Blog Jay Leiderman Law

JAY LEIDERMAN AND VIVIEN LESNIK WEISMAN POSTER FROM ANONYMOUS VIDEO

Jay Leiderman and Vivien Lesnik Weisman www.jayleiderman.com and thehackerwars.com are featured in the below picture.  Jay was a participant, a “talking head” in a critically acclaimed documentary that Vivien wrote, directed and and produced.  Through this, they have moved to the forefront of the war on hackers, otherwise knows as the “Nerd Scare.”  Anonymous Video keeps the hope alive by publicizing the plight of incarcerated members of Anonymous, most, if not all of whom are political prisoners.  They were gracious enough to make this poster of Jay Leiderman and Vivien Lesnik Weisman. Jay and Vivien have been vocal critics of the government crackdown on hacktivists.

The documentary is available for free on YouTube here: https://www.youtube.com/watch?v=ku9edEKvGuY.  The video features Andrew Aurenheimer aka weev, Jeremy Hammond and Barrett Brown.  All three are political prisoners – victims of the “Nerd Scare.” Jeremy was sentenced to 10 years for hacking Stratfor, a “private CIA” global intelligence company.  Barrett was sentenced to 63 months for sharing a link to the data dump from Jeremy’s Stratfor hack.  Weev was sentenced to 41 months for exposing a flaw in AT&T’s websites relating to the first iPads by giving the story to Gawker.

IMDB says of The Hacker Wars: “Ripped from international headlines, The Hacker Wars takes you to the front lines of the high-stakes battle over the fate of the Internet, freedom and privacy.”  The movie received a very favorable positive score of 73% on Rotten Tomatoes.  The New York Times said that “the behavior it scrutinizes speaks to the essence of democracy and the very definition of citizenship…”

If you have not seen the Hacker Wars, you should.

Jay Leiderman and Vivien Lesnik Weisman

@AnonymousVideo’s poster of Jay Leiderman and award winning filmmaker Vivien Lesnik Weisman. Jay Leiderman was one of the featured people in Vivien’s film “The Hacker Wars”

 

 

 

 

 

twitter Facebooktwittergoogle_pluslinkedinmail

Defendant had no 4th Amendment reasonable expectation of privacy in his shared folder associated with the P2P (peer-to-peer) network. (312) (425)
The evidence leading to defendant’s arrest was obtained when police used software that targets peer-to-peer file-sharing networks to identify IP addresses associated with known digital files of child pornography. Defendant argued the use of this software violated his Fourth Amendment rights by infringing on his reasonable expectation of privacy on his computer. However, defendant had no reasonable expectation of privacy in his shared folder associated with peer-to-peer network.
People v. Evensen ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2016 D.A.R 10784 (1st Dist. 2016) October 27, 2016 (A145162)

***

What is P2P or peer-to-peer?

P2P

A typical computer network as compared with a P2P (peer-to-peer) network

In its simplest form, a peer-to-peer (P2P) network is created when two or more PCs are connected and share resources without going through a separate server computer. A P2P network can be an ad hoc connection—a couple of computers connected via a Universal Serial Bus (USB) to transfer files. From

Peer-to-peer (P2P) is a decentralized communications model in which each party has the same capabilities and either party can initiate a communication session. Unlike the client/server model, in which the client makes a service request and the server fulfills the request, the P2P network model allows each node to function as both a client and server. from http://searchnetworking.techtarget.com/definition/peer-to-peer

The original peer to peer network was Napster.  Popular P2P networks since then have been LimeWire, uTorrent, BitTorrent, Pando and Emule, to name just a few.

twitter Facebooktwittergoogle_pluslinkedinmail

COUNT 3 MUST BE DISMISSED BECAUSE THE EVIDENCE SHOWS ONLY A MEXICAN MAFIA SOLICITATION UNDER PENAL CODE § 653f(d), NOT A CONSPIRACY.

Penal Code § 653f(d) states, in relevant part:

  • Every person who, with the intent that the crime be committed, solicits another to commit an offense specified in Section 11352, 11379, 11379.5, 11379.6, or 11391 of the Health and Safety Code shall be punished by imprisonment in a county jail not exceeding six months. Every person, who, having been convicted of soliciting another to commit an offense specified in this subdivision, is subsequently convicted of the proscribed solicitation, shall be punished by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170.
  • This subdivision does not apply where the term of imprisonment imposed under other provisions of law would result in a longer term of imprisonment.

The evidence supporting Count 3, an alleged conspiracy to transport, sell, or distribute a controlled substance, supports probable cause for a solicitation under § 653f, not a conspiracy under § 182.  It is “firmly established” that a defendant cannot be prosecuted under a general statue—such as the conspiracy statute—where the conduct alleged is prohibited by a special, more specific statute.[1]  (People v. Mayers (1980) 110 Cal.App.3d 809, 813.)  This rule, sometimes called the Swann-Gilbert rule or the “special over the general” rule is “necessary to prevent a general statute from swallowing up the exceptions contained in specific enactments.”  (Id. at p. 814; People v. Gilbert (1969) 1 Cal.3d 475; People v. Swann (1963) 213 Cal.App.2d 447.)

The companion cases of People v. York (1998) 60 Cal.App.4th 1499, and People v. Sanchez (1998) 60 Cal.App.4th 1490, illustrate application of the Swann-Gilbert rule.  Both York and Sanchez arose out of “reverse sting” operations in which police officers posed as street-level cocaine dealers in areas known for drug activity.  (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.)  Both defendants approached officers participating in the sting and said “rock,” which the officers interpreted as requests to purchase rock cocaine.  (York, supra, 60 Cal.App.4th at p. 1502; Sanchez, supra, 60 Cal.App.4th at p. 1493.)  In York, the defendant also said, “30,” indicating a quantity; the officer told him to wait, and the defendant was subsequently arrested.  (York, supra, 60 Cal.App.4th at p. 1502.)  In Sanchez, the defendant actively bartered with the officer, offering to trade a car stereo and a vest for $30 worth of cocaine.  (Sanchez, supra, 60 Cal.App.4th at p. 1493.)  Both defendants were charged with attempted possession of cocaine in violation of Penal Code § 664 and Health & Safety Code § 11350, and in both cases, the trial court dismissed the charges, reasoning that under the Swann-Gilbert rule, a more specific solicitation statute, § 653f(d), preempted prosecution of the alleged conduct as an attempted drug possession.  (York, supra, 60 Cal.App.4th at pp. 1501-1502; Sanchez, supra, 60 Cal.App.4th at p. 1492.)

 

Conspiracy

The Mexican Mafia Conspiracy to commit assault, drug trafficking, robbery and extortion was the largest ever prosecution in the history of Ventura County, California

 

The Court of Appeals for the Fourth District upheld dismissal of York’s charges.  It reasoned that the crime of attempt requires the alleged acts “go further than mere preparation; they must be such as would ordinarily result in the crime except for the interruption.”  (York, supra, 60 Cal.App.4th at pp. 1505-1506 [internal quotation marks omitted; emphasis in original].)  “Merely soliciting another is not the ‘act or acts’ as would ordinarily result in the crime . . . .”  (Id. at p. 1506.)  For conduct to go beyond solicitation, the prospective narcotics buyer must “at least” display or proffer money.  (Ibid. [emphasis in original].)  The defendant did nothing more than ask for the drugs; he committed the “exact conduct” prohibited by Penal Code § 653f.  (Id. at p. 1503.)  As such, the Swann-Gilbert rule barred prosecution under the more general attempt statute.  (See id. at p. 1504.)

The same court, however, reversed the dismissal of Sanchez’s charges.  It distinguished York on the facts, reasoning that the Sanchez defendant, unlike the York defendant, committed “all the acts which a buyer can do short of actually taking possession of the drugs . . . .”  (Sanchez, supra, 60 Cal.App.4th at p. 1497.)   By negotiating a deal and actually tendering the stereo and vest, the defendant went beyond the specific conduct prohibited by the solicitation statute.  (Ibid.)  His conduct could be punished as an attempted possession under the general attempt statute, § 664.  (Ibid.)

In this case, York controls.  A conspiracy, like an attempt, requires proof of an act in furtherance.  Conduct does not go beyond solicitation—either as an attempt or as a conspiracy—without more than mere preparation or agreement.  And with respect to Count 3 here, the evidence shows nothing more.  Just like the York defendant, Defendant requested a quantity of drugs; just like the undercover officer in York, Arreola agreed.  And unlike in Sanchez, there is no evidence Defendant negotiated a deal or tendered anything in exchange.  In short, like in York, Count 3 alleges the “exact conduct” prohibited by Penal Code § 653f; therefore, the Swann-Gilbert rule bars prosecution as a conspiracy.  Count 3 must be dismissed on that basis.

However, even if that argument fails in light of the newer amendments, there is still the lack of proof inherent in the conspiracy count, as discussed supra.  Indeed, Overt acts #1 through #4 detail a conversation wherein Defendant asks for “3.”  There is no indication that either ever secured “3” nor did they meet or tender anything in exhcange, per the evidence adduced.  The Deputy testified that “3” was code for an amount of drugs, but had no other specifics he could offer.

[1] This is true notwithstanding the newly-enacted subdivision (2) of 647f(d).  That provision only applies where a prosecution under some “other provision of law” would result in harsher punishment.  The thrust of Defendant’s argument here is that there is no “other provision of law” under which he may be punished.  There simply does not exist a conspiracy on these facts.

 

Conspiracy

“A creative and multi-faceted vigorous defense comes from a creative, multifaceted guy.” – Jay Leiderman. Here’s Jay’s recent career as told through pictures.

 

twitter Facebooktwittergoogle_pluslinkedinmail

His trial here in Sacramento in federal court to wrap up soon

This article was published in 2014 and discusses the political ramifications of the heavy-handed crackdown on cybercrime, and how prosecutors fail to exercise reasonable discretion in charging these cases.  Jay Leiderman, who represents Matthew Keys, believes the case never should have ended up in a criminal court.

By  

This article was published on . <= click here for the full article

The trial of former KTXL Fox40 Web producer Matthew Keys in Sacramento federal court appears to be approaching its anticlimax.

The 27-year-old blogger and journalist is accused of helping hackers break into the Los Angeles Times website, where they changed the headline of a story. Keys has even confessed to the substance of the crime, though it hardly qualifies as misdemeanor vandalism. So why make a federal case out of it? Couldn’t Department of Justice resources be better directed elsewhere?

It’s a question of priorities, according toSurviving Cyberwar author Richard Stiennon. “For those in justice, your career path is to get a whole bunch of successful prosecutions and get noticed,” Stiennon says. “So you’re going to go after the low-hanging fruit.”

Matthew Keys

The Matthew Keys case received massive media coverage, including the “Gray Lady” – The New York Times

“The days of ’Let’s haul this kid in front of the judge, scare him and send him home with a warning’ are long since gone,” says attorney Jay Leiderman, who represents Keys. “Prosecutorial discretion is a great thing if it’s exercised, but it doesn’t happen in any meaningful way these days, because prosecutions are so politicized.”

Matthew Keys

Matthew Keys gives an impromptu press conference outside the Federal Courthouse in Sacramento. He is flanked by his lawyers Tor Ekeland and Jay Leiderman

“Any case that has the word ’cyber’ in it brings headlines, because it’s interesting. There’s a degree to which careers are made this way,” says Leiderman. “’Cyber prosecutor blah-blah-blah.’ Nobody reads the ’blah-blah-blah.’ They just go, ’They caught a cybercriminal. Fantastic.’”

twitter Facebooktwittergoogle_pluslinkedinmail

Failure-to-Recall Instruction

At defendant’s competency trial, all the experts agreed that defendant appeared to suffer from impaired memory. Therefore, at the prosecution’s request, the jury was instructed: “The inability to recall facts or information does not in and of itself render a defendant incompetent to stand trial; however, it is a factor to be considered in determining whether a defendant is incompetent to stand trial.” Defendant contends the instruction was erroneous because it might have led the jury to disregard evidence of defendant’s inability to recollect as proof that he was incompetent. We think not.

The source of the instruction was People v. Amador (1988) 200 Cal.App.3d 1449.  In Amador, the court expressed doubts about defendant’s competence and appointed a psychologist to conduct a competency evaluation. The psychologist opined that defendant was incompetent because he suffered permanent amnesia regarding the events surrounding the offense. The trial court concluded that amnesia did not, in and of itself, render defendant legally incompetent to stand trial. On appeal, the Court of Appeal agreed. “The amnesic defendant is no worse off than the defendant who cannot remember where he was on a particular day because of the passage of time, or because he was drunk, drugged, unconscious or asleep at the time of the crime. Moreover, amnesia does not inhibit discussion between attorney and client as to tactical decisions concerning the trial. [Citation.] [¶] Amnesia as to the alleged offense does not totally incapacitate the defense and a defendant is still free to assist counsel in numerous other ways.” (Id. at p. 1454.)

Regarding the propriety of the instruction, the Attorney General argues that if, in Amador, complete and permanent amnesia was found insufficient, by itself, to render defendant incompetent to stand trial, a fortiori the mere inability to recall would not justify a finding of incompetence. Defendant contends that the instruction was incorrect because it may have led the jury to disregard evidence of failure to recall as proof of a mental disorder, like schizophrenia or posttraumatic stress disorder, that did render him incompetent.

To the extent that defendant is arguing that memory impairment, in and of itself, establishes a mental disorder that renders a defendant incompetent, we agree with Amador that such impairment does not, standing alone, establish incompetency. To the extent defendant is arguing that the instruction was inadequate because it did not specifically instruct the jury that impaired memory function could be evidence of a mental disorder that established incompetency, it was incumbent upon defendant to have requested elaboration or clarification of the instruction. (People v. Dunkle, supra, 36 Cal.4th at p. 894; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 122.)

In any event, there is no reasonable likelihood that a jury would have given the instruction the gloss placed on it by defendant. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) The instruction did not tell the jury that the inability to recall cannot be considered in assessing competency, but only that it is not dispositive; indeed, the instruction states that the inability to recall “is a factor to be considered in determining whether a defendant is incompetent to stand trial.”
People v. Jablonski ( 2006) 37 Cal.4th 774

People v. Amador (1988) 200 Cal.App.3d 1449

https://scholar.google.com/scholar_case?case=16862722843607962608&q=200+CA3d+1449&hl=en&as_sdt=4,5

jay leiderman is at the cutting edge of criminal defense in the United States by using technology to defend cases

Attorney Jay Leiderman intently studies his computer. He is always looking for that one case or one piece of evidence that will turn the case around

At Jay Leiderman Law, we have proven results over years of practice, and we are uniquely qualified to represent you in your time of need. We are situated in Ventura, California but we handle cases throughout the state. We have the expertise, experience and skill to handle numerous types of legal matters.  Jay Leiderman is one of only a few CERTIFIED CRIMINAL LAW SPECIALISTS in the area.  He handles every kind of criminal law case. He is famous for defending medical marijuana cases and computer hacking cases, though the bulk of his practice is a generous mix of those cases plus serious felonies and misdemeanors.  Read more at his Wikipedia page: https://en.wikipedia.org/wiki/Jay_Leiderman or his homepage www.jayleiderman.com

 

 

This post does not create an attorney-client relationship and does not constitute legal advice.  Moreover, the law changes over time.  Always consult an attorney before determining what motion s to file and what the current law is as to any particular topic.

Criminal defense attorney and author Jay Leiderman, a California State Bar Certified Criminal Law Specialist can be contacted through the contact page of this website: http://www.jayleiderman.com/htm/contact.php

twitter Facebooktwittergoogle_pluslinkedinmail