Fall 2012 legal update

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Fall 2012 legal update

  1. 1. Financial Crimes And Digital Evidence Conference Legal Update Sr. Asst. Atty. General Michael Slauson Oregon Department of Justice September 20, 2012
  2. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 21. Questions???

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