June, 2015

Maryland:  Two State Courts Provide Guidance on Authenticating Texts, Facebook Messages

The Maryland Court of Appeals held that a witness’s confirmation that she owned a particular Facebook account and that she sent some of the messages from that account depicted in screen shots wasn’t enough to authenticate other messages sent from the same account.  The federal authentication rule and the state rules modeled on it require a demonstration that a piece of evidence is what its proponent claims it to be.  But the generality of this rule has sent courts off in different directions, with some courts more skeptical of the origins of digital communications in light of the ease with which people can create accounts.  Sublet v. State, 2015 BL 115846 (Md., No. 42, 04-23-15); full text at http://www.bloomberglaw.com/public/document/Sublet v_State_No_42_2015_BL_115846_Md_Apr_23_Court_Opinion

Virginia:  Joinder of Four Drug Transactions Improper Where Sales Weren’t Part of Unified Scheme

A divided Virginia Supreme Court ruled that a man who sold crack cocaine to an undercover agent on four separate occasions over a span of 13 days was not engaged in a common scheme or plan that justified consolidating all four drug charges in a single trial.  Different crimes may be tried together on the theory that they are part of a larger “common scheme or plan” only if the objective of each offense was to help reach a particular goal that couldn’t be achieved individually by any of the criminal acts.  Walker v. Commonwealth, 2015 BL 107772, (Va., No. 140747, 04-16-15); full text at http://www.bloomberglaw.com/public/document/Walker _v_Commonwealth_No_140747_2015_BL_107772_Va_Apr_16_2015_Cou

Minnesota:  Apprendi Rule Requires That Jury Resolve Risk-Level Status That Hiked Release Terms

The Minnesota Supreme Court held that the rule that says juries, not judges, must make the factual findings used to boost a sentence beyond its statutory maximum prevents a trial judge from enhancing a man’s sentence for failing to register as a sex offender by relying on a department of corrections committee’s conclusion five years earlier that the man posed a high risk to public safety.  State v. Her, 2015 BL 116591 (Minn., No. A13-1586, 04-22-15); full text at http://www.bloomberglaw.com/public/document/State_v_Ge_Her_No_A131586 _2015_BL_116591_Minn_Apr_22_2015_Court_O

Massachusetts:  Medical Marijuana Law Adds Item to Police Search-Warrant Checklist

The Massachusetts Supreme Judicial Court held that a new medical marijuana law means that law enforcement officers seeking a warrant to search for evidence of a marijuana manufacturing operation must lay out probable cause to believe that the suspects aren’t permitted by law to grow marijuana.  The court stated that if police seek a warrant to search such a property for evidence of illegal marijuana possession or cultivation, they must offer information sufficient to provide probable cause to believe that the individual is not properly registered under the act to possess or cultivate the suspected substance.  Commonwealth v. Canning, 2015 BL 119250, (Mass., No. SJC-11773, 04-27-15); full text at http://www.bloomberglaw.com/public/document/Commonwealth_v_ Canning_471_Mass_341_2015_Court_Opinion

Ohio:  Cop’s Assumption That Suspect Used Internet Spoiled Magistrate’s Probable Cause Finding

A divided Ohio Supreme Court held that a search warrant for a suspect’s home computer is invalid where the officer simply guessed that the suspect found a harassment victim’s address “on-line” but presented that conjecture as fact in the underlying affidavit.  The officer usurped the magistrate’s inference-drawing authority to evaluate probable cause by presenting his conjecture about the suspect’s likely use of the Internet as an established fact.  State v. Castagnola, 2015 BL 121839 (Ohio, No. 2013-0781, 04-28-15); full text at http://www.bloomberglaw.com/public/document/State_v_Castagnola_2015 Ohio1565_Ohio_Apr_28_2015_Court_Opinion

Ninth Circuit:  Blown Federal Habeas Deadline Forgiven Where Lawyer Flubbed Filing, Misled Client

The Ninth Circuit held that egregious attorney negligence falling short of complete abandonment may still be bad enough to justify equitably tolling the one-year deadline for filing a federal habeas petition.  The court stated that the lawyer’s “misconduct consisted of undoing Luna’s diligent work and then misleading Luna to believe for six-plus years that everything was proceeding on track in federal court when that was not the case.”  Luna v. Kernan, 2015 BL 121941, (9th Cir., No. 12-17332, 04-28-15); full text at full text at http://www.bloomberglaw.com/public/document/Luna_v_Kernan_ No_1217332_2015_BL_121941_9th_Cir_Apr_28_2015_Court

Second Circuit:  NSA Metadata Collection Program Halted

The Second Circuit vacated and remanded the district court’s order dismissing the action and denying the ACLU’s motion seeking permanent injunction to enjoin the government from continuing the telephone metadata collection program by the National Security Agency (NSA).  The Court of Appeals held that (1) the ACLU possessed Article III standing to bring the action; (2) the secrecy provisions attached to orders approved by the Foreign Intelligence Surveillance Court (FISC) did not preclude judicial review of the program; (3) the FISA provision which allowed orders did not preclude judicial review of the program; (4) the legislative history of the FISA provision did not preclude judicial review of the program; (5) the statutory provision which granted private right of action for money damages against the United States for enumerated statutory violations did not preclude judicial review of a challenge to the program; and (6) the collection of telephone metadata was not relevant to authorized counterterrorism investigations, and thus, collection of the information exceeded the authority granted by FISA.

Tenth Circuit:  Restitution Formula for Mortgage Frauds Requires Tweaking for Downstream Lenders

The Tenth Circuit held that determining restitution in mortgage fraud cases requires an analysis different from determining victims’ “loss” under the U.S. Sentencing Guidelines when the victims are secondary lenders.  The court reasoned that because secondary lenders may have purchased the loans at a discounted price, their “out of pocket” losses would be correspondingly reduced.  United States v. Howard, 2015 BL 122129 (10th Cir., No. 14-1075, 04-28-15); full text at http://www.bloomberglaw.com/public/document/United_States_v_Howard_No_141075 2015_BL_122129_10th_Cir_Apr_28_2