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Fall 2012 legal update
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  • 1. Financial Crimes And Digital Evidence Conference Legal Update Sr. Asst. Atty. General Michael Slauson Oregon Department of Justice September 20, 2012
  • 2. Legal Update State v. Urbina, 249 Or App 267 (2012)Facts:  Defendant downloading CP using peer-to-peer network  Defendant claimed on appeal:  He did not “duplicate” CP by downloading it  He did not know the CP was CP when he downloaded itHolding:  Downloading probably equals duplication…  Evidence probably sufficient to show knowledge
  • 3. Legal Update State v. Kinney, 249 Or App 651 (2012)Facts:  Defendant was charged with multiple counts of encouraging child sexual abuse in the first and second degree  Defendant offered to stipulate that the recordings depicted children engaged in sexually-explicit conduct and that creation of the recordings involved child abuseHolding:  State not required to accept stipulation:  Knowledge  Sexual intent
  • 4. Legal Update State v. Reeves, 250 Or App 294 (2012)Facts:  Defendant convicted of downloading CP using peer-to-peer network  At sentencing, defendant argued that his convictions should merge  Insufficient pause between downloads  Society is the single victim of CP offensesHolding:  Downloads could have happened simultaneously  Each child depicted is a separate victim
  • 5. Legal Update State v. Reynolds, 246 Or App 152 (2011)Facts:  Defendant charged with theft by deception for failing to pay rent, deposits, and late fees on her condo  Defendant argued no intent to defraud, just a good-faith dispute about what was owedHolding:  Conviction reversed
  • 6. Legal Update State v. Elliot, 251 Or App 139 (2012)Facts:  Defendant entered a private office, rummaged through a desk, and stole five credit cards, two checks, and a PDA bought lottery tickets with a stolen credit card  Defendant then ran into his PO  At trial, defendant argued evidence insufficient to show ID theft, because he was going to sell the stolen items for drugsHolding:  Conviction upheld
  • 7. Legal Update Filarsky v. Delia, 566 US ___ (April 17, 2012)Facts:  Firefighter is suspected of calling in sick to do home-  improvement work on his house  Fire department hires private firm for investigation  Investigators see firefighter buying insulation  Attorney retained by FD interviews firefighter and gets fire chief to order firefighter to bring out rolls of insulation  Firefighter brings §1983 claim against AttorneyHolding:  Attorney has qualified immunity, but…
  • 8. Legal Update State v. Goodenow, 251 Or App 139 (2012)Facts:  Defendant bought groceries and lottery tickets with a credit card in the name of her boyfriend’s deceased mom  Defendant won a $1 million prize  Before she got caught, defendant used a portion of the proceeds to pay off the credit card  Defendant argued that forfeiture of the proceeds would violate Eighth Amendment’s Excessive Fine ClauseHolding:  Forfeiture upheld
  • 9. Legal Update State v. White, 249 Or App 166 (2012)Facts:  Defendant was convicted of first-degree theft for receiving unemployment benefits while he was employed  Court imposed restitution that included interest to the Employment Department under ORS 657.310Holding:  Restitution overturned:  Damages available in a civil action and the damages recoverable as restitution are not necessarily coextensive
  • 10. Legal UpdateSouthern Union Co v. United States, 567 US ___ (June 12, 2012)Facts:  Jury convicts defendant of one count of unlawfully storing mercury “on or about September 19, 2002 to October 19, 2004  Violations are punished at a maximum fine of $50,000 “for each day of violation”  Government says $38.1 million liability, defendant says $50,000Holding:  Apprendi rule applies to criminal fines
  • 11. Legal Update State v. Onishenko, 249 Or App 470 (2012)Facts:  The victim’s shoe business failed and he stored his remaining shoe inventory at a warehouse  The victim authorized defendant to sell a few online, but defendant took them all and sold them at second-hand stores  The trial court imposed a compensatory fine for the wholesale value of $102KHolding:  Trial court correctly determined amount of economic damages based on the value of the property at the time of the theft
  • 12. Legal Update State v. Savastano, 243 Or App 584 (2011), rev allowed 351 Or 678 (2012)Facts:  Defendant was accused of embezzling hundreds of thousands of dollars from her employer in numerous individual theft transactions over a 16–month period  Prosecutor aggregated individual thefts by each month  Defendant challenged aggregation on ground DA lacked systematic policyHolding:  DA lacked policy; aggregation invalid
  • 13. Legal Update State v. Smith 246 Or App 204 (2011)Facts:  Defendant charged with first-degree theft based on aggregation  Coos County DA had no written policy  DDAs consider individual facts of case, total loss, and defendant’s criminal history  Defendant claimed it was impossible to tell how unwritten policy was appliedHolding:  Defendant failed to show lack of consistent enforcement
  • 14. Legal Update State v. Klien ___ Or ___ (2012) (August 2, 2012)Facts:  Police used body wire in cold-case murder between defendant’s girlfriend and the co-defendant  Defendant challenged body wire evidence, because order was signed by judge who was in DA’s office at time of murderHolding:  Defendant had no standing to challenge order because he was not “an aggrieved person” – he was not targeted by the interception and had no privacy interest in the location of the interception
  • 15. Legal Update State v. Neff 246 Or App 186 (2011)Facts:  During a traffic stop, officer tells defendant that he is recording the conversation  Without telling the officer, defendant also recorded the conversation on his cell phoneHolding:  Conviction overturned in split decision: Once a participant informs other participants to a conversation that the conversation is being recorded, then any other participant may record the conversation
  • 16. Legal Update United States v. Jones, 565 US ___ (2012)Facts:  Without a warrant, federal law enforcement place a GPS tracking device on a car that is used by defendantHolding:  The trespassory invasion by placing the GPS on the car was a search under the Fourth Amendment
  • 17. Legal Update State v. Miskell/Sinibaldi, 351 Or 680 (2012)Facts:  Police recorded a conversation between an informant and two burglary suspects without a court order  The state argued that because the circumstances were “fluid,” the interception was justified under the statute’s exigency exceptionHolding:  The statutory exigency exception incorporates the constitutional standard  Police not justified in failing to obtain order
  • 18. Legal Update State v. Powell 352 Or 210 (2012)Facts:  Defendant obtained over $10,000 worth of goods from packages he stole in his courier job for FedEx  FedEx investigators assured him they would not report his crimes to police if he confessed and gave a written statement  Defendant later gave a Mirandized confession to policeHolding:  COA Reversed: Both confessions inadmissible
  • 19. Legal Update State v. Mast 250 Or App 605 (2012)Facts:  Plaintiff in a civil case obtains money judgment against defendant, his business partner, and the company they owned  Plaintiff gets a writ of execution that is executed by the Washington County Civil Unit  During search, deputies find mushrooms in defendant’s office safeHolding:  Warrantless search violated Article I, section 9
  • 20. Legal Update State v. BobbittFacts: 249 Or App 181 (2012)  During search warrant for drug crimes, police identify several records showing defendant’s bank accounts  An officer sends the bank a notice of intent to seize assets and cites to the criminal forfeiture statute  A bank employee calls the officer to ask whether he also wants to seize defendant’s safety deposit box  Officer later obtains search warrant and finds large amount of cash in safety deposit boxHolding:  Employee violated financial-privacy laws – evidence inadmissible
  • 21. Questions???