Author: PJC Law

interpol-investigation

New Federal Case May Help People Challenge Extradition to the US

A recent ruling by the Second Circuit Court of Appeals may mark the beginning of a previously foreclosed avenue for foreign defendants to challenge criminal charges brought against them in the U.S. while remaining in their home country. In United States v. Muriel Bescond, the Second Circuit reversed the lower court’s finding that Bescond, a French national residing in France, was a fugitive simply because she did not waive extradition and submit to U.S. jurisdiction.

Typically, when a foreign national is charged with a crime in the U.S., they are faced with a choice between two lose-lose situations: (1) waive extradition and appear in the U.S. court voluntarily, which is a risk itself and makes challenging U.S. jurisdiction over their person nearly impossible, or (2) challenge extradition from their home country and the U.S.’s jurisdiction to prosecute them, which historically means being labeled a fugitive by the American legal system. Being labeled a fugitive has many far-reaching negative consequences, including being detained pending trial if the defendant is eventually extradited. The fugitive disentitlement doctrine allows federal district courts to insist that a defendant be present in the court’s jurisdiction before the court can resolve any challenges to criminal charges. Most federal courts have applied this doctrine when a foreign defendant tries to challenge the jurisdictional validity of a U.S. indictment from their home country, which operates to bar such a challenge.

Bescond, a French citizen and resident with no ties to the U.S., was indicted in the U.S. for violating the Commodity Exchange Act (“CEA”) by allegedly transmitting false, misleading, and inaccurate commodities reports. The reports were used to calculate the LIBOR benchmark interest rate and by artificially reducing LIBOR rates, pricing of futures contracts traded on the Chicago Mercantile Exchange were affected. When she tried to challenge the indictment on various grounds from France (who would not extradite her) the District Court for the Eastern District of New York held she was a fugitive and declined to consider the merits of her motions under the fugitive disentitlement doctrine.

When Bescond appealed, the Second Circuit not only held that it had jurisdiction under the collateral order doctrine to consider her interlocutory appeal of disentitlement but also held that she was not a fugitive and therefore the disentitlement doctrine could not apply. There were several factors the Court considered in determining whether Bescond was a fugitive: (1) she did not take any actions to distance herself from the U.S. or frustrate arrest; (2) she did not flee from the jurisdiction of the court where the crime was committed or attempt to conceal herself; (3) she did not commit a crime while in the U.S., leave the country, and refuse to return once she learned there was a warrant for her arrest to avoid prosecution, and (4) one of the main basis for her challenge to U.S. jurisdiction—the CEA’s extraterritoriality, meaning whether the law she allegedly broke can even reach her and her conduct in the first place—was nonfrivolous.

Will the Bescond case lead more courts across the U.S. to consider jurisdictional challenges from foreign defendants without submitting to U.S. jurisdiction? Or will the Bescond case be viewed as an outlier based on the facts and circumstances specific to that case? That remains to be seen. The Sixth and Eleventh Circuits have previously held they lacked jurisdiction to consider interlocutory appeals from lower court rulings that disentitled fugitives. The applicability to fugitive status and disentitlement doctrine may eventually lead to a split among the circuits, leaving it up to the Supreme Court to conclusively rule on the issue.

Navigating and resolving criminal charges in the United States from a foreign country is extremely complex. Our firm has many years of experience in helping people challenge international extradition and responding to international criminal investigations in many foreign countries. If you or someone you know has international ties and has been accused of a crime in the U.S., contact us to learn more about these cases and how we may be able to help.

social-media-wiretap

Law Enforcement Now Using Wiretaps for Facebook, Instagram

Investigators in at least one state have sought and received court authorization to wiretap communication apps and social media sites rather than traditional landlines or cell phones. Popular social media websites such as Facebook and Instagram (which is now owned by Facebook) have continually been updated over the years to add new ways people can communicate using the apps. This includes a calling feature and a private or direct message feature.

The use of wiretaps by the government during investigations has been around since the late 1960s and is not a new concept. The reason why wiretaps are such a useful investigative tool is because they allow investigators to intercept others’ communications in real time without having to be near their target. In order for investigators to legally wiretap a person’s phone, house, car, or social media, they must first seek a warrant from an authorized judge. Under federal law, the investigator applying for the warrant is required to explain to the judge details about the crime being investigated, whose communications they want to intercept, what type of communications are to be intercepted (voice, calls, text messages, electronic messages, etc.), why other investigative techniques are insufficient to obtain the evidence investigators want, and much more. Individual states have their own wiretap statutes that allow state court judges to authorize wiretap warrants sought by state investigators. Many state wiretap statutes, including Maryland’s, either mirror or are very similar to the federal wiretap statutes.

Traditionally, wiretaps have been used to intercept phone calls via landline or cell phone or cellular text messages. Maryland investigators, however, have successfully used wiretaps to intercept messages and phone calls exchanged via social media in real time. Targeting individual’s social media accounts and apps implicates serious privacy concerns. An increasing number of people rely on these apps to communicate with others. An annual report submitted by Maryland’s judiciary shows the exact number of wiretaps authorized in 2020, the counties where they were sought, the type of wiretap, the length of the surveillance period, and the type of criminal activity investigators were targeting. Nine out of the total 48 requests were either for a social media account (namely, Instagram) or some other unspecified app.

While this may have worked in Maryland, it’s unclear whether other jurisdictions across the country will follow their lead. Federal investigators in California have already tried at least once and failed. During a 2018 investigation into the gang MS-13, the FBI sought to have Facebook held in contempt of court after they refused to create a “backdoor” in their software to allow agents to intercept calls a target made via the Messenger calling function even though they were already intercepting Messenger texts. The hearing and many court filings were sealed so details regarding arguments made by both sides and why the judge sided with Facebook are limited.

The potential future use of social media wiretap warrants is also tenuous due to the type of encryption utilized while communicating via these platforms. Importantly, the reason it was possible to intercept the communications in the Maryland cases is because Facebook and Instagram communications are not end-to-end encrypted (“E2EE”) by default. If a communication or call is protected by E2EE, authorities cannot intercept or listen in on the communication, even with a warrant. Apple’s FaceTime, WhatsApp, Signal, and Telegram are a few examples of E2EE communication apps, among others. Facebook has stated they intend to implement E2EE by default on direct messages via Facebook Messenger and Instagram as early as 2022.

Criminal investigations where wiretap warrants were utilized are often complex, particularly with constant advancements in technology. Our firm has many years of experience in cases involving the use of wiretaps in federal drug conspiracy, money laundering, and federal fraud cases.  If you or someone you know has been accused of or charged with crimes where wiretaps were used during the investigation, contact us to learn more about these cases and how we may be able to help.

Encrypted-Devices

How Law Enforcement Uses ANOM and Other Encrypted Devices

Anom, which was advertised as “designed by criminals for criminals,” was supposed to be the newest encrypted device service of the criminal underworld. What it turned out of be, however, was a device the FBI used to monitor, investigate, and understand criminal enterprises around the globe at a level never seen before.

In an investigation and takedown unlike any other, the FBI set a honeytrap for alleged criminals looking to maintain anonymity while online conducting or discussing illegal business such as drug distribution, money laundering, and other illegal activity. The concept behind Anom was not new. In the past 5-6 years, transnational criminal organizations (“TCOs”)—those involved in larger-scale drug trafficking, drug distribution, money laundering, and other criminal activity—have turned to hardened encrypted devices as a means to communicate with one another. These devices allow a user to send highly encrypted messages to other devices and store encrypted data on the device, all of which is impenetrable to law enforcement surveillance and detection.

After the FBI and Canadian authorities took down another well-known encrypted device company called Phantom Secure in 2018, the FBI saw an opportunity to fill a void in the market. They recruited an informant who was already in the process of creating the “next generation” of encrypted devices (which he named Anom) and who previously distributed Phantom and other devices, meaning he was already trusted by some TCOs. In exchange for a possible reduced sentence, the informant agreed to give the FBI access to Anom and to distribute Anom to some in his existing network of distributors of encrypted devices, which directly distributed them to TCOs. With this, a new covert investigation named Operation Trojan Shield commenced. Prior to distributing any of the devices, a master encryption key was designed to secretly attach to each message sent using Anom devices which enabled law enforcement to decrypt and store the message as it was being transmitted. It essentially worked like the “Bcc” function of the everyday outgoing email.

The FBI joined forces with Australian Federal Police (“AFP”) to test Anom on TCOs in Australia in a special operation known as Ironside. However, the FBI was not allowed to see the intercepted communications firsthand and was only receiving basic summaries of communications from AFP. Eventually by fall of 2019, distribution of Anom devices had picked up considerably around the world and the FBI made arrangements with an unknown third country to intercept Anom communications firsthand. Believing that their communications were protected from the government using Anom’s impenetrable encryption, users openly discussed narcotics concealment methods, shipping methods, drug deals, money laundering and much more. What users didn’t know was that every text message, photo, audio message, and other electronic communications was being collected and stored on a server in another country that the FBI had access to. The messages would first be sent to an iBot server in another country in real time. There, it was decrypted with the informant’s help, re-encrypted using FBI encryption code, and sent to another FBI controlled iBot server where it was decrypted and analyzed by the FBI.

During this time period, agencies from around the world continued to investigate and take down other encrypted device companies. European authorities announced the dismantlement of EncroChat in July 2020. Another encrypted device company known as Sky Global was taken down by the FBI in March 2021. As these other platforms were taken down, the demand for Anom devices skyrocketed in a short period of time. From October 2019 to June 7, 2021, over 27 million messages were reviewed, recorded, and translated by FBI agents. Over 12,000 Anom encrypted devices were sold and used by more than 300 criminal syndicates operating in over 100 countries, including Italian organized crime, Outlaw Motorcycle Gangs, and multiple international drug trafficking organizations. This unprecedented type of investigation involved the assistance and cooperation of nearly two dozen countries, Europol and other law enforcement agencies worldwide. In the 48 hours prior to the announcement of the indictment of 17 foreign nationals on June 8th, over 500 arrests were made, 700+ locations were searched, and over 36 tons (72,000 pounds) of methamphetamine, cocaine, marijuana, and precursor chemicals were seized around the world with the assistance of nearly 10,000 law enforcement officers. This included planned shipments of cocaine in banana boxes, cans of tuna, refrigerated fish, pineapples, and much more. The 17 foreign nationals were indicted in California on RICO Conspiracy charges for their role in helping distribute Anom devices and administrate Anom’s services.

While there were no United States residents or citizens included in the indictment, the tools used in this investigation could give rise to a number of constitutional and legal challenges in the future. Likely anticipating this, according to a search warrant affidavit related to the case, the FBI sought to prevent violating the rights of U.S. residents by geo-fencing the U.S., meaning that any outgoing messages from the U.S. would not “have any communications” with the second FBI controlled iBot server in another country. However, the affidavit explicitly states AFP was monitoring all communications, including those that came from devices in the U.S. when they were initially intercepted “for threats to life based on [AFP’s] normal policies and procedures.” According to the warrant, there were about 15 ANOM users in the U.S. whose outgoing communications the FBI did not review. Even so, the concern remains that the information collected from these devices may be used to arrest and prosecute U.S. residents and citizens. Based on information known to date, U.S. law enforcement did not seek or obtain a warrant to intercept any communications related to Anom. Even if the FBI was not directly monitoring those in the U.S. using these devices, if information relayed via Anom is indirectly used to form the basis of an investigation and arrest of someone in the U.S., there is likely to be legal challenges for violating U.S. residents/citizen’s rights to privacy.

Criminal investigations and charges related to RICO Conspiracy, the dark web, cyber communications, international drug trafficking, and money laundering are extremely complex. The way the government goes about investigating and charging people with these crimes is increasingly complex as well.

Our firm has many years of experience in cases involving these types of charges and the growing types of electronic evidence the government obtains to try to prove those charges. If you or someone you know has been accused of RICO Conspiracy, drug trafficking, money laundering, or similar crimes, contact us to learn more about these cases and how we may be able to help.

Our Firm Hired to Defend Businessman in Amazon Bribery Case

Our firm was recently retained to represent Hadis Nuhanovic, a businessman from Acworth GA, in a case involving allegations of paying bribes to Amazon employees.

Jess Johnson of our firm is the lead lawyer in the case ,and he was interviewed by the Wall Street Journal about our defense. Jess expressed his concern about a rush to judgment in the case and that he is concerned that the allegations are not “fair or accurate.”

In this case, the government claims or client’s actions were designed to gain unfair competitive advantage on the Amazon Marketplace. The charges in this case include conspiracy to use a communication facility to commit commercial bribery, conspiracy to access a protected computer without authorization, conspiracy to commit wire fraud, and wire fraud.

Specially, the government alleges the bribes were used to achieve four goals on behalf of defendant’s clients including 1) reinstating suspended accounts and product listings, including products removed due to consumer safety concerns or for manipulating product reviews, 2) attacking competitors by posting fake negative reviews or suspending their accounts, 3) misappropriating confidential business information about Amazon’s search engine to help their client’s accounts or hurt competitor accounts, and 4) bypassing Amazon policies that put limits on third-party accounts by finding ways to increase storage in Amazon warehouses, sell products in restricted categories like hazardous, oversized or long-term inventory, and get inside knowledge on how to gain favorable listings.

The government asserts that the defendants worked together to conceal communications through use of popular messaging platforms like WhatsApp, WeChat, Signal, and Telegram.  They allege standard business transactions platforms like bank wires, personal or cashier checks, and online payments services like PayPal, Xoom, Transfast, and MoneyGram were used to route and receive bribes.  Amazon employees supposedly performed transactions that hid identities through use of alias accounts, manipulated product listing reviews, entered false notes to reinstate accounts, and erased shipping information so third-party clients could be reimbursed for inventory Amazon thought was lost in transit.

We look forward to obtaining all the discovery material from the Government and completing our own investigation into the case.

age-discrimination-coronavirus

Can a business discriminate against older employees due to coronavirus concerns?

No, an employer cannot discriminate against older employees due to coronavirus concerns. This means that employers can’t fire, refuse to rehire, or force older employees into jobs with less pay or responsibility. Employers also can’t force older employees to work from home merely because the employee’s age makes him or her more susceptible to the coronavirus.

Employers may not engage in practices that treat older workers differently from younger workers, including requiring older workers to go on involuntary leave or engage in safety precautions that are not required of other employees.  Employees 40 years old and older are protected from this type of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA).

Employers across the country are reeling from disruptions in their workforces caused by the COVID-19 pandemic and stay-at-home orders.  The CDC has identified people who are 65 years and older as being at a high-risk for severe illness from COVID-19.  In order to minimize future disruptions in the workplace, employers will likely attempt to reduce the number of older employees the CDC says are most at risk.  The ADEA bans this type of discrimination, and older employees who experience such discrimination can sue their employers to recover substantial amounts of money.

 What is the ADEA?

The ADEA is a federal law which prohibits employers from discriminating against employees 40 years or older with respect to any term or condition of employment.  An employer may not discriminate with regard to hiring, firing, promoting, terminating, or compensating a job applicant or employee.

The law also makes it unlawful to harass older workers because of their age, and it prohibits retaliation against an employee who opposes employment practices that discriminate based on age. This means that an employer cannot retaliate against an older worker who accuses the employer of age discrimination.

Who is protected by the ADEA?

The ADEA protects employees 40 years and older from age discrimination, but it only applies to employers with 20 or more employees.  In addition to private businesses, the ADEA also applies to local, state, and federal governments.

It should be noted that state and local laws may provide broader protections to workers than the ADEA.  For this reason, employees who feel they have been discriminated against on the basis of age should also look to state and local laws for protection.

While the ADEA prohibits any unequal treatment that negatively affects older employees, it makes an exception if the employer can show a “bona fide occupational qualification.”  This means that an employer can only treat older workers differently when an age limitation is necessary to the performance of the job (e.g., pilots and bus drivers).  For most employees, this exception does not apply.

What types of age discrimination are prohibited under the ADEA?

As the COVID-19 pandemic subsides and stay-at-home orders are lifted, employers will likely be tempted to prevent further disruption in the workplace by reducing the number of employees who are 65 and older.  Some forms of discrimination may be obvious, such as banning older employees from the office and forcing them to telework.  Employers may also require older employees to take involuntary leave to keep them out of the workplace.

The Equal Employment Opportunity Commission (EEOC), which is the federal agency charged with enforcing federal discrimination laws, recently issued guidance on these discriminatory practices.  In its guidance, the EEOC made clear that the ADEA prohibits employers from involuntarily excluding employees who are 65 and older from the workplace, even if the employer does so for “benevolent reasons.”  In other words, employers cannot bar older employees from the workplace simply due to the higher risk of severe illness from the coronavirus.

Employers may also engage in less obvious forms of discrimination which are designed to force older employees to quit or retire.  While this type of subtle discrimination can come in many forms, some employers will likely require older employees to undergo safety precautions that are not required of younger employees.  This may include moving an older employee’s workspace to a more remote location or requiring older employees to interact with other employees over the phone or email.  Employers may also require older employees to wear face masks and gloves while at work or undergo testing to see if they have the coronavirus or antibodies to the coronavirus.  If younger workers are treated differently, the employer would likely be violating the older employee’s rights under the ADEA.

Discrimination in the workplace will take on many forms following the coronavirus pandemic.  An employee who feels that he or she is being treated differently due to age, should contact an employment law attorney to determine if the treatment is in fact discrimination.

What if my employer has discriminated against me due to my age?

The ADEA may allow you to file a lawsuit against your employer and recover a significant amount of money for the harm the employer caused.  An employee who believes that he or she has been mistreated should contact an experienced employment law attorney.  An attorney can assess the facts of your case and determine if your employer has violated the ADEA.

If your attorney agrees that your rights were violated, your attorney will file a charge of discrimination with the EEOC.  The EEOC will investigate your case and then decide if it will intervene in the case or issue a right to sue letter.  If a right to sue letter is issued, you can then file a lawsuit against the employer in federal court.

In many cases, an age discrimination case can be successfully resolved before filing a claim with the EEOC or going to court.  Contact our firm now if you believe that an employer discriminated against you due to concerns about your age and your susceptibility to the coronavirus.

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