3rd Circuit Criminal Law News - U.S. Third Circuit
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"Civil regulatory scheme" or "criminal punishment"? How would you classify a newly instated requirement that all sex offenders wear an ankle monitor at all times, check in with officers at the parole board when needed, and if they violate the rules, be subject to criminal penalties?

If that sounds a lot like parole to you, you're not alone. The New Jersey Supreme Court has held that the state's 2007 Sex Offender Monitoring Act (SOMA) amounts to ex post facto punishment when applied to those who had committed their crimes before the law was enacted.

"SOMA looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the Parole Board," the court explained. "Calling this scheme by another name does not alter its essential nature."

Prosecutor? No need. How about defense counsel? Nah, they can represent themselves.

Meet Judge Louis DiLeo. Back in 2010, in the Linden, New Jersey, municipal court, DiLeo held a "trial" consisting of himself as the judge and prosecutor, the two defendants representing themselves (after denying their request for a public defender), and the police witness, who cross-examined them.

Unsurprisingly, the two convictions were later reversed, Judge DiLeo was reprimanded, and last week, the Third Circuit upheld the district court's holding that he had lost his judicial immunity by going all Judge Dredd on the parties.

If a tree falls in the woods, does it make a sound? And if a person puts child pornography in a shared folder, but no one downloads it, has that person "distributed" child pornography? By a 2-1 margin, the Third Circuit said "no."

David George Husmann was already on supervised release for a child pornography conviction when the probation department was alerted that his computer had accessed pornographic websites. A probation officer visited his house, ultimately seizing four USB flash drives. Husmann also had file-sharing applications installed on his computer. Several of the pornographic files were in a "shared" folder that could be made available to others on the file sharing network.

The so-called automobile exception to the warrant requirement is like Prince: constantly changing, keeping you guessing, but retaining a certain timeless sex appeal with its intricacies and exceptions. (Is it Gant or is it Belton? Only her hairdresser knows for sure.)

Joseph Donahue was staring down the short end of the automobile exception. Donahue was convicted of fraud in U.S. District Court in Pennsylvania. The court ordered him to surrender at a particular time, but he never appeared. U.S. marshals found him in New Mexico in a Ford Mustang. Marshals took the Mustang, searched it, photographed it, and even X-rayed it -- all without a warrant.

There was a guy, a guy we'll keep anonymous (this case does involve Alcoholics Anonymous, after all) who was an insider at the Philadelphia Consolidated Holding Corporation ("PHLY"). In mid-2008, he had a few relapses, and when he returned to AA, his long-time AA confidant, Timothy McGee, asked about the absences. The insider blurted out that he was stressed about work because PHLY was about to sell at three times its book value: $61.50.

McGee, as you have probably already guessed, went out and bought as much of PHLY's stock as possible, flipping the stock after the acquisition announcement for about $290,000 in profit. The SEC noticed the suspicious transactions, asked him about it, and eventually, McGee was convicted of insider trading and perjury under a misappropriation theory.

McGee challenged his conviction, arguing that AA mentorship falls outside of the "recognized dut[ies]" and relationships that can support such a conviction.

It might be one of the least talked about legal issues splitting our nation's courts right now, though we've certainly done our share of babbling about it. It's the resentencing of juvenile lifers, a question that has led to intra-state (federal and state courts conflicting) and interstate splits, with more courts than we can count coming down on both sides of the question since the U.S. Supreme Court's Miller v. Alabama decision in 2012.

What's the issue? Miller held that juveniles must be afforded an "individualized" determination of the offender's age, childhood, life experience, degree of responsibility the youth was capable of exercising, and the chances for rehabilitation -- essentially a heavily scrutinized review that is supposed to limit the amount of life-without-parole sentences.

Now, U.S. District Judge Timothy Savage of the Eastern District of Pennsylvania has joined the discussion, holding that Miller is retroactive -- a holding that is made ever the more interesting by the Pennsylvania Supreme Court's holding late last year that Miller is not retroactive.

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New Jersey's attempt to regulate sports betting is in the news again, but this time it's because the Supreme Court denied certiorari. But, in true New Jersey fashion, a new bill was passed within days based on arguments the Department of Justice ("DoJ") made in its brief to provide a work around.

Will the new law (if it goes into effect) be challenged? You can bet on it.

We apologize for the brief interlude between posts, but we are back and ready to update you on the goings-on in the Third Circuit. The Supreme Court reversed a Third Circuit's opinion in a case that reads like a Lifetime made-for-television movie. Not to be outdone by the Supreme Court, a Pennsylvania county clerk is stirring up more trouble in the same sex marriage scenario.

In less dramatic news (hopefully), Delaware is on its way to getting a new judge on its Supreme Court.

It's been an exciting week in the Third Circuit. Pennsylvania joined the ranks among the more enlightened set of states that recognize same sex marriage.

And in more entertaining news, the hacker whose sentence was recently vacated by the Third Circuit has sent the U.S. Government an invoice for Bitcoins totaling about $13 million.

Don't we all feel modern and cool here in the Third?

We've been watching the progression of Andrew "weev" Auernheimer's trial and appeal and last week, the Third Circuit released its opinion in the hacker's appeal. Though "complex and novel issues that are of great public importance in our increasingly interconnected age" were presented, the case was decided on what some might call a technicality -- venue.

Until Monday, Auernheimer was serving a 41-month sentence for identity theft and conspiracy to commit unauthorized access to a protected computer, in violation of the Computer Fraud and Abuse Act ("CFAA"), when he accessed and leaked 114,000 email addresses of iPad users.

Upon his release, Auernheimer expressed his need for bacon, says Ars Technica.