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Last week, in United States v. Agrawal, the Second Circuit upheld a jury’s 2010 conviction of a former Société Générale trader under the Economic Espionage Act (EEA) and the National Stolen Property Act (NSPA). The three-judge panel unanimously affirmed the NSPA conviction, but split on whether the EEA conviction could stand in light of the Second Circuit opinion in United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012), in which the court vacated an ex-Goldman Sachs trader’s convictions under the same statutes for very similar conduct.

During his employment with Société, Samarth Agrawal copied and printed thousands of pages of computer code that his current employer used for a high-frequency trading program. He intended to provide the code to his future employer, another investment firm, and was arrested on the day he was scheduled to begin his new job. Agrawal was indicted by a grand jury and convicted following a jury trial for violating the EEA and NSPA.
Continue Reading Second Circuit Affirms Conviction for Theft of Computer Code Under Federal Criminal Trade Secrets Statutes

On Wednesday August 14, 2013, I will be participating in a free BNA webinar exploring the constitutional and practical dimensions of ESI in federal and state criminal actions. I will be speaking with an experienced group of panelists, including Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Roy Altman, Assistant United States…

In a departure from the recent position staked out by the New Jersey Supreme Court, the Fifth Circuit ruled yesterday in In Re: Application Of The United States Of America For Historical Cell Site Data, Case No. 11-20884, that a warrant is not required for the government to obtain cell site information, which effectively allows the government to identify a person’s location when they make a call with their mobile phone.

In that case, the government filed applications under the Stored Communications Act (“SCA”) (18 U.S.C. §§ 2701-2712) for an order compelling disclosure of 60 days’ worth of historical cell site data for three cell phones. The SCA permits the government to obtain a court order compelling disclosure of information from cell phone service providers if it can show “specific and articulable facts” that the information is “relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). Courts have previously held that “specific and articulable facts” is a lower standard than probable cause. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 315 (3d Cir. 2010).
Continue Reading Divided Fifth Circuit Rules That Government May Obtain Cell Phone Location Information Without A Warrant

In a prior post, I wrote about a criminal trade secrets theft case in which spoliation in related civil litigation was charged as obstruction of justice. I noted that “[t]he prospect of criminal charges for spoliation in civil litigation raises the stakes for civil litigants, particularly where a parallel criminal investigation is a possibility . . . .” Last week, this scenario arose again, as it was announced that Halliburton will plead guilty to a criminal offense based on ESI spoliation that appears to have first arisen in the massive civil litigation over the Deepwater Horizon disaster.

According to the Information and Plea Agreement, following the Deepwater Horizon oil spill, Halliburton employees used a proprietary 3D modeling program to examine aspects of the drilling equipment on two occasions. On both occasions, the employees were told to delete the resulting data and reluctantly did so. Halliburton was a contractor to BP, and these events seem to have been uncovered by BP in the ensuing civil litigation when it became apparent from Halliburton emails that the 3D modeling data once existed but had not been produced. Resolution of this spoliation issue in the civil litigation is still pending. In the meantime, however, the spoliation became the basis for a criminal charge against Halliburton in the parallel criminal investigation by the Department of Justice.
Continue Reading Spoliation of ESI Charged as Criminal Offense Under Computer Fraud and Abuse Act

In the Summer issue of the American Bar Association’s Criminal Justice Magazine, I write about the Ninth Circuit’s watershed en banc ruling in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013), that border agents must have “reasonable suspicion” before conducting forensic searches of laptops at the US border. The decision will…

In conjunction with the 2013 American Bar Association annual State of Criminal Justice, I have published a new article on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including the search and seizure…

We commonly see news stories about law enforcement using social media to investigate, arrest or prosecute criminal defendants. Some of these cases are starting to raise interesting constitutional issues. One such case relates to Cameron D’Ambrosio, a high school senior who was arrested last month for “communicating terrorist threats” through music lyrics that were posted to his Facebook page. As I told Michelle Bowman of Lawyers.com, “D’Ambrosio’s case is an example of the new legal issues that the recent proliferation of social media use is bringing to the attention of courts and the public.”
Continue Reading Music Lyrics Posted to Facebook Results in Criminal Charge: A Trend in the Legal Issues Surrounding Social Media Use

When journalist James Rosen became a suspect in a federal investigation into the leak of classified information, his personal emails were searched and seized by the government. He had no knowledge of this, however, because the warrant applications were filed under seal and the court permitted the government to delay providing notice to him. Although the government argued they had no obligation to notify Mr. Rosen that his email account had been seized, Magistrate Judge John Facciola ordered the government to provide such notice to Mr. Rosen. Judge Facciola’s decision was stayed and ultimately reversed by Chief Judge Royce Lamberth. This case was recently unsealed and provides an opportunity to examine the complicated issues arising from the government’s search and seizure of e-mail communications.
Continue Reading Search Warrants and the ECPA – Why the Government May Be Reading Your E-Mails Without Your Knowledge

Earlier this month, the Internal Revenue Service issued a policy statement declaring that, going forward, it will obtain search warrants when requesting user e-mails in criminal investigations from an internet service provider.  The IRS specifically noted that it would follow the Sixth Circuit decision in U.S. v. Warshak, 631 F.3d 266 (6th Cir. 2010),…

A finding of bad faith is not required for a remedial jury instruction when the government’s negligent destruction of evidence significantly prejudices a defendant, the Ninth Circuit ruled earlier this month in its panel decision in United States v. Sivilla, No. 11-50484 (9th Cir. May 7, 2013) (Noonan, J.). However, bad faith—or a showing that the exculpatory nature of spoliated evidence was apparent to the government—remains necessary for complete dismissal under Arizona v. Youngblood, 488 U.S. 51 (1988).

In June 2010, Victor Hugo Sivilla loaned his Jeep to his sister’s boyfriend for several hours. Two days later, Sivilla was arrested after U.S. border agents found $160,000 worth of cocaine and heroin in his vehicle’s engine manifold. After photographing the Jeep’s engine compartment, the case agent turned the vehicle over to the Department of Homeland Security (DHS) forfeiture section.
Continue Reading Good Faith Not Good Enough? Ninth Circuit May Require a Remedial Jury Instruction After Government Spoliation in a Criminal Case