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3rd Circuit vacates Weev's conviction [pdf]

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Re: 3rd Circuit vacates Weev's conviction [pdf]

#31

Post by dynamic »

dragonwriter wrote: post #24
at-fates-hands wrote: post #19

Earlier quoted context omitted.

To a degree. This only applies for being tried in NJ for the same crime. They're free to charge him in other states and try him without double jeopardy applying: http://criminal.findlaw.com/criminal-rights/charged-twice-in... "But if a single act violates the law of two states, the law treats the act as separate offenses and thus not in conflict with the Double Jeopardy Clause. A second state with a case against a de…

> To a degree. This only applies for being tried in NJ for the same crime. No, because this wasn't a prosecution under NJ law, it was a prosecution under federal law, in which the violation of NJ was an element of the offense. So double jeopardy prevents any further federal prosecution for the same offense, but doesn't prevent prosecution under state law of NJ or other states (even though the court here found NJ law…

You're almost right, but the judgment was vacated, so the prosecutors could bring it again. They won't, though.

Re: 3rd Circuit vacates Weev's conviction [pdf]

#32

Post by dynamic »

lotsofmangos wrote: post #4
rdl wrote: post #3

I'm assuming they're going to just let this die, now, and release weev, and not try again against him. This avoids any serious ruling about CFAA, and preserves the arbitrarily-expansive reading of CFAA to use against other victims. They've already ruined weev's life sufficiently for their purposes.

I'm assuming they're going to just let this die, now, and release weev, and not try again against him. I'd be astonished if they did.

Under these facts (the prosecution theory was a stretch that they don't want tested; the original conviction was caused in part by the defendant's stupid behavior during the first trial; the defendant already served time; the New Jersey federal prosecutors who brought the case can't do it again) the government is very likely to back off.

Re: 3rd Circuit vacates Weev's conviction [pdf]

#33

Post by increduloushulk »

jcomis wrote: post #6

Can someone tell me why they decided to try him in New Jersey in the first place? I understand some of the addresses were in NJ, but that seems like a weak reason. Is there something about NJ computer crime statute that they thought would help the case over other states?

It's less that US decided to try him in New Jersey, and more that the prosecutors who wanted to try him were in New Jersey. If the US Attorney for the Eastern District of Arkansas had wanted a crack at this case, it would not have ended up in NJ.

[Edit] To be clear, there is nothing unique about the New Jersey statute that was used as a sentencing enhancement. As many states do, Arkansas has a similar statute - A.C.A. § 5-41-104 - so the sentencing enhancement could have been applied with Arkansas as the venue. The E. Arkansas US Attorney's Office exercised prosecutorial discretion by not seeking indictment. The New Jersey USAO decided they wanted to prosecute and thought they could make a colorable claim on the issue of venue.

The prosecution tells us much more about the New Jersey USAO than it does about the overall desire of the US Government to prosecute this particular act.

Re: 3rd Circuit vacates Weev's conviction [pdf]

#34

Post by otterley »

It's important to understand here that the judgment was not vacated on grounds that had anything to do with the crime charged -- the Court didn't conclude that he wasn't guilty.

Instead, it was vacated for lack of venue. In other words, he got off on a technicality.

Re: 3rd Circuit vacates Weev's conviction [pdf]

#35

Post by rdl »

dynamic wrote: post #31
dragonwriter wrote: post #24

Earlier quoted context omitted.

> To a degree. This only applies for being tried in NJ for the same crime. No, because this wasn't a prosecution under NJ law, it was a prosecution under federal law, in which the violation of NJ was an element of the offense. So double jeopardy prevents any further federal prosecution for the same offense, but doesn't prevent prosecution under state law of NJ or other states (even though the court here found NJ law…

You're almost right, but the judgment was vacated, so the prosecutors could bring it again. They won't, though.

I wondered why they couldn't use the (relatively small amount of) drugs they found when they raided him in Arkansas to, under Arkansas state law, fuck him somehow.

Re: 3rd Circuit vacates Weev's conviction [pdf]

#36

Post by higherpurpose »

tptacek wrote: post #2

The Appeals Court acknowledged that there were lots of issues at play in the appeal, but that they only had to judge one of them to vacate the conviction. The prosecutors selected New Jersey as the venue for the case, despite the fact that Aurnheimer and his co-conspirators hadn't been located in NJ, and AT&T's servers weren't in NJ. The rationale was that some of the addresses disclosed belonged to NJ residents. Not…

Suits them well. Prosecutors try to abuse their power too much sometimes, especially when they selectively try to "make an example" out of someone. Glad the Appeals Court put them in their place this time.

Re: 3rd Circuit vacates Weev's conviction [pdf]

#37

Post by bradleyjg »

phkn1 wrote: post #16
lotsofmangos wrote: post #4

Earlier quoted context omitted.

I'm assuming they're going to just let this die, now, and release weev, and not try again against him. I'd be astonished if they did.

I'm fairly certain that this would be a clear application of Double Jeopardy clause of the 5th Amendment for at least the majority of charges; in short, this is true because whether or not the case had merit, the prosecution definitely screwed up the proceeding. There may have been a case for CFAA violation (right or wrong), but the prosecutors improperly chose New Jersey as the venue of proceedings. This was a calcu…

When a conviction is vacated (as was the case here) it does not violate the double jeopardy clause to try the accused again for the charge for which he was convicted.

The case on point is United States v. Ball, 163 U.S. 662 (1896)* which rejects the English common law rule that holds the opposite. Frankfurter's dissent in Green v. United States, 355 U.S. 184 (1957)+ is far easier to read and lays out the history well.

* http://scholar.google.com/scholar_case?case=2223826737867114...

+ http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&...

Re: 3rd Circuit vacates Weev's conviction [pdf]

#38

Post by _delirium »

dynamic wrote: post #31
dragonwriter wrote: post #24

Earlier quoted context omitted.

> To a degree. This only applies for being tried in NJ for the same crime. No, because this wasn't a prosecution under NJ law, it was a prosecution under federal law, in which the violation of NJ was an element of the offense. So double jeopardy prevents any further federal prosecution for the same offense, but doesn't prevent prosecution under state law of NJ or other states (even though the court here found NJ law…

You're almost right, but the judgment was vacated, so the prosecutors could bring it again. They won't, though.

Yes, double jeopardy only applies if a criminal trial concluded with an acquittal. In that case the defendant can't be charged a second time. But with cases that basically didn't conclude either way, non-convictions that are also non-acquittals, such as mistrials, vacated convictions, cases thrown out for procedural reasons, etc., the government is free to bring the charges again, on the theory that the first "jeopardy" hasn't really concluded properly, with either an acquittal or a conviction. For example, a case that ends in a hung jury can be re-tried with a new jury; a case thrown out for improper venue can be re-charged in proper venue; a conviction thrown out for ineffective assistance of counsel can be re-tried with better counsel; etc.

Re: 3rd Circuit vacates Weev's conviction [pdf]

#39

Post by amitparikh »

I find it fascinating that the precedent for the decision -- to vacate charges due to improper venue -- is established by the court by going all the way back to the Declaration of Independence and the Constitution.

The proper place of colonial trials was so important to the founding generation that it was listed as a grievance in the Declaration of Independence. See The Declaration of Independence para. 21 (U.S. 1776) (objecting to “transporting us beyond seas to be tried for pretended offences”). It was of such concern that the Constitution of the United States “twice safeguards the defendant’s venue right.” United States v. Cabrales, 524 U.S. 1, 6 (1998). Article III requires that “the Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment further provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.”

Re: 3rd Circuit vacates Weev's conviction [pdf]

#40

Post by wpietri »

dalke wrote: post #22
examancer wrote: post #14

I appreciate the HN desire to link to the source, but as I reader I'd really appreciate submitters link to a good summary/analysis for dense subject matter such as court documents or scientific papers. Ideally they'd chose a summary that itself links to the source.

I prefer the direct link. The document isn't dense. I found it pretty straight-forward, actually. It isn't short, but unless you are a member of the "tl;dr" contingent, the gist is pretty easy to discern. The trick is that things like "Count one charged Auernheimer with conspiracy to violate CFAA § 1030(a)(2)(C) and (c)(2)(B)(ii)" translate to "Count one charged Auernheimer for breaking a law" and things like "See Pe…

We are all members of the tl;dr contingent for most things. In an age of information surplus, it's a survival skill.
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