Tuesday, April 28, 2015

State v. Taylor - Is Securities Fraud a Continuing Offense?

The crime of securities fraud is complete when an "offer, sale, or purchase is made...."

      Roger Taylor was charged with multiple counts of securities fraud and theft on the basis of his alleged operation of a Ponzi scheme. The district court concluded that securities fraud and theft are continuing offenses and evaluated the timeliness of the charges with regard to the statute of limitations of that offense.


      The time limit for prosecuting a crime starts the moment that "every element of the offense is met." The legislature has created some crimes in such a way that a perpetrator continues to commit the offense for as long as the elements are satisfied.
     The first step to see if a crime can be offended continuously is to look to the congressional intent. Criminal statutes should not be interpreted to create a continuing offense “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Toussie v. United States, 397 U.S. 112, at 115 (1970).

     The Court held that securities fraud, in violation of Utah Code section 61-1-1, is not a continuing offense. Instead, the crime of securities fraud is complete and the statute of limitations begins to run when an “offer, sale, or purchase” is made “in connection with” an activity specified in subsections (1) through (3).

     The Court looked to the text of the statute, and they determine that the offense is "anchored in the discrete events of an 'offer, sale, or purchase of any security." The Court looks at US Supreme Court decisions on similar statutes holding that they were not continuing violations. The Court also looks to similar Utah statutes that have been determined to not be continuing offenses as well as the fact that a defendant may be charged with a "pattern of criminal activity" lessening the need for this crime to be a continuing violation.

Monday, April 13, 2015

Carter v. Utah - Rule60(b)

Limits to additional evidence given under Rule 60(b) motions.

Carter v. Utah, 2015 UT 38.

Carter was convicted of 1st degree murder and sentenced to death in 1985. The testimony of a couple, the Tovars, was integral to the conviction. They testified that they received nothing in exchange for their testimony other that the standard $14 fee for court-ordered witnesses. In 2011 the Tovars indicated that during the trial, decades earlier, the Police had given them various forms of remuneration. Carter made several motions with regard to this "new" evidence.

The District court denied Carter's rule 60(b) motion attempting to overturn a denial of post-conviction relief. The Utah Supreme Court affirmed this ruling that the motion was made in an untimely fashion.

The Court clarified that rule requires that the motion "be made within a reasonable time, and the 60(b)(6) exception may be used only if the ground asserted for relief is not "one other than those listed" in the preceding subsection. This is to ensure that the ninety-day limitation for submitting motions is not circumvented. See Kanzee v. Kanzee, 668 P.2d 495, 497 (Utah 1983) (holding that because appellant asserted grounds for relief that were listed in subsection (1), the appellant was “not entitled to use [rule 60(b)(6)] to circumvent the three-month limitation”).

The fact that the evidence is new because of the prior suppression by the state is not convincing for the Court to rule in favor of his motion. The statute does not differentiate between various types of newly discovered evidence. Carter's 60(b) motion was brought more than two years after the judgment, long after the ninety-days had passed.

2. District court dismissed Carter's successive post-conviction petitions for lack of subject matter jurisdiction because the case-number was not assigned to the court. The Utah Supreme Court reversed this dismissal. The district court did have jurisdiction over the petition in question, regardless of the case number assigned to it.

“[T]he concept of subject matter jurisdiction relates to the relationship between the claim and the forum that allows for the exercise of jurisdiction.” Johnson v. Johnson, 2010 UT 28, ¶ 9, 234 P.3d 1100. The Court stated that "it has nothing to do with the case number assigned to a particular pleading." The assignment of a case number is a ministerial duty and does not effect the jurisdiction of a case and, if done erroneously, is a clerical error not a jurisdictional defect.

Wednesday, April 8, 2015

Michigan v. Mitchell Jordan Young - Captions with Photographic Evidence

Photographic evidence with captions that accurately relay the evidence are proper.
This case arises from the brutal murder of a man, and the attacks on his wife and son in Farmington Hills, MI. The defendant argues that the prosecutor was relaying their personal opinion of the defendant’s guilt through the use of photographs with accompanying text. The court determined that as long as an image and caption “accurately relays the evidence presented through the use of photographs with accompanying text. The court determined at trial,” will not be deemed improper.

Even when photographs of a victim are graphic they will be accepted in court when they “mirror[] the photographs already admitted into evidence.” According to People v. Howard, 226 Mich App 528, 550; 575 NWnd 16 (1997) autopsy photographs that depict injury and are probative to intent can be admitted. As long as the photographs are properly admitted in the first place, they may be used in court even if they arouse the emotions of the jury, so long as it is not because of the use of text to “modify” the photograph.

The defendant relies on In re Glasman, 175 Wash.2d 696, 706; 286 P.3d 673 (2012) (en banc), to argue that the prosecutor’s photograph captions are “the equivalent of unadmitted evidence” that indicate the prosecution’s personal opinion of the defendant’s guilt. The court in this case, however, ruled that since the text in the photographs only “recited admitted evidence and reasonable inferences from that evidence” there is no issue.

Tuesday, April 7, 2015

Timothy Wayne Dodds v. The State of Texas, 2014 WL 6676774

Threatened by an act, the officer can defend himself. If a jury agrees that it was a threat.

A domestic violence case of an ex-husband, and his new wife, coming to harm the ex-wife and her new boyfriend and take the children. Police were tipped off and the officer arrived at the scene before the ex-husband. When the Appellant arrived at the same time as another party, Campbell, a friend called by the mother, arrived to take the children to safety.  Campbell made a remark that caused the appellant to “tense up.” After tensing up, the appellant walked toward Campbell with clenched fists appearing “ready to fight.” Seeing this, the officer pointed his Taser at the appellant yelling, “Stop, Police, Taser. Stop, Police, Taser.”
         Sergeant Garcia said, “He stopped. He looked at me, he grinned, took another step towards Campbell and I yelled a third time, ‘Stop, Police, Taser.’” As the appellant advanced, Sergeant Garcia pulled the Taser trigger, the Taser projectiles “went through the appellant’s shirt” but “did not make contact” with his body. At that point the appellant “stopped, looked down at [the projectiles], looked at [Sergeant Garcia] , looked at Campbell, took a step” towards Campbell. Then the appellant turned and walked towards Sergeant Garcia with fists clenched and grinning. Sergeant Garcia considered this advance a threat, he still had his fists clenched and was grinning. At this point the appellant “stopped, looked, grinned and reached down,” then grabbing the Taser wires, closing the Taser’s circuit “and the Taser took effect on him.” The appellant was then safely taken into custody.
          The appeal is based on the argument that the defendant did not vocalize a threat or physically assault the officer. The appellate court agreed with the jury in the district court saying “a rational jury could find that grinning and walking ‘with purpose’ and clenched fists toward [the officer] was a threat by unlawful act.’

Monday, April 6, 2015

State v. Ririe, 2015 UT 37

The Court ruled on the requirements of claim preclusion for offenses arising out of a single criminal episode under the Utah Code.

State v. Ririe, 2015 UT 37
            Bobbie Jo Nadine Ririe was issues citations for an open container offense, and a drunk driving offense. The open container offense went to a justice court, and the defendant paid the fine online. This resulted in a “conviction” which barred any subsequent prosecution on the same offense.
           The defendant attempted to use Utah Code section 76-1-403 which adopts a principle of claim preclusion for certain offenses arising out of a “single criminal episode” and the subsequent prosecution is for an offense that was or should have been tried under Subsection 76-1-402(2).”
           The statute requires that there be an information made about the crime and that a prosecutor be involved. In State v. Prion the Court determined that the offenses are “known to the prosecuting attorney at the time the defendant is arraigned on the first information or indictment.” See State v. Prion, 2012 UT 15, ¶ 30, 274, P.3d 919.

The Court here ruled that the statute does not apply to this case because there was no “information or indictment” on the first offense, and accordingly there was not a “prosecuting attorney” involved. For the first offense the defendant pleaded guilty by using the online system to pay the fine, essentially admitting guilt. Because it was dealt with before an information was filed and before a prosecutor was involved, there is no claim preclusion under this statute.

Wednesday, April 1, 2015

State v. Roberts, 2015 UT 24 - Child Pornography and the Wyoming Toolkit

The use of the Wyoming Toolkit to identify computers with child pornography is permitted and discovery of the Toolkit cannot be compelled. The statute covering the possession of child pornography is Constitutional.

State v. Roberts, 2015 UT 24

      The defendant pleaded guilty to five charges of sexual exploitation of a minor arising from child pornography on his computer. He then appealed four of the court’s pretrial rulings.

On the first, the court ruled that the Wyoming Toolkit (database/algorithmic program to search for child pornography) did not have “the same intrusiveness as thermal imaging” and that “peer-to-peer file sharing is not entitled to a reasonable expectation of privacy.” The Court used 8th Circuit case law (as well as law from the 6th, 9th, 10th, and 11th Circuits) that says “[A] defendant has no reasonable expectation of privacy in files… retrieved from his personal computer where [the defendant] admittedly installed and used LimeWire to make his files accessible to others for file sharing.”

Two of his appeals were regarding the admissibility of the evidence from the Toolkit. The Court ruled that he could not compel discovery of the Wyoming Toolkit database and “the search algorithm process and methodology utilized...” because it was unnecessary for the purpose alleged because the files on the computer were personally verified by law enforcement and “disclosure of investigative techniques and procedures would interfere with law enforcement efforts.”

The Court also determined that the inclusion of the evidence obtained and related to the Wyoming Toolkit was proper because the technology is readily available, it is very accurate, and is not used alone but is part of the overall decision process. The Court also determined that the expert testimony met the URE 702 threshold for admissibility.

He also appealed regarding the Constitutionality of Utah Code 76-5b-201.  The Court ruled that it is Constitutional because it is not overbroad as the classifications that it creates do not “impose any disparate treatment on persons similarly situated.” The classifications are justified by a legitimate government interest in eliminating the market for child pornography, and because the restriction is not overly burdensome. The court looked to Robinson, 2011 UT ¶ 17, 254 P.3d 183, and this case passed the Robinson requirements.