Cannibal Cop Not Guilty Of 'Thought Crime'... And Didn't Violate The CFAA

from the still-nutty dept

Earlier this year, we wrote about the crazy, but troubling, case against former NY Police Department officers Gilberto Valle, who has been dubbed "the cannibal cop" for fantasizing about kidnapping, raping, killing and eating around 100 women. A key question in the case: where is the line between fantasizing and... planning out a crime. But, the case drew even more interest from us because after the court basically tossed out all the charges as "thought crimes" that aren't actually illegal, it kept in place the CFAA charge, claiming that Valle violated the anti-hacking law by using the police deatabase to look up information on one of the women he was fantasizing about. Now, that's creepy and disturbing and an abuse of his position in the NYPD... but that does not make it a CFAA violation. It's the nuttiness of this case, and the remaining CFAA charge that resulted in reporter Sarah Jeong referring to the CFAA as "the law that sticks" when all else fails.

The CFAA, again, is the Computer Fraud and Abuse Act, which is supposed to be used against people who hack into others computers. But, as we've covered a whole bunch of times here on Techdirt, these days it's often used to pile on against anyone who does something prosecutors don't like... like using a computer. And that seemed to be the case here. Thankfully, however, the appeals court for the Second Circuit has rejected that argument and cleared Valle of the CFAA violation (it also said that his fantasizing isn't a crime either).

As per usual in CFAA cases, the issue in this case was over the definition of "exceeds authorized access." Prosecutors keep trying to make this mean "does something on a computer that goes against a terms of service or terms of employment." But that super broad definition isn't just dangerous, it basically makes almost everyone a criminal. Thankfully, the court recognized this, though it admits that part of that is just because the law is too ambiguous to make a call. It even looks at the legislative history and notes that it could support either argument, but it needs to be more before allowing the CFAA to be used that way:

At the end of the day, we find support in the legislative history for both Valle’s and the Government’s construction of the statute. But because our review involves a criminal statute, some support is not enough. Where, as here, ordinary tools of legislative construction fail to establish that the Government’s position is unambiguously correct, we are required by the rule of lenity to adopt the interpretation that favors the defendant.

And it notes, in agreeing with a few other key CFAA rulings, that adopting a broader construction of the law could have an "effect on millions of ordinary citizens caused by the statute's unitary definition of 'exceeds authorized access'" (which is quoting the key Nosal decision that rejected a broad definition under the CFAA). Indeed, the court recognizes that even if Valle seems like a particularly terrible person, it must be aware that its decision will impact many others:

Whatever the apparent merits of imposing criminal liability may seem to be in this case, we must construe the statute knowing that our interpretation of “exceeds authorized access” will govern many other situations.... It is precisely for this reason that the rule of lenity requires that Congress, not the courts or the prosecutors, must decide whether conduct is criminal. We, on the other hand, are obligated to “construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals.”... While the Government might promise that it would not prosecute an individual for checking Facebook at work, we are not at liberty to take prosecutors at their word in such matters. A court should not uphold a highly problematic interpretation of a statute merely because the Government promises to use it responsibly....

There is a dissent from Judge Chester Straub, in which he argues that there is no actual ambiguity in the law, and if you violate what your employer says you can do with our computer, well, then you might just be a felon:

In reaching this result, the majority discovers ambiguity in the statutory language where there is none. Under the plain language of the statute, Valle exceeded his authorized access to a federal database in violation of the CFAA.

And, Judge Straub says, if that means that just about everyone is a criminal, well, that's a problem for Congress to solve:

The majority opinion, apparently without irony, concludes that giving effect to the plain language of the statute would somehow “place us in the position of [the] legislature.” ... But where, as here, the statute’s language is plain and unambiguous, the “sole function of the courts is to enforce it according to its terms.” ... It may well be that the CFAA sweeps broadly. But such is a matter for policy debate... and the Congress is free to amend the statute if it chooses

Thankfully, his opinion on this did not become the majority opinion.

Filed Under: cannibal cop, cfaa, gilberto valle, thought crime

Appeals Court Sees Nothing Wrong With The ATF Busting People For Thinking About Robbing Fake Stash Houses

from the fake-criminals...-because-real-criminals-are-just-too-wily dept

The FBI continues to handcraft its own terrorists, ensuring a steady stream of prosecutions, press releases and counterterrorism funding. Meanwhile, the Bureau of Alcohol, Tobacco, Firearms and (more recently) Explosives (ATF) is busy turning unsuspecting males into would-be Omar Littles.

Last year, Mike Masnick covered federal Judge Otis Wright's scathing critique of the ATF's "made-up plot" to turn three people into drug house robbers. Only there was no drug house, no drugs or cash to rob and the ATF had to work overtime just to get the three defendants to agree to carry out this completely fabricated criminal act.

In his dismissal, Wright took aim at the ATF's beyond-questionable tactics.

But for the undercover agent’s imagination in this case there would be no crime. The undercover agent invented his drug-courier persona, the stash house, the 20 to 25 kilograms of cocaine supposedly inside the stash house, the two individuals supposedly guarding the stash, the need to use weapons, and the idea of robbing the stash house. He even provided the putative safe house and getaway van. Dunlap brought little to the table besides his sheer presence and perhaps the hope of being able to obtain some quick cash.

...Despite the Supreme Court’s admonition, the ATF manufactured this entire crime. It did not infiltrate an ongoing criminal enterprise, as there is no indication that Hudson, Whitfield, and Dunlap had any previous criminal affiliation between them.

He also pointed out that, because the criminal enterprise was completely made up, the ATF could say whatever it wanted to in order to maximize the future "wrongdoing" of the men it arrested.

In these stash-house cases, the Government’s “participation in the offense conduct” is what makes them particularly repugnant to the Constitution. Everything about the scheme—and therefore almost everything bearing upon a defendant’s ultimate sentence—hinges solely on the Government’s whim. Why were there not 10 kilograms in the stash house? Or 100? Or 1,000? Why were the guards allegedly armed—necessitating that Defendants bring weapons along with them? All of these factors came down to the ATF and the undercover agent alone. That sort of arbitrariness offends the Constitution’s due-process demands.

The ATF deployed similar tactics against Alex Pedrin. Twenty-year ATF veteran Richard Zayas -- who has carried out "hundreds" of stash house stings -- turned Pedrin into an aspiring stash home invader. Unfortunately for Pedrin, the Ninth Circuit Court of Appeals wasn't as appalled by the ATF's actions as Judge Otis Wright.

Again, a fictitious drug house was presented as a robbery target by Zayas, watched over by "armed guards" and "containing" 40 to 50 kilos of cocaine. Pedrin never got a chance to take down the stash house. The other participants became suspicious it might be a setup. Everyone split up after spotting ATF agents, but were captured shortly thereafter. Pedrin -- who never actually participated in a robbery, much less obtained any drugs -- was charged with "conspiracy to possess with intent to distribute." Another "successful" sting by Agent Zayas, and not a single actual criminal was harmed.

Pedrin didn't raise the entrapment defense, but did challenge his prosecution as being the result of "outrageous government conduct." The court didn't buy it, but Judge John T. Noonan dissented from the majority opinion.

The undisputed and dispositive fact is that Pedrin was not known to the government to be predisposed to raid a stash house at the time when an agent of the ATF proposed this action to him. The law is settled: “Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and induce commission of a crime so that the government may prosecute.” Jacobson v. United States, 503 U.S. 540, 548 (1992). In this case, the ATF originated the criminal design, implanted it in Pedrin’s mind and induced him to commit the crime that the government then prosecuted.

Who has the burden of proof as to the defendant’s disposition? In Jacobson, the Supreme Court provided the answer: “[T]he prosecution must prove beyond reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents.” The timing of the defendant’s disposition is critical: “The sole issue is whether the Government met its burden of proving that petitioner was predisposed to violate the law before the Government intervened.” No showing has been made that Pedrin was known to be predisposed to commit this crime prior to being approached by the agents of ATF. The ATF laid out the entire stash house scheme to him before he had said a single word. The prosecution of his case should be dismissed.

Noonan finishes off his dissent by pointing out what the ATF's long history of "reverse stings" has done for it, and the government it serves. Not content to take down actual criminals engaged in actual criminal activity, the ATF has continually manufactured criminals and criminal activity. Maybe it finds this process generates better results. Maybe it just finds it easier than investigating criminals currently engaged in criminal activity. Whatever the case, Noonan doesn't care for the ATF's takedown of Pedrin and his co-defendants.

As the case now stands, the ATF enhances its reputation by its successful ruse. The government of the United States is diminished by its dependence on the duplicity of the agency. Because of a choice made by Pedrin or his counsel, entrapment was not argued and Jacobson was uncited. By the rules governing litigation we can affirm Pedrin’s conviction. By our commitment to a humane justice, we are called to dismiss the case made by the entrappers.

Pedrin perhaps saw Noonan as a wedge against the appeals court's decision. An en banc hearing was requested to rehear the decision upholding his conviction. The court has declined this opportunity to further examine the ATF's fake drug house operations. Once again, it's Noonan who has a few words to say about the subject.

When the government puts psychological pressure on persons to commit a crime this pressure militates towards a finding of entrapment...

Here, the government [...] relied on psychological tricks to persuade Pedrin to participate in the crime. First, the confidential informant was co-defendant Omar Perez’s uncle, and therefore someone to whom Perez and Pedrin, a close friend of Perez’s, were more likely to succumb than they otherwise might. Second, the informant-uncle peer pressured Pedrin and Perez by telling them that the government agent was “very cool people,” that he, the informant, “want[ed] to do the job,” and that if they could not do it, he would find people who could. Third, the government put time pressure on defendants by telling them the opportunity was available to them for only a limited period. Finally, the government agent eliminated some of the moral qualms defendants may have had about the drug dealers they were planning to rob by telling them that he had “no love” for the dealers and that they were cheating him out of his fair share of the profits from their business. These psychological tactics no less induced defendants to participate in the reverse sting than did the tactics employed by the government in Sorrells, Sherman, or Jacobson.

As to the government's claims that Pedrin was predisposed to commit criminal acts like a stash house robbery, Noonan finds them weak and unsupported by the evidence presented.

Regarding Pedrin’s predisposition to participate in the scheme, not only did the government know nothing about him when they approached him, nothing in his record suggests that he was apt to commit a crime like this one. Pedrin was in and out of the juvenile system, and as an adult served time in jail for several misdemeanors. Pedrin had two felony convictions, one for being “belligerent to officers while being booked into jail,” and another for the crime of endangerment for which he served a prison sentence of a little over one year. Pedrin’s record contains no crimes related to dealing cocaine, robberies, or home invasions.

The only evidence supporting that Pedrin previously committed a stash house robbery is the testimony of co-defendant Terry Bombard who was more than ten years older than twenty-four-year-old Pedrin and who testified against him in exchange for a deal of ten years instead of a life sentence. The government offered no evidence independently corroborating Bombard’s testimony. On these facts, Bombard’s assertions that Pedrin previously committed stash house robberies would likely not be proven beyond a reasonable doubt.

The conviction holds, for something as ethereal as a conspiracy to possess drugs. Apparently, this is the way the ATF fights the Drug War. (And who knows why it's even decided to "enlist," other than the weapons connection…) It steers people not currently engaged in criminal behavior towards criminal acts predicated on nonexistent locations and contraband. Then it serves them up to the justice system and issues press releases. Apparently, the DEA is supposed to catch the actual criminals, even if it seems to be far more interested in lifting cash from the recreational marijuana users it finds traversing the drug corridor known as the United States of America.

Filed Under: 9th circuit, alex pedrin, atf, entrapment, own plot, pre-crime, richard zayas, stash house, thought crime