From time to time I have explained on this site that the government will use information posted on social network sites like Facebook and MySpace to obtain information to assist in investigating criminal conduct or in prosecuting a criminal case.
Recently, I read about a controversy brooding in Italy, where Sicilian authorities began investigating Facebook discussion groups glorifying high-ranking Mafia figures and offering enlistment into the criminal organization. Italy authorities are interested in identifying these pro-mafia internet groups to determine if they are simply goofing adolescents or criminals seeking to send coded messages to one another. Unfortunately, for the government, these groups seem to disappear from the internet at the most opportune moments.
A spokesperson for Facebook said that while the company could not voluntarily disclose the identity of the members subject of the Italian government’s investigation, it may be required to disclose that information, if subpoenaed or ordered by a court. Ostensibly, the identity of members of these pro-mafia groups are a mere signature away from disclosure.
Monday, January 26, 2009
Thursday, January 15, 2009
The Pitfalls of Social Networking in Criminal Investigations and Prosecutions
For quite sometime, we have been advising our clients who are subject of criminal investigations or prosecutions to remove and/or censor information they may have posted on social network sites, e.g. Facebook, Myspace, etc. There are many instances where government will review content on these sites to collect information to further enhance its investigation or its prosecution.
Recently, I read about two cases "downunder" where law enforcement agents used information in Facebook to apprehend criminals. In one instance in New Zealand, a security camera captured a criminal attempting to break into a safe at a local pub. After the event, the police department posted the surveillance photographs on its Facebook page. Within 24 hours, the subject was arrested because viewers of the website readily identified his image. In antoher case, five customers "dined-and- dashed" on a check at an expensive restaurant. Thereafter, the owner remembered that one of the diner's asked about a former waitress. The waitress suggested that the owner search her Facebook list to determine if the criminal could be identified. He was and an arrest followed.
The lessons from these cases are clear. While social networking can be an exciting opportunity to maintain contact with friends and family and to develop new relationships, there is a dangerous downside.
For more information on similar issues visit www.ftlucianolaw.com
Recently, I read about two cases "downunder" where law enforcement agents used information in Facebook to apprehend criminals. In one instance in New Zealand, a security camera captured a criminal attempting to break into a safe at a local pub. After the event, the police department posted the surveillance photographs on its Facebook page. Within 24 hours, the subject was arrested because viewers of the website readily identified his image. In antoher case, five customers "dined-and- dashed" on a check at an expensive restaurant. Thereafter, the owner remembered that one of the diner's asked about a former waitress. The waitress suggested that the owner search her Facebook list to determine if the criminal could be identified. He was and an arrest followed.
The lessons from these cases are clear. While social networking can be an exciting opportunity to maintain contact with friends and family and to develop new relationships, there is a dangerous downside.
For more information on similar issues visit www.ftlucianolaw.com
Monday, January 12, 2009
Increased Use of Cocaine in the White Teenage Community
The University of Michigan recently produced a study that disclosed that over the last seven years, the county has experienced a 24% decline in illicit drug use. There were two limited exceptions. The most startling of which was the use of cocaine by young Caucasians. Specifically, it was found that young whites are four times more likely to use cocaine than their black counterparts. In 2006, the ratio of whites admitted to drug rehabilitation for cocaine or crack addiction was approximately ten times greater than black admissions. It gets worse. According to the study, white teenagers fail to see the serious risks association with cocaine experimentation, which by necessary implications, may have the potential of increasing use even further.
The next question is how will the government approach this troubling information? Will it spike the penalties for teenage-cocaine-related crimes as it has done in the past for similar adult activity? Or, will it structure mechanisms in the criminal justice system that will educate and rehabilitate these misguided youths?
New Jersey seems to be focusing its energy and attention on education and rehabilitation through its hugely successful Drug Court which allows drug addicted criminal to participate in an intensively supervised period of probation without prospects of incarceration.
For more information on New Jersey’s Drug Court system, you should check out the Library Section of my website (www.ftlucianolaw.com), where I expect to post an informative article on the subject in the next 30 days.
The next question is how will the government approach this troubling information? Will it spike the penalties for teenage-cocaine-related crimes as it has done in the past for similar adult activity? Or, will it structure mechanisms in the criminal justice system that will educate and rehabilitate these misguided youths?
New Jersey seems to be focusing its energy and attention on education and rehabilitation through its hugely successful Drug Court which allows drug addicted criminal to participate in an intensively supervised period of probation without prospects of incarceration.
For more information on New Jersey’s Drug Court system, you should check out the Library Section of my website (www.ftlucianolaw.com), where I expect to post an informative article on the subject in the next 30 days.
The Crack in the Crack Cocaine Sentecing Scheme
In December of 2007, the United States Sentencing Commission lowered the sentencing exposure for those individuals convicted of distributing crack cocaine because the existing scheduling scheme was intellectually defective and created a racially driven imbalance between distributors and users of crack cocaine (i.e. black and Hispanic)and distributors and users of powder cocaine (i.e. moneyed Caucasians). In addition, the Commission agreed to roll back the harshness of crack conviction penalties retroactively. The decision to review prior sentencing for retroactive application was delayed, however, until March, 2007 to enable the courts to prepare for the expected tsunami of applications for reconsideration.
The results are now in, and the number are outstanding. A recent report from the Commission found that over 17,000 applications to reduce crack related sentences were filed, and that over 12,000 of those applications were successful. Additionally, it appears that the United States Attorney's Office has not been very contentious with these applications, choosing instead to file objections only under extremely limited circumstances.
Some of the other information published by the Commission's recent report follows:
- New Jersey Federal applicants had an average decrease of 18 months of prison time, where the nation average was 24 months
- In 14 District Courts, every application for a reduction was granted
- Some applications related to convictions as far back as 1989
- 86% of those applicants were black whose average age was 30
It appears that the pendulum, no matter how slowly it appears to be moving, is now swinging in the right direction
The results are now in, and the number are outstanding. A recent report from the Commission found that over 17,000 applications to reduce crack related sentences were filed, and that over 12,000 of those applications were successful. Additionally, it appears that the United States Attorney's Office has not been very contentious with these applications, choosing instead to file objections only under extremely limited circumstances.
Some of the other information published by the Commission's recent report follows:
- New Jersey Federal applicants had an average decrease of 18 months of prison time, where the nation average was 24 months
- In 14 District Courts, every application for a reduction was granted
- Some applications related to convictions as far back as 1989
- 86% of those applicants were black whose average age was 30
It appears that the pendulum, no matter how slowly it appears to be moving, is now swinging in the right direction
Monday, January 5, 2009
Legalized Medical Marijuana in New Jersey
Today, there are 13 states which have legalized the use of marijuana for medical purposes. While most of these states are in the Western part of the County, our neighboring states of Maine, Rhode Island and Vermont are part of this progressive group. See, http://medicalmarijuana..procon.org/viewresource.asp?resourceID=881, for a good analysis of the law in these states. Now, it appears that New Jersey may soon join the ranks of this growing number of enlightened and humanitarian state governments.
Recently, the New Jersey Senate passed the "Compassionate Use Medical Marijuana Act" which will allow physicians to prescribe marijuana to assist with the problems caused by conditions like cancer, glaucoma, HIV/AIDS and other illnesses that produce severe and chronic pain. Candidates will be issued identification cards and may be able to grow or produce up to six marijuana plants and one ounce of the drug provided they are diagnosed with a qualifying condition by a licensed physician who has had a prior physician/patient relationship with the candidate.
No matter what may result from this noble effort, it must be recognized that the federal Drug Enforcement Administration refuses to recognize the legitimacy of these state laws and continues to arrest and prosecute violators under federal statutes. Recent rumblings from the Obama administration seems to suggest some relief from this myopic position. Only the future will tell, however.
Recently, the New Jersey Senate passed the "Compassionate Use Medical Marijuana Act" which will allow physicians to prescribe marijuana to assist with the problems caused by conditions like cancer, glaucoma, HIV/AIDS and other illnesses that produce severe and chronic pain. Candidates will be issued identification cards and may be able to grow or produce up to six marijuana plants and one ounce of the drug provided they are diagnosed with a qualifying condition by a licensed physician who has had a prior physician/patient relationship with the candidate.
No matter what may result from this noble effort, it must be recognized that the federal Drug Enforcement Administration refuses to recognize the legitimacy of these state laws and continues to arrest and prosecute violators under federal statutes. Recent rumblings from the Obama administration seems to suggest some relief from this myopic position. Only the future will tell, however.
Monday, December 8, 2008
New Jersey's Graves Act: Well Needed but Overreaching
The recent arrest of Plaxico Burress has reawakened the criminal justice system's preoccupation with weapon offenses. Over 17 years ago, New Jersey enacted the so-called Graves Act named after a crusading Mayor and State Senator from Paterson, New Jersey whose name was Frank X. Graves.
By the terms of the "Graves Act", if you are convicted of possession of a firearm with the intent to use it against another, or use or possess a firearm while committing, attempting to commit, or fleeing from certain enumerated crimes, the sentencing judge must impose a minimum term of imprisonment without parole eligibility for a period of three year or between one-half and one-third of the sentence imposed, which ever is greater.
While the need to secure our neighborhoods from the illicit use of weapons is a necessary component of our social order, like many of the other products of the country's "war-on-crime" the Graves Act is somewhat overreaching in its application in at least a few areas.
Specifically, the legislation is applicable to "BB-guns" and as a result, a teenager who recklessly decides to shoot his buddy in the butt as a joke can be prosecuted under this statute. In addition, it does not matter that the firearm was not loaded or even inoperable for criminal liability to attach. Finally, while our constitution requires a jury to determine an accused's guilt beyond a reasonable doubt, the Graves Act allows a judge to determine certain limited issues where the standard of proof is a mere "preponderance of the evidence" which is the proof required in civil cases. While the courts have begun to make some inroads into this fact-finding quirk, the other conceptual excesses in the Graves Act still maintain their vitality.
By the terms of the "Graves Act", if you are convicted of possession of a firearm with the intent to use it against another, or use or possess a firearm while committing, attempting to commit, or fleeing from certain enumerated crimes, the sentencing judge must impose a minimum term of imprisonment without parole eligibility for a period of three year or between one-half and one-third of the sentence imposed, which ever is greater.
While the need to secure our neighborhoods from the illicit use of weapons is a necessary component of our social order, like many of the other products of the country's "war-on-crime" the Graves Act is somewhat overreaching in its application in at least a few areas.
Specifically, the legislation is applicable to "BB-guns" and as a result, a teenager who recklessly decides to shoot his buddy in the butt as a joke can be prosecuted under this statute. In addition, it does not matter that the firearm was not loaded or even inoperable for criminal liability to attach. Finally, while our constitution requires a jury to determine an accused's guilt beyond a reasonable doubt, the Graves Act allows a judge to determine certain limited issues where the standard of proof is a mere "preponderance of the evidence" which is the proof required in civil cases. While the courts have begun to make some inroads into this fact-finding quirk, the other conceptual excesses in the Graves Act still maintain their vitality.
Wednesday, November 26, 2008
The Decriminalization of Marijuana
On November 4, 2008, the voters of Massachusetts approved an initiative to decriminalize possession of a small amount of marijuana. In some districts, the voters favored the initiative by 65%. This progressive proposition is consistent with legislation enacted in California quite some time ago.
The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.
The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."
If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."
Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com
The frailties of legislation of this type is that: although an individual may possess a small amount of marijuana without state criminal liability, the Federal Government may still prosecute for a violation of the Federal Controlled Substances Act. That much is clear from the United States Supreme Court's decision in Gonzalez v. Raich.
The influence of the Raich case on state laws that decriminalize possession of marijuana may be short lived. This autumn, legislation was proposed in the House of Representatives that would remove all federal penalties, including most civil fines, for the possession and use of marijuana by adults up to three ounces. This unprecedented legislation would effectively legalize the not-for-profit transfers and use of marijuana by "responsible adults."
If you would like more information on criminal drug prosecution in the state of New Jersey, please visit his website at www.cdswiz.com where you can download his recently published book entitled "The Drug War: The Other Casualties."
Frank T. Luciano
Frank T. Luciano, P.C.
147 Main Street
Suite 5
Lodi, New Jersey 07644
(973) 471-0004
www.ftlucianolaw.com
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