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U.S. Supreme Court Will Review the Problematic Separate Sovereigns Exception

Posted By admin 2018-07-10 20:48:09

The United States Supreme Court agreed recently to consider whether to overturn a longstanding rule that allows federal and state prosecutions for the same offense. The cert petition filed on behalf of Terrance Gamble was granted, allowing the Court to decide “[w]hether the Supreme Court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”

Mr. Gamble is challenging his prosecution by federal officials for possessing a firearm as a felon after Alabama state had already convicted and sentenced him for the same offense. The Double Jeopardy Clause forbids the government from prosecuting a person more than once for the same offense, but courts have long held that this only bars reprosectution by the same sovereign. Put simply, under what is known as the “separate sovereign” exception, the federal government may reprosecute a person after a state prosecution (and vice versa). A defendant can therefore be prosecuted by both the state government and the federal government for the same offense.

My firm in Los Angeles practices criminal law at both the state and federal levels, giving me a unique opportunity to observe how the separate sovereigns exception is applied in California. I have noticed (and been disturbed by) duplicative federal-state prosecutions becoming increasingly common. This trend is in part because of the growing scope of federal criminal law. In addition, I think that states are benefiting from the exception to help fill investigative gaps, or refine legal arguments, that led to exoneration at the federal level. (The same goes for the federal government). Furthermore, the separate sovereigns exceptions appears to be applied more frequently in high profile cases, and/or cases involving serious charges that carry serious social stigma. For instance, the Justice Department recently brought charges against alleged Charlottesville attacker James Fields Jr., who is already awaiting a state trial in Virginia.

Mr. Gamble’s case is instructive on why the separate sovereigns exception raises serious constitutional issues and is ripe for challenge. For defendants like Mr. Gamble, the separate sovereigns exception can result in a lengthier time in custody. As a result of the duplicative conviction, Mr. Gamble must spend an additional three years of his life behind bars. This result is incompatible with the text of the Double Jeopardy Clause, and with the original purpose of the Clause and federalism more broadly. As Mr. Gamble’s petition for a write of certiorari explains:

The court-manufactured “separate sovereigns” exception— pursuant to which [Mr. Gamble’s] otherwise plainly unconstitutional duplicative conviction was upheld— is inconsistent with the plain text and original meaning of the Constitution, and outdated in light of incorporation and a vastly expanded system of federal criminal law.

I agree with Mr. Gamble’s position. The purpose of the Double Jeopardy Clause is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to stigma, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity. The separate-sovereigns exception cannot be reconciled with this purpose.

That the separate sovereign exception has drawn scrutiny from liberal and conservative justices alike points to its fundamental unfairness. UCLA law professor Eugene Volokh noted that both Justices Ruth Bader Ginsburg and Clarence Thomas recently questioned the doctrine’s viability. While I am disturbed that the separate sovereigns exception is being applied more readily, I am optimistic that the Supreme Court will find that the exception cannot be squared with the Double Jeopardy Clause and should no longer apply.

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New Ninth Circuit Case Smartly Rules that Expert Profiling is Insufficient to Prove Conspiracy

Posted By admin 2018-05-14 22:15:20

As a drug crimes specialist at both the state and federal levels, I have taken issue with a trend in recent years where trial courts have permitted prosecutors to offer a police officer to provide “expert” evidence on drug courier profiles. Drug courier profile testimony is an unverified list of general behavior patterns ostensibly engaged in by typical drug traffickers. Courts have continuously held that this type of expert opinion is helpful to the jury because it is based on the observation of seemingly innocent conduct, which only a trained individual would be able to distinguish as being indicative of criminal activity. However, I view such profiling evidence as prone to discrimination and racism, and certainly incapable on its own of proving the ultimate issue of guilt. Thankfully, the Ninth Circuit agreed with this position in a new landmark ruling in the Espinoza-Valdez decision.

In my view, drug courier profile testimony is inherently prejudicial because of the potential it has for including innocent citizens as profiled drug couriers and because simply matching a defendant to a drug profile may unfairly suggest to the jury that otherwise innocuous conduct or events demonstrate criminal activity. A drug expert’s testimony cannot substitute for witnesses who actually observed or participated in the illegal activity. Accordingly, I have argued in my cases that the unfair prejudicial effect of this kind of evidence substantially outweighs any probative value it might have, and must not be admitted at trial.

The Ninth Circuit’s new ruling in Espinoza-Valdez will help to stem the ability of prosecutors to rely exclusively on “expert” profiling evidence to prove the ultimate issue in drug cases. Espinoza-Valdez is scout case where the Ninth Circuit reversed convictions of conspiracy to import and conspiracy to distribute marijuana for insufficiency of evidence. In that case, the government raided a mountaintop, and caught the defendant. He had a radio, batteries, provisions, and other evidence of drug trafficking. The defendant had been apprehended months previously backpacking. What the government lacked was evidence of with whom he conspired, the object of the conspiracy, any agreement, or evidence of what had occurred with others. The government used solely expert testimony to explain the structure of the trafficking, role, and possible amounts.

The Ninth Circuit reasoned that while it was probable that the defendant was a scout, more was needed than an “expert profiling” to find him guilty of conspiracy beyond a reasonable doubt. Accordingly, the government may no longer rely on expert testimony of drug courier profiles alone to establish guilt.

The Ninth Circuit’s reversal for insufficiency of evidence was based on reasoning that the risk of profiles are too great, especially when the actual evidence of an agreement for a conspiracy was nonexistent. The ruling in Espinoza-Valdez acknowledges that jury members are too often presented with the testimony of a case agent whose opinion entails conclusions on ultimate issues, thereby leaving them with no real fact to find due to the expert’s credibility. See United States v. Dukagjini, 326 F.3d 45, 53 (2d Cir. 2002) (noting that a case agent acting as expert has “unmerited credibility” in the eyes of jurors).

This ruling will give defense counsel a powerful tool to object when officers are introduced as experts simply to repeat the testimony of a fact witness and place the government’s seal on that fact witness’s testimony. Federal lawyers, as well as state lawyers who focus on drug crimes, should keep this valuable new case in their pockets when trying to exclude expert evidence from police officers.

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The Ninth Circuit Fails to Remedy Serious Brady and Giglio violations

Posted By admin 2018-05-02 17:22:22

The Ninth Circuit in the recent Garrison decision handed down derisory curative instructions for serious and repeated Brady and Giglio violations. There was no outrage expressed or even demand for training or reform. The panel affirmed a conviction for conspiracy to distribute controlled substances. As a lawyer who specializes in federal drug cases, I have fought hard to remedy Brady and Giglio violations, and I am troubled that the Garrison decision could drain the defense bar of litigation tools to protect important due process rights for our clients in the future.

The appellant Garrison was a physician’s assistant. His clinic used patient recruiters to bring in homeless people to prescribe OxyContin, and the clinic then relieved patients of the pills and sold the OxyContin illegally. Much of the Garrison decision decried the dangers of opioids and lectured on the responsibilities of medical professionals rather than narrowing in on the responsibilities of our government to follow due process standards, which was the subject of this appeal.

The Brady and Giglio violations in this case were serious. Garrison presented the perfect factual matrix for the panel to reprimand government due process violations. Before and during trial, the government repeatedly failed to timely disclose information to the defense, as was required by law. For example, two government cooperators helped a third witness fabricate a false medical report and submit it to a probation officer and a judge. Though the government knew, it did not disclose notes of this conduct to the defense.

In addition, a cooperating co-defendant who was given a special deal that allowed her to continue to work in the medical field was not disclosed to the defense (or court) even after the cooperator testified in direct. It is rare that Brady and Giglio violations are so clear-cut because often the secret nature of such violations prevents the defense from discovering them and litigating.

The panel agreed with Garrison that there is no dispute that the government failed to comply with Brady and Giglio requirements. However, the panel found that the trial court’s jury instruction that the government had disclosed evidence late and that the jury could draw adverse inferences from that late disclosure remedied these violations.

This ruling is disturbingly toothless, and the panel failed to take a nuanced view on whether such jury instructions were sufficient. The district court did not provide a fulsome explanation of the due process rights at stake. Merely telling a jury that it can find a defendant–who it just heard overwhelming inculpatory evidence about, and for a serious crime that is notorious in the news–not guilty due to late disclosure misses the point. Framed this way, late disclosure appears trivial, like bad housekeeping rather than bad faith law enforcement. When fundamental due process rights are at stake, juries should be shown the big picture–the importance due process rights play in protecting the integrity of our criminal justice system. The panel’s decision in Garrison similarly lacked this critical perspective.

The Garrison decision seems to tacitly condone wholesale government Brady and Giglio violations so long as the evidence gathered supports a conviction. This, of course, will only strengthen a culture of impunity felt by some prosecutors, which the Ninth Circuit warned against only five years ago in the Olsen decision, where it concluded that the “epidemic of Brady violations” was something that “only judges can put a stop to.”

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Trump Signs Anti-Sex Trafficking Law that Endangers Free Speech and Safe Sex

Posted By admin 2018-04-23 01:27:16

President Trump recently signed the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), a law that aims to fight sex trafficking by reducing legal protections for online platforms. FOSTA passed the Senate in March, and it has been endorsed by the Internet Association (representing major companies like Facebook and Google), and a handful of celebrates like Amy Schumer.

As a criminal defense lawyer in Los Angeles who specializes in sex crimes, I am skeptical that this new law will seriously limit online platforms for sex trafficking. I am also troubled by FOSTA’s adverse consequences for online free speech and consensual sex work.

FOSTA carves out a new exception to Section 230 of the Communication Decency Act, which shields website operators from liability for user-generated content. Section 230 defines Internet culture as we know it: It allows websites to offer platforms for critical and controversial speech without the threat of being sued or charged criminally. FOSTA undoes these protections for online site providers. It stipulates that Section 230 does not apply to civil and criminal charges of sex trafficking, or to conduct that “promotes or facilitates prostitution.” The rule applies retroactively to sites that violate it.

FOSTA is clearly aimed at sites like, which are hubs for illegal sex work. The law’s reach is much broader, and will also likely deter many site operators from allowing users to post any sexual material, especially site operators who lack the legal and technical resources of huge web platforms. For instance, Craigslist removed its personals section to avoid a lawsuit before the bill was passed.

It is unclear to what extent, if any, FOSTA will strengthen existing anti-prostitution and anti-trafficking law. The Justice Department shut down Backpage and filed criminal charges against its founders last week, before FOSTA was signed. The owner of, another sex work site, was sentenced to prison for promoting prostitution last year. These recent prosecutions indicate that FOSTA is not necessary for the government to successfully target the most notorious websites facilitating illegal sex work.

I do not think Congress properly weighed the supposed benefits of FOSTA against the law’s likely adverse consequences for free speech, consensual sex work, and even victims of the illegal sex trade.

The array of online services protected by Section 230, and thus hurt by FOSTA, is vast. It includes review sites, online marketplaces, discussion boards, and even news publications with comment sections. By attempting to add an additional tool to hold liable the tiny minority of those platforms whose users who facilitate illegal sex work, FOSTA does real harm to the overwhelming majority, who will inevitably be subject to censorship. Websites run by nonprofits or community groups, which have limited resources to restrict user content, would face the most risk. It is little wonder why the Electronic Frontier Foundation has called FOSTA “the most significant rollback to date of the protections for online speech in Section 230.”

Perversely, some of the discussions most likely to be censored could be those by and about victims of illegal sex trafficking. Moreover, FOSTA does not address the demand for sex trafficking, and could push sex traffickers onto the Dark Web to continue online solicitation. In these ways, FOSTA could further marginalize vulnerable workers in the illegal sex trafficking industry.
FOSTA also problematically conflates stopping sex trafficking with stopping consensual sex work, making it difficult for sex workers to screen clients or build communities through online services.

My experience working on sex crimes cases has shown me that tough laws on sex crimes do not weaken the illegal sex trafficking industry. Instead, they often further marginalize sex workers and make the industry even less safe for participants. This is not smart policy, and certainly not worth the high cost FOSTA places on online free speech.

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Defending Against A Federal Search Warrant for Your Computers: What Now?

Posted By admin 2017-06-10 00:13:46

Many of my clients get that dreaded, aggressive knock on the door. It’s the FBI and they have a search warrant to take all your forensic devices in the house. So what do you do now?

Well first, if they have a valid search warrant, you need to let them in. And yes, the FBI and other federal investigative agencies like DHS, ICE and USPS have a bad reputation for doing things like bringing an army of agents with them, in uniform with guns, and demanding that everyone exit the house while the execute the warrant.

Second, remain calm and do not make any statements about your forensic devices without a lawyer present. Usually, an agent will try to ask you questions about who has access to which computers in the house and will then try to get as much information from you as possible about your internet usage.  You simply do not have to talk to the FBI or any other law enforcement agency.  You can firmly but politely inform them that you would like to be cooperative but you have been advised by an attorney that you must not speak with them without an attorney present in these situations.

Third, make sure you receive a detailed property receipt for all the devices they take before they leave.  This will be important once the investigation and case has ended so you can potentially retrieve some or all of the seized devices.

If the FBI, or any other federal agency has issued a search warrant, it means that some kind of federal or state investigation has already occurred—usually an undercover agent online checking out different peer-to-peer (P2P) software, such as Emule, or Gnutella, or BitTorrent, skulking around and searching for what users appear to be downloading or sharing inappropriate content such as child pornography.  Most people who have their account in default settings have the ability for other users to see an index of what images they have and to download them.  Sometimes, it could be the result of a large take-down of an entire website that was posting or permitting images of child pornography to be shared or viewed, and the Feds have obtained the IP addressed for all the user who went to that website.

No matter how the FBI ended up at your door, you need to not give them any additional statements of evidence that can be used against you.  And yes, it’s time to call an experienced criminal defense attorney who knows how to fight against federal and state child pornography charges to handle your case.

Call (888) 445-6313, and speak with Ms. Goldstein today, if a federal search warrant has been issued at your house, or you are currently facing allegations of child pornography in state or federal court.


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