Elden Law Group

In his blog recently, Libertarian presidential candidate and former governor of New Mexico Gary Johnson calls for an end to the “War on Drugs.” Johnson calls American drug policy one of the biggest wastes and frauds ever perpetrated on the American people – the trillion dollar war on drugs.

“While falsely promising us a safer, more sober society, the war on drugs is bankrupting our state and local coffers and costs the Federal government billions a year,” Johnson says.

The federal government spends an average $15 billion fighting drug crime. “That’s five hundred dollars every second – mostly for possession of marijuana, a relatively harmless drug the effects of which are certainly no worse than alcohol, the sale of which is legal and regulated.” Gov. Johnson says.

Gov. Gary Johnson "End War on Drugs"

Money spent on the War on Drugs in 2010

$15 billion federally
$25 billion on state and local level
Source: Jeffrey A. Miron & Katharine Waldock: “The Budgetary Impact of Drug Prohibition,” 2010

A warrant is required to conduct surveillance on an individual under the Fourth Amendment. This valid warrant protects a person from “unlawful search and seizure.”

But how law enforcement increasingly monitors individuals using GPS tracking devices and other forms of technology is coming under scrutinty.  The U.S. Supreme Court will hear a case in October that could determine our future in how investigators can conduct surveillance using technology, specifically GPS tracking.

When are electronic or other forms of surveillance of an individual considered a search under the Fourth Amendment?  Defense attorneys and privacy rights advocates are closely following this case during the fall term.

The Court could determine that search warrants are not required for electronic or other forms of surveillance. Arkansas-based attorney John Wesley Hall is concerns that this type of ruling could hail “the technological death of the Fourth Amendment.”

Fourth Amendment and Technology

The Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court will be reviewing a 2004 case in which a suspected drug trafficker, Antoine Jones, was closely monitored by FBI agents and officers of the Washington, D.C. Metropolitan Police Department, using various forms of electronic and technological tracking.

Investigators not only used traditional surveillance methods but also placed a fixed camera on a corner near a club that Jones owned at the time, wired his cell phone, using an interceptor and pen register, an electronic device that records outgoing phone numbers, and GPS tracking. The GPS device was installed in Jones’ wife’s Jeep Cherokee.

Specifically how they used the GPS tracking device is the main focus of the case before the Court. Investigators did obtain a warrant covering a 10-day tracking period inside the District of Columbia. The issue stems from the fact that officers installed the device after the 10-day window had expired and where they performed the installation. The GPS installation occurred in a public parking lot in Maryland.

The GPS data provided around the clock surveillance of Jones’ movements over the next month and was significant in tying him to a large amount of drugs, concealed in a house in Maryland.

In October 2005, agents executed search warrants for several locations, including the Jeep and the Maryland stash house. Officers recovered large amounts of cash, and large quantities of powder and crack cocaine. Jones was eventually convicted on a charge of conspiring to sell drugs and was sentenced to life in prison.

Supreme Court to Review Jones' Case

Jones appealed his conviction, arguing that the prolonged GPS surveillance, without a valid warrant, constituted an illegal search.

In 2010, the D.C. Circuit Court of Appeals ruled in Jones’ favor saying that he had a “reasonable expectation” of privacy because all of his movements over a prolonged period were not actually “exposed” to the public.

The U.S. Supreme Court had previously ruled in 1967, in Katz v. U.S., that what a person “knowingly exposes to the public” is not subject to Fourth Amendment protection.

But the GPS 24/7 tracking an individual’s movements contrasts starkly with that exception.

The D.C. court ruled that the type of satellite-guided surveillance used in the Jones case — and available only because of advancements in technology over the last decade — is different from previous cases decided by the courts, including the Supreme Court.

The earlier Court decision declared that individuals had a decreased expectation of privacy in their discrete travels on public roads, and that law enforcement agencies therefore do not need a warrant in order to augment their ability to physically track those discrete movements.

I’ll be following up with the Court’s ruling in October during the fall term. It will be interesting to see how the Court proceeds.

If you’ve ever been stopped at a routine DUI point, random check at the airport or border crossing by car and the authorities have brought out the dogs, you know how nerve-wracking it can be. Even if you’re innocent, there’s something about a German Shepherd with a badge around its neck that is intimidating.

One of the issues facing the use of canines in law enforcement is cueing. Cueing is when the accompanying officer or handler working with a canine officer “cues” the dog to discover or detect narcotics usually out of a pre-existing set of criterion or the evidence of an existing threat.

In my weekly review of news that affects potential clients, I found an interesting article from Animal Law. It’s important to read as an everyday citizen as this could happen to any of us.

I’ve had the experience, especially in the immediate shadow of 911, where canine handling officers were used simply because my traveling case had a “funny smell.” I laugh now because it turned out to be nothing.

I had purchased a brand new briefcase from Staples a few hours before I arrived at LAX and for some strange reason, the TSA employee found something he didn’t like. What in the world was happening, I thought. I’m no drug mule and I have only seen explosives presented in pictures in court or on TV crime shows. But this was within that first month after our national tragedy and everyone was jumpy.

I’m a regular guy, albeit a criminal defense attorney, and I have had zero contact with explosives or illegal drugs. I remember that experience like it was yesterday as two bomb dogs circled me while I sat in a chair. I had my shoes off and was instructed not to move. Intimidating and very off-putting, you bet. Surrounded by four officers and two wildly sniffing dogs, I wondered how a potential client would feel.

I’ve included the article from Animal Law for you to skim. For subsequent and interesting follow up, you should go here.

Cueing has been alleged in cases involving scent identification and narcotics detection, and courts have on occasion accepted cueing arguments when supported by testimony of a defense expert that the dog’s method of indicating was not evident on a videotape of an incident.

Generally, however, courts have declined to accept or reverse on claims of cueing, particularly where other factors establish that a dog has been reliable, such as training and field records or certification by an established organization. Courts have also rejected cueing arguments by accepting that only the handler may be able to reliably say whether a dog has alerted.

Cueing arguments have sometimes failed for procedural reasons, and have sometimes failed because a claim was unsupported by any evidence. A recent Florida Supreme Court case mentioned cueing as a form of handler error.

A 2011 study published in the journal, Animal Cognition, may, however, lead to a more general attack on the use of police detection dogs. The study, written by three faculty members of the University of California at Davis, found that under a specific testing scenario where no drugs or explosives were in the testing environment, most canine teams participating in the study nevertheless alerted to the presence of drugs or explosives when the handlers had reason to believe that a target item had been placed in the environment.

While this study has significant consequences for training and deployment of detection teams, the findings of the study should not be used to support blanket arguments that alerts by trained scent detection dogs do not support probable cause for a subsequent search. Canine alerts are not to be labeled junk science, as has happened in scent identification, another area where cueing is possible.

However, the results of the study should serve as a warning for police and military dog handlers that calling an alert should not be casually made to provide some colorable basis for a search when no other factors support probable cause. A dog’s alert, in other words, should not become an easy means of justifying a search when the handler or an officer involved in the incident has a hunch that something is awry and needs an excuse to take additional action.

After all, if the handler passes his hunch to his or her dog, the dog’s alert is not independently bolstering the officer’s suspicion. Further, the results of the Davis study argue strongly that training and testing should always use negative controls or blanks, replicating situations that handlers will routinely encounter in the field where a target odor may not be present.

When a search subsequent to an alert produces no contraband, handlers often argue that the dog alerted to residual odor, and this may be the case in a given situation. Handlers should be aware, however, that a likely result of the Davis study is that courts may become less inclined to ignore other possibilities, including cueing or that the handler falsely called an alert, and defense attorneys are certainly going to become more aggressive in attacking such evidence.

I’ve been a member as well as a leader of this terrific group for years. The National Association of Crime Defense Lawyers or NACDL works diligently to protect client’s rides across the United States.

Without this group and other important associations, I shudder to think what would happen to all of us. In our pop culture, there is a misconception that the guy on the TV show who has to get a lawyer, must of done something wrong.

You’d be surprised and sickened at how American’s rights are abused every day. That’s why the NACDL exists. Without such groups, laws could be augmented and no one would be able to lift a Finger. We consistently review and test cases within our group so that we can give the best counsel to our clients. You get the benefit of the hard work of this group.

The NACDL meets regularly to review, debate and dissect the law and test it for strengths and weaknesses. Recently, at our 1st Annual West Coast White Collar Conference, we gathered to review a hypothetical company which had a deferred prosecution agreement with SEC/DOJ involving small value facilitation payments which were actually bribes.

Marc Rochon, Mary Carter Andrues, Pamela David, Jeffrey Know and C.E. Rhodes moderated the discussion.

The hypothetical case study involved an email sent to the fictitious company’s auditing committee by a sales agent in Egypt alleging the bribes are taking place.

The following is Darin Thompson’s recount of the test case reviewed by the NACDL. Mr. Thompson is Assistant Federal Public Defender in Cleveland, OH.

Following the disclosure to the audit committee, outside counsel is retained, and (due to the deferred prosecution agreement) DOJ/SEC needs to be informed of the situation.

Mr. Rhodes indicated that the company should retain counsel for the whistleblower in response to hypothetical questions involving that individual’s exposure and rights.

Ms. Andrues, acting as counsel for the hypothetical whistleblower, reviewed the information she would want to have access to, and the potential issues she would need to address, including the relevant law in the foreign country (Egypt) that could impact the investigation.

Mr. Knox indicated that he (acting as hypothetical prosecutor) would potentially provide background information to counsel for the whistleblower. However, both Ms. Andrues and Ms. Davis (acting as hypothetical whistleblower counsel) indicated that it was unlikely they would contact the prosecutor, although both indicated that the call could be useful to obtain the lay of the land.

Mr. Rochon proposed a one-way flow of information from company counsel to counsel for the whistleblower as a way to get the attorney up to speed without compromising company’s counsel’s ability to remain as counsel in the event the whistleblower ends up cooperating with the government.
Another employee, an accountant, also needs counsel, and has given statements indicating involvement and potential additional exposure.

The panel agreed that counsel for that individual might not allow an interview of that client, although the employee will almost certainly be terminated. Ms. Davis indicated that he may be facing termination even after an interview. The panel agreed that if the accountant still wanted to go forward with the interview, he should be thoroughly advised regarding the risks. However, the panel expressed significant doubts that the company would facilitate investigation.

Another hypothetical client was then discussed: in-house counsel who failed to act on the whistleblower’s initial complaints and who’s (at a minimum) negligence appears to have led to this problem. Because this hypothetical client’s version of the events was unsupported by documents or other witnesses, the panel agreed that this individual would clearly not be allowed to be interviewed by anyone, regardless of employment consequences.

During these exchanges, it was repeatedly discussed that the company’s agreement with DOJ/SEC required them to disclose information it discovered, and that this factored into every decision regarding allowing the various clients to be interviewed.

Mr. Rhodes commented regarding employment futures of these individuals. All appear to be unlikely to remain with the company, but the in-house counsel is most likely to be fired immediately. The accountant was deemed likely to be terminated after another interview. The tension between the interests of the company and the individual appeared especially intense in this scenario.

With regard to interview requests by DOJ/SEC, Ms. Andrues and Ms. Davis expressed skepticism regarding the amount of protection and value of proffer letters. In the event that the interviews were to take place, and a recording was required and defense counsel was not going to be given a copy, it was unlikely that the interview would occur. Mr. Knox noted that admissions by officers during interviews would be considered admissions by the company.

In response to a comment from the audience regarding the dangers of conducting investigations in foreign countries, Mr. Rhodes and Mr. Rochon agreed that local legal issues will always influence investigations and should be carefully considered.

I read yet another interesting piece on the failed global drug policy in the Los Angeles Times the other day. I always scratch my head at this notion that the “war on drugs” is winnable.

The Global Commission on Drug Policy is calling for a drastic change in the global drug policy. Essentially, the commission says that after 40 years of failed drug policy, it’s time to seek a new direction.

The Commission includes former U.S. Federal Reserve Chairman Paul Volcker, writers Carlos Fuentes and Mario Vargas Llosa, Virgin Group founder Richard Branson, former U.N. Secretary-General Kofi Annan, and the former presidents of Mexico, Brazil and Colombia.

According to the U.N., there are an estimated 250 million people around the globe using illegal drugs. The Commission’s report says that the global anti-drug policy was crafted 50 years ago and has failed to stem the support or use of illegal drugs. Global marijuana consumption has risen by 8% and cocaine use by 27% between 1998 and 2008.

The Commissions calls for more drug treatment options and says that the costly arresting and imprisoning of tens of millions of farmers, couriers and street dealers is getting worse not better. As more farmers and other drug-related workers or dealers get into the drug business due to a bad economy, the war on drugs goes on unabated.

The report also recommends that governments try new ways of legalizing and regulating drugs, especially marijuana, as a way to deny profits to drug cartels.

More than 38,000 people have died in Mexico in drug-related violence since late 2006, when President Calderon deployed the military in the crackdown on organized crime. Most of the deaths stem from turf wars between rival trafficking gangs.

The Commission asks world governments to end “the criminalization, marginalization and stigmatization of people who use drugs but do no harm to others.”

But the Obama Administration is having nothing of it. The U.S. has given many resources for over 4 years to the Mexican government to aid in the bloody fight against drug cartels. Although the administration has sought out funding for more drug prevention programs ($1.7 billion in the 2012 budget), it doesn’t seem likely that it will agree fully with the Commission.

“The U.S. needs to open a debate,” former Colombian President Cesar Gaviria said. “When you have 40 years of a policy that is not bringing results, you have to ask if it’s time to change it.”

Clearly, we’ve been heading in the wrong direction. As a criminal defense attorney for over 30 years, I’ve seen our prisons fill up with drug offenders, who needed treatment over incarceration, smaller sentences and in some cases, didn’t need to be charged at all.

The war on drugs is a big business and as long as the “warriors” are getting paid, the war will rage on. And now California is being asked to cut its prison population by 35,000 over the next two years. Look for more on that in an upcoming post.

Please do check out the full story in the Los Angeles Times. Interesting reading.

Many times people think the law is a very complicated business on every level. And to be sure, it is very complicated to defend a client depending on the circumstances. But in this blog, I wanted to take the opportunity to talk about the simplest thing you can do if you come under investigation for a white collar crime: Don’t say anything.

White collar crimes are high on federal law enforcement’s list these days and what you don’t know, can surely ruin your day. Let’s say that a federal law enforcement agency has paid you a visit either at work or at home, maybe both. No matter how they say it, you’re now under federal investigation.

It’s not like on Law & Order. TV writers get paid a lot of money to write compelling stuff. In real life, it’s pretty tricky to figure out what to do when, say, the FBI comes calling asking about a fraud case.

There is another thing you should do beyond keeping quiet: call a criminal defense attorney. If they can’t associate you on some level with the offense they are investigation, they can easily corner you into a 18 UCS 1001 charge. The 18 UCS 1001 is lying to a federal agent. It’s a fall back in many cases where the investigators couldn’t make the original charges stick.

I’ve spent over 30 years preventing charges from being filed or greatly reducing the charges brought against my clients, especially with drugs or white collar crimes. I can bring about some pretty satisfactory results if my client knows the facts and there just aren’t that many to remember. Say nothing and call your attorney. Saying nothing greatly prevents the 18 UCS 1001 from coming into play. Later on, I’ll give you some examples of how 18 UCS 1001 was used in some high-profile cases.

If you think you’re being investigated, call a criminal defense attorney immediately. Since I have access to former FBI, DEA and other federal agency personnel, I can tell you what is going to happen next. You’d be surprised at the peace of mind in finding out how cases are built.

I know how intimidating a couple of guys in suits with badges can be. You’re compelled to cooperate and of course, you should always be civil but everything you offer up without your legal counsel there becomes fair game. I can’t emphasize this enough. You have the right to have your counsel there. And you have the right to know just what is going on. This may seem simple but people sometimes do funny things when they are under federal investigation.

From the time federal agents step into your world, they are looking for details to get you on the hook. Don’t panic, be polite and say that you need your attorney there. Even if they insist that it’s just friendly questioning, your job as my prospective client is to get me there as fast as you can.

Agents are trained to be subtle, casual even. You may think you’re chit chatting but believe me; you’re only setting yourself up to be grilled later.

And again, it’s not like the movies. This is real and it’s serious and you are not qualified to begin to know the levels that can lead you astray with a federal investigation with a white collar crime charge.

I’m not trying to be insulting, ever. I always educate my clients about how much of a chance they actually have. I’ve seen cases fall apart or lose a lot of momentum because they were hunting “facts” that just didn’t exist. The reason I’ve seen this is because my client called me from the very moment he knew he was under federal investigation.

I didn’t get where I am with a law degree and a bunch of cases. I’ve gotten here because I have a plan. I always have a plan. I’ve made an intricate study of how federal law enforcement investigates a case. Money laundering, mortgage fraud, complicated cases… I’ve prepared them all with precision based on knowing the key players in the investigation and their next steps, your chances for success and a careful aggressive plan of each step in your defense.

To further emphasize how to behave when under federal investigation, I offer a couple of examples:

Martha Stewart was convicted of lying to a federal investigator and NOT the underlying securities fraud charges that the agents were investigating. So if they can’t make the case stick, they’ll settle for the next best thing.

Barry Bonds got the same treatment when he was under federal investigation for steroid use. In an article on Manteca Bulletin, both cases illustrate that once you are in the hot seat, it’s best to calm down, call your attorney and do nothing until he or she gets there.

You may not like either Stewart or Bonds but this is not the point. If the federal government can do this to them, believe me, they can do this to you. There’s a lot of power and money behind federal investigations of white collar crime. And investigators will settle for getting you on the 18 UCS 1001 charge.

A favorite motto from World War II cautioning military personnel to keep their mouths closed when writing home from the war was: “Loose Lips Sink Ships.” Before you sink your own ship, bring me aboard.

In earlier blog posts, we discussed the reduction of crack cocaine sentences to be more balanced alongside powder cocaine penalties.

More African Americans are charged with harsher sentences for crack cocaine and account for 82% of those convicted of federal crack offenses. Penalties are much lower for white and affluent offenders caught with powder cocaine.

The Fair Sentencing Act of 2010 increases the amount of crack cocaine necessary for a 5-year mandatory minimum sentence from 5 grams to 28 grams.

The amount necessary for the 10-year sentence minimum increased from 50 grams to 280 grams. The bill reduces the gap in sentencing from the previous 100:1 ratio to 18:1. It also repeals the 5-year mandatory minimum sentence for simple crack cocaine possession.

An early release proposal seeks to shave down some crack cocaine sentences to retroactivity comply with this law.

More than 12,000 federal prisoners could be affected but lawmakers say that realistically it will probably be only around 5,500. That number reflects inmates whose crimes did not involve the use of weapons and who do not have lengthy criminal records.

A six-man commission consisting of federal judges, lawyers and academics will vote on the proposal later this month. The proposal further seeks to grant reprieves retroactively to the Fair Sentencing Act.

Qualifying federal prisoners could see an average of three years shaved off of their sentences and could see these changes later this year. Former federal prosecutor and judge, Attorney General Eric H. Holder, Jr. proposed the action.

After the Fair Sentencing Act passed last year, Congress still needed to decide the fate of inmates sentenced under the old law or arrested just before the new law was changed.

The proposal is causing a stir on Capitol Hill after a Supreme Court ruling ordered California to reduce its prison population by more than 30,000 inmates. The Holder proposal would only affect 300 of California’s inmates as state law enforcement has pursued drug gangs over individual dealers.

Because the law was passed last year with strong bipartisan support, it would be a surprise to lawmakers if it were seriously opposed.

Holder was “compelled” to see changes in crack cocaine penalties after years of seeing the devastation and injustice of harsh sentences. “There is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders,” Holder said.

If amendments are approved, they will become affective on November 1 of this year. Inmates may then petition to have their sentences reduced.

For more on this developing story, read the full Los Angeles Time article here.

Permanent Amendments to Federal Sentencing for Crack Cocaine and Firearms

The United States Sentencing Commission announced amendments to the federal sentencing guidelines for drug trafficking offenses, firearms offenses, and other federal offenses.

Federal Sentencing Amendments for Crack Cocaine

The Fair Sentencing Act of 2010 (Pub. L. No. 111–220), signed by President Obama on August 3, 2010 reduces the mandatory minimum penalties for crack cocaine trafficking and eliminates the mandatory minimum sentence for basic possession of crack cocaine.

The Act reduces the statutory penalties for offenses involving manufacturing or trafficking in crack cocaine by raising the required amounts for mandatory minimum imprisonment from 5 grams to 28 grams for a five-year term and from 50 to 280 grams for a 10-year mandatory minimum. See extended blog entry for federal sentencing details regarding this bill.

The Commission will hold a hearing on June 1, 2011, to consider whether cases prior to the bill’s signing will be eligible for re-addressing. The Commission will also seek public comment regarding these changes in federal sentencing.

Federal Sentencing Amendments for Firearms Offenses

The Commission also voted to put into effect an amendment to increase penalties for certain firearms offenses. There will be increased federal sentencing for certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border.

Judge Saris stated, “Firearms trafficking across our borders is a national security issue. The Commission is aware of the view by some that firearms trafficking is fueling drug violence along our southwest border. We sincerely appreciate all of the public input we received from criminal justice stakeholders on this very important issue. The Commission’s decision to increase penalties for these offenses will promote public safety and deterrence.”

Federal Sentencing Changes for Patient Care, Drug Disposal and Other Acts

The Commission also promulgated amendments implementing the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203) and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). You can track these bills and their progress regarding federal sentencing on the Commission’s website at www.ussc.gov.

The Commission must submit its 2010-2011 amendment package to Congress by May 1, 2011. Congress has 180 days to review the amendments, which have a designated effective date of November 1, 2011, unless Congress acts affirmatively to alter or disapprove them.

Permanent Amendments to Federal Sentencing for Crack Cocaine and Firearms

The United States Sentencing Commission announced amendments to the federal sentencing guidelines for drug trafficking offenses, firearms offenses, and other federal offenses.

Federal Sentencing Amendments for Crack Cocaine

The Fair Sentencing Act of 2010 (Pub. L. No. 111–220), signed by President Obama on August 3, 2010 reduces the mandatory minimum penalties for crack cocaine trafficking and eliminates the mandatory minimum sentence for basic possession of crack cocaine.

The Act reduces the statutory penalties for offenses involving manufacturing or trafficking in crack cocaine by raising the required amounts for mandatory minimum imprisonment from 5 grams to 28 grams for a five-year term and from 50 to 280 grams for a 10-year mandatory minimum. See extended blog entry for federal sentencing details regarding this bill.

The Commission will hold a hearing on June 1, 2011, to consider whether cases prior to the bill’s signing will be eligible for re-addressing. The Commission will also seek public comment regarding these changes in federal sentencing.

Federal Sentencing Amendments for Firearms Offenses

The Commission also voted to put into effect an amendment to increase penalties for certain firearms offenses. There will be increased federal sentencing for certain “straw purchasers” of firearms and for offenders who illegally traffic firearms across the United States border.

Judge Saris stated, “Firearms trafficking across our borders is a national security issue. The Commission is aware of the view by some that firearms trafficking is fueling drug violence along our southwest border. We sincerely appreciate all of the public input we received from criminal justice stakeholders on this very important issue. The Commission’s decision to increase penalties for these offenses will promote public safety and deterrence.”

Federal Sentencing Changes for Patient Care, Drug Disposal and Other Acts

The Commission also promulgated amendments implementing the Patient Protection and Affordable Care Act of 2010 (Pub. L. No. 111–148), the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. No. 111–203) and the Secure and Responsible Drug Disposal Act of 2010 (Pub. L. No. 111–273). You can track these bills and their progress regarding federal sentencing on the Commission’s website at www.ussc.gov.

The Commission must submit its 2010-2011 amendment package to Congress by May 1, 2011. Congress has 180 days to review the amendments, which have a designated effective date of November 1, 2011, unless Congress acts affirmatively to alter or disapprove them.

On April 15, dubbed Black Friday by the Internet poker world, the Department of Justice unsealed indictments against 11 Internet poker players and the founders of popular sites such as Poker Stars (originally a Costa Rican-based company that was moved to The Isle of Man), Full Tilt Poker(operated out of Alderney, a French Channel island), and Absolute Poker based in Costa Rica.

When you land on these Internet poker websites, for instance PokerStars, you’ll see this notice: “This domain has been seized by the Federal Bureau of Investigation pursuant to an Arrest Warrant in REM issued by the United States District Court for the Southern District of New York. Pursuant to an agreement between the United States Attorney’s Office for the Southern District of New York and defendant PokerStars, PokerStars may use this Domain Name in the United States to facilitate players’ withdrawals of funds held by PokerStars.”

Using the Unlawful Internet Gambling Enforcement Act of 2006, the Feds seized the Internet poker site’s domain names, froze bank accounts, and indicted several players and site owners for bank fraud, money laundering and illegal gambling.

The indictment alleges that Internet poker companies disguised money they had received from players as payments to online merchants. The Feds are seeking convictions and subsequently civil money laundering penalties of nearly $3 billion. Additionally, a federal judge issued a restraining order against 76 bank accounts in 14 countries that the Internet poker companies had used.

Federal Internet poker laws are about as confusing as medical marijuana laws and make as much sense as Prohibition. Some laws allow Internet poker, some laws promote it and others ban it. You can run an online gambling business to bet on horse races, but you can’t bet on poker. Federal Internet poker laws are flawed at best. Instead of collecting taxes on the average $30 billion that is bet annually in the U.S. on online poker sites mainly from offshore-operated companies, the government is investing tax dollars in an attempt to shut down Internet poker.

Internet poker and Its Unconstitutional Accuser

Millions of American Internet poker players play the game to practice their skills and there has be a measure of skill to win. The money spent on Internet poker could be used to alleviate national debt, yet lawmakers go after Internet poker. Texas Hold ‘Em, a wildly popular game for Internet poker players, is not taxed. This makes no sense.

The 2006 law is based in some outdated notions of virtue. Why not let licensed land-based companies operate Internet poker sites adherent to reasonable updated law? Because our federal gambling laws make Internet poker illegal but allow for other types of online gambling, it would appear that the Unlawful Internet Gambling Enforcement Act is unconstitutional.
We don’t need more charges of bank fraud and money laundering against poker companies. We should examine the very law the Justice Department used on Black Friday.

The Unlawful Internet Gambling Enforcement Act bars banks from processing payments to offshore Internet poker sites.

By questioning the constitutional validity of this law, we come closer to figuring out the absurdity of Black Friday and what is means for Internet poker. Further to the point, if we taxed the nearly $30 billion in revenue from Internet poker instead of garnering a mere $3 billion in forfeitures, we could turn a popular past time into a valuable financial resource for the country.

For 25 years, crack cocaine sentencing has been harsh and excessive. Advocates and lawmakers have been lobbying to reduce sentencing to reasonable numbers. The assertion by federal law that crack cocaine is more dangerous than powder cocaine is clearly a matter of seeing drug use along racial and economic lines.

“The 1986 and 1988 Anti-Drug Abuse Act established excessive mandatory penalties for crack cocaine that were the harshest ever adopted for low-level drug offenses and created drastically different penalty structures for crack cocaine compared to powder cocaine, which are pharmacologically identical substances.” — The Sentencing Project

Instead of prevention and treatment programs for drug users and abusers, these laws have filled prisons with inmates serving extremely long sentences for a small amount of crack cocaine. Taxpayers are footing the bill for these lengthy incarcerations as the effect of crack cocaine sentencing has had far-reaching effects on families and communities across the United States.

The Turning of the Tide In Crack Cocaine Sentencing

Thankfully reform, albeit slow, moves forward. On March 17, 2010, the Senate approved a bill to reduce crack cocaine sentencing. This legislation or The Fair Sentencing Act of 2010 increases the amount of crack cocaine necessary for a 5-year mandatory minimum sentence from 5 grams to 28 grams. The amount necessary for the 10-year sentence minimum increased from 50 grams to 280 grams. The bill reduces the gap in sentencing from the previous 100:1 ratio to 18:1. It also repeals the 5-year mandatory minimum sentence for simple crack cocaine possession.

The Senate and the House each have versions of a new bill requiring further crack cocaine sentencing reduction. The Senate version reduces the possibility that final legislation will equalize penalties for the two drugs. The full House must now vote on either version.

The Senate bill reduces average crack cocaine sentencing by more than 25%. Neither bills give an effective date nor do they address previous crack cocaine sentencing. The legislation would become effective at the President’s signing and unless previous crack cocaine sentencing is addressed, normally the bill would only affect sentences on and after the signature date.

The unfairness of the Anti-Drug Abuse Acts has drawn the attention of policymakers, judges, the National Association of Criminal Defense Lawyers (NACDL) and the U.S. Sentencing Commission. After nearly a decade of injustice in crack cocaine sentencing, Congress should make the right decision.