sufficient to establish jurisdiction under the federal wire fraud statute. In United States v. Kieffer, the United States Court of Appeals for the Tenth Circuit,recognized that the victims could have accessed Kieffer's website from local host servers in Colorado and Tennessee, in which case the "communication" made directly to them would not have traveled in interstate commerce. However, the court noted that before the website could reach the local host server, it had been uploaded by Kieffer to the Virginia company, and then transmitted from Virginia to Colorado and Tennessee. The court held that "[t]he presence of end users in different states, coupled with the very character of the internet" permitted the jury to infer transmission across state lines. Under Kieffer, an allegation that a web site was used to perpetrate fraud would give rise to federal wire fraud jurisdiction in nearly every case. Given "the very character of the internet," it is unlikely that a defendant will reside in the same state as his web site host and victims. If other courts follow Kieffer -- and indeed, unless other courts reject it -- there is likely to be a surge in federal wire fraud prosecutions.

The Texas Public Policy Foundation recently published 12 Steps for Overcoming Overcriminalization. Among its suggestions: identify and amend laws with weak or nonexistent mens rea requirements; establish a default mens rea for criminal statutes silent on this issue; enact the Rule of Lenity -- a canon of statutory construction -- as a statute; and eliminate the delegation to administrative agencies of the power to make criminal offenses of rules violations.

The Double Jeopardy Clause forbids retrial on a charge that previously resulted in an acquittal. But in Blueford v. Arkansas, the Supreme Court allowed the state to retry a defendant after a jury announced in open court that it had unanmiously rejected murder charges. In 2007, Alex Blueford was accused of killing his girlfriend's young son. The charge of capital murder included three lesser-included offenses: first-degree murder, manslaughter and negligent homicide. Arkansas is an "acquittal-first" jurisdiction, in which a jury may not consider a lesser-included offense unless and until it rejects a more serious offense. In other words, Blueford's jury could not consider the first-degree murder charge unless and until it rejected the capital murder charge, and it could not consider manslaughter unless and until it rejected first-degree murder. When Blueford's jury told the court it could not reach agreement, the forewoman told the judge that it was "unanimous against" capital and first-degree murder, but could not agree on manslaughter or negligent homicide. The judge sent the jury to deliberate further, refusing Blueford's request that the jury be allowed to enter a partial acquittal on the two charges. When the jury announced it was still deadlocked a half-hour later, the court declared a mistrial. When Blueford was re-indicted, for capital and first-degree murder in addition to manslaughter and negligent homicide, he argued that the first two charges were barred by the double jeopardy clause. In a 6-3 decision, the Supreme Court disagreed. Chief Justice Roberts, writing for the majority, held that the jury's announcement that it was "unanimous against" the charges of capital and first-degree murder did not bar a retrail on those charges because "no formal judgment of acquittal was entered," and because the jury could have reconsidered its finding on these charges when it returned to deliberations. He further held that it was not error for the trial court to declare a mistrial without allowing the first jury to enter a partial verdict on capital and first-degree murder. In dissent, Justice Sotomayor wrote that the forewoman's announcement was an "acquittal for double jeopardy purposes," and that requiring entry of a formal judgment exalts form over substance. Moreover, she concluded that the trial court erred in declaring a mistrial without taking a partial verdict. She noted that an acquittal-first instruction increases the likelihood of conviction on a greater offense, and held that requiring a partial verdict in such a case "ensures that the jurisdiction takes the bitter with the sweet."

In addition to punishing one who accesses a computer without authorization (e.g., , a non-employee who "hacks" into a corporate network), the Computer Fraud & Abuse Act ("CFAA") also punishes one who "exceeds authorized access" to a computer by "access[ing] a computer with authorization and [using] such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." 18 U.S.C. 1030(a)(4), 1030(e)(6) (emphasis added). In United States v. Nosal, the Ninth Circuit recently limited the reach of the latter portion of the statute. When David Nosal left an executive search firm, he convinced his former colleagues to help him start a competing business by providing him with proprietary information -- including source lists and contact information -- from his former firm's confidential database. Nosal's colleagues were authorized to access the database, but were not authorized to share it outside the company. Nosal was charged with aiding and abetting violations of the CFAA. In Nosal, a divided en banc Ninth Circuit upheld the District Court's dismissal of the counts. The government argued that the statute's "exceeds authorized access" prong should be interpreted to cover not only users authorized to view certain files, but who access other, unauthorized files, but also users with unrestricted access who make unauthorized use of the information. Writing for the majority, Judge Alex Kozinski held that to interpret the statute in that way would make it a "sweeping Internet-policing mandate." He noted that such an interpretation would criminalize violations of corporate computer use policies (for example, using a work computer to send personal email) or website terms of service (such as lying on dating sites). In dissent, Judge Barry Silverman accused the majority of "knocking down straw men," pointing out that the CFAA's requirement of intent to defraud would prevent the majority's "parade of horribles" from occurring. Judge Kozinski, however, wrote that whether or not Congress could criminalize unauthorized use of computer information, the CFAA must be limited to unauthorized access.

Julian Heicklen, an 80-year old retired chemistry professor from New Jersey, spent the fall of 2009 and spring of 2010 standing outside the federal courthouse in Manhattan with a sign reading "Jury Info." Mr. Heicklen handed passersby -- including, he hoped, jurors -- brochures advocating jury nullification. The doctrine of jury nulification holds that jurors who disagree with a law may vote, on that basis, to acquit a defendant who violated it. For example, in the mid-19th century, sympathetic United States juries refused to convict abolitionists under the Fugitive Slave Act . Mr. Heicklen had his own opportunity to argue for jury nullification when he was indicted for jury tampering. Last month, however, Judge Kimba Wood dismissed the case. Mr. Heicklen -- who in his 60s openly smoked marijuana on the Penn State campus to protest its prohibition -- had argued that the First Amendment protected him, but prosecutors countered that his conduct was "criminal and without constitutional protection." Judge Wood, however, did not reach the constitutional issue. Rather, she held that the jury tampering statute applies only where the defendant attempts to influence a juror in relation to "a specific case pending before that juror."



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.