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CFAA – Computer Fraud and Abuse Act

Computer Crime

The Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. 1030, criminalizes a number of activities involving computers.  The CFAA also provides for civil remedies.  Computer crime continues to occupy the front page of the news as hacking, corporate espionage and employee crimes increase in frequency and severity.  Computer crimes can cause serious potential harm and the U.S. Department of Justice has turned its focus on these types of offenses.  In the last couple of years the DOJ has created and expanded the computer crime division in Washington D.C. and many local U.S. Attorney’s offices have create computer crime teams.  As a result, more of these crimes will be discovered and prosecuted.

The white collar criminal defense attorneys at The Henry Law Firm PLLC have significant experience representing individuals and corporations facing Computer Fraud and Abuse Act crimes. We have developed a highly organized team of litigators and experts who have experience representing some of the most high profile computer crime cases in the United States. CFAA cases can carry severe jail sentences, can lead to significant monetary penalties, and are prosecuted domestically and abroad.  In many instances international extradition is sought to bring suspected individuals to the United States for prosecution.  In many instances, Computer Fraud and Abuse Act cases are charged along with bank fraud, wire fraud, identity theft and other federal crimes.

Seven Categories of CFAA Crimes

18 U.S.C. 1030 defines seven categories of prohibited conduct:

18 U.S.C. § 1030(a)(1): Computer Espionage
18 U.S.C. § 1030(a)(2): Unauthorized Access and Obtaining Information
18 U.S.C. § 1030(a)(3): Computer trespassing in a government computer
18 U.S.C. § 1030(a)(4): Committing fraud with computer
18 U.S.C. § 1030(a)(5): Damaging a protected computer (including viruses, worms)
18 U.S.C. § 1030(a)(6): Trafficking in passwords of a government or commerce computer
18 U.S.C. § 1030(a)(7): Threatening to damage a protected computer

The breadth of the statute is significant and Congress continues to discuss adding enforcement provisions to the statute.  As it stands, the statute has been amended multiple times including 1989, 1994, 1996, in 2001 by the USA PATRIOT Act, 2002, and in 2008 by the Identity Theft Enforcement and Restitution Act.  There is an ongoing debate about the viability of the current statute, and multiple arguments exist regarding the definition of certain aspect of the statute.  Those arguments generally focus on constitutional vagueness and an inability by courts to interpret the statute on a consistent basis.

18 U.S.C. § 1030(a)(1): Computer Espionage

Subsection (a)(1) defines the crime of computer espionage and includes significant language from the Espionage Act of 1917, but also covers information related to “Foreign Relations”, not simply “National Defense” like the Espionage Act.  The Department of Justice recognizes that this offense subsection is rarely used, and that prosecution under this subsection requires the prior approval of the National Security Division of the Department of Justice, through the Counterespionage Section.  A violation of this subsection is punishable by up to 10 years in prison, or 20 years in prison for a second conviction.

In order to convict someone of this subsection, the government must prove the following:

  1. Knowingly access computer without or in excess of authorization
  2. obtain national security information
  3. reason to believe the information could injure the U.S. or bene t a foreign nation
  4. willful communication, delivery, transmission (or attempt)ORwillful retention of the information

National security information is defined as information, “that has been determined by the United States Government pursuant to an Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations, or any restricted data, as de ned in paragraph y. of section 11 of the Atomic Energy Act of 1954.”  Very often the information defined is classified information belonging to the Department of Defense or Department of Energy.  But, the government must also prove that the information obtained could injure the United States or benefit a foreign nation.

The government’s ability to show that once the information was obtained it was willfully transmitted can depend on if it can be shown that:

[T]he defendant did any of the following: (a) communicated, delivered, or transmitted national security information, or caused it to be communicated, delivered, or transmitted, to any person not entitled to receive it; (b) attempted to communicate, deliver, or transmit national security information, or attempted to cause it to be communicated, delivered, or transmitted to any person not entitled to receive it; or (c) willfully retained national security information and failed to deliver it to an o cer or employee of the United States who is entitled to receive it in the course of their official duties.

Section 808 of the USA PATRIOT Act added section 1030(a)(1) to the list of crimes in that are considered “Federal Crime[s] of Terrorism” under 18 U.S.C. 2332b(g)(5)(B).  Among other issues, this means that a violation of this subsection can be used as a predicate offense under the RICO statute, may have an extended statute of limitations and could result in an additional term of supervised release.

 

18 U.S.C. § 1030(a)(2): Unauthorized Access and Obtaining Information

Subsection (a)(2) criminalizes the unauthorized access of different kinds of computers and information.  This subsection contains both a misdemeanor and felony alternative.  As a starting point, violations of this subsection begin as misdemeanors unless aggravating factors exist that increase the crime to a felony.  One factor is the value of the information obtained.  While the statute has no minimum monetary threshold for a misdemeanor offense, this subsection does require the information obtained to be valued above $5,000 for the offense to become a felony.

To prove a misdemeanor violation of subsection (a)(2) the government must prove that a person did the following:

  1. Intentionally access a computer
  2. Without or in excess of authorization
  3. Obtain information
  4. From financial records of financial institution or consumer reporting agency OR the U.S. government OR a protected computer

To take the offense from a misdemeanor to a felony, the government must prove the elements listed above in addition to showing that a person:

  1. Committed for commercial advantage or private financial gain OR committed in furtherance of any criminal or tortious act OR the value of the information obtained exceeds $5,000

Unlike subsection (a)(1) which requires knowing access to a computer, this subsection requires intentional access.  In 1986, Congress changed the intent standard to emphasize that “intentional acts of unauthorized access—rather than mistaken, inadvertent, or careless ones— are precisely what the Committee intends to proscribe.” S. Rep. No. 432, 99th Cong., 2d Sess., reprinted in 1986 U.S.C.C.A.N. 2479, 2483.  Thus, a slightly heightened standard for accessing information is required under this subsection.

However, one of the biggest debates surrounding prosecutions under the Computer Fraud and Abuse Act is the meaning and application of “unauthorized access” and “in excess of authorization.”  Unauthorized access is not defined by the statute.  So, courts around the country have been left to interpret the meaning of what constitutes access and when is that access unauthorized.  The statute does define in excess of authorization as, “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. 1030(e)(6).

The legislative history of the CFAA reflects an expectation that persons who “exceed authorized access” will be a person who has some authorization to use the computer or network (i.e. employees, contractors, IT specialists), while persons who access computers “without authorization” will typically be hackers or other outsiders who exploit the system without having been given any authorization at all. See S. Rep. No. 99- 432, at 10 (1986), reprinted in 1986 U.S.C.C.A.N. 2479 (discussing section 1030(a)(5).  However difficult questions arise when courts try to determine whether a person with some authorization to access a computer can ever act “without authorization” with respect to that computer. There is no definitive answer to this question currently, but there is growing consensus that such “insiders” cannot act “without authorization” unless and until their authorization to access the computer is rescinded.  This will typically happen in the context of employee termination or layoffs.

Where the statute permits prosecution for exceeding authorization, the government should be prepared to present evidence proving (a) how the person’s authority to obtain or alter information on the computer was limited, rather than absolute, and (b) how the person exceeded those limitations in obtaining or altering information.  The most significant issue that comes up is whether a particular defendant exceeded authorized access by accessing the computer for an improper purpose where no explicit or implicit restrictions on access existed. The argument typically arises in three ways:

(1) the authorizing party has expressly prohibited the defendant from accessing the computer for the improper purpose; (2) the authorizing party has expressly prohibited the defendant from using the authorizing party’s data for the improper purpose but did not condition the defendant’s computer access on compliance with this prohibition; and (3) the authorizing party did not expressly prohibit the defendant from using its data for the improper purpose, but the defendant was acting against the authorizing party’s interests.

Obviously, the answers to these questions in court opinions become more difficult to distill in questions 2 and 3.  As a result, significant litigation occurs surrounding these issues.

In the next prong, the meaning of “obtaining information” is very broad.  It includes not only downloading or physically copying information, but also includes mere observation or viewing.  Thus, a violation of this subsection can include scenarios where information is accessed and simply looked at, without more.  Information in the context of this statute includes computer programs and other intellectual or intangible property.

In terms of heavily litigated areas of the CFAA, “protected computer” is another area that is heavily contested.  Basically, a protected computer is any computer used in or affecting interstate or foreign commerce and computers used by the federal government and financial institutions.  The computer must only be “used in or affecting” interstate commerce.  The government need not prove that the defendant specifically used that computer in affecting interstate commerce.  Based on case law, it is typically enough that the computer is connected to the Internet to meet the interstate commerce prong. The statute does not require proof that the defendant also used the Internet to access the computer or used the computer to access the Internet.  A protected computer can also include a computer outside the United States as long as it affects interstate commerce.

In terms of one of the aggravating felony factors requiring proof that the information was valued at over $5,000, any reasonable method can be used to establish the value of the information obtained. For example, the research, development, and manufacturing costs or the value of the property “in the thieves’ market” can be used to meet the $5,000 valuation. See, e.g., United States v. Stegora, 849 F.2d 291, 292 (8th Cir. 1988).

18 U.S.C. § 1030(a)(3): Computer trespassing in a government computer

Subsection (a)(3) specifically protects government computers.  To violate this subsection the government must prove:

  1. Intentionally access
  2. without authorization
  3. a nonpublic computer of the U.S. that was exclusively for the use of U.S. or was used by or for U.S.
  4. affected U.S. use of computer

There is no requirement that information be obtained.  It is the act of trespassing alone that is criminalized.  A violation of (a)(3) is a misdemeanor offense.  There is no provision that would increase a violation of this section to a felony.  However, a second conviction of the CFAA under his subsection results in a felony carrying a maximum of 10 years in prison.

A nonpublic computer includes most government computers, but does not include government servers that, by design, are intended for public use.  As an example, a government agency’s database server is probably “nonpublic,” while the same agency’s web servers are “public.”

 

18 U.S.C. § 1030(a)(4): Committing fraud with computer

Subsection (a)(4) is typically charged in conjunction with or in lieu of subsection (a)(2) violations because this subsection carries felony penalties.  The government will also charge (a)(4) violations in addition to wire fraud because this subsection contains an intent to defraud element.  A violation of this section requires the government to prove:

  1. Knowingly access a protected computer without or in excess of authorization
  2. with intent to defraud
  3. access furthered the intended fraud
  4. obtained anything of value, including use if value exceeded $5000

While this subsection of the CFAA significantly resembles the mail and wire fraud statutes, it purposefully includes the use of a computer without authorization or in excess of his authorization to obtain property of another, which property furthers the intended fraud.  In that way it is more narrowly tailored that mail and wire fraud.

“Knowingly and with intent to defraud is not defined by the CFAA.  There is little case law intercepting the meaning, but it seems Congress intended to punish attempts to steal valuable data, not just mere unauthorized access.  However, courts may use the definition of the term “defraud” as it relates to mail and wire fraud cases to inform their decisions.

The requirement that the access must further the intended fraud can be met in a number of ways.  Some examples are deleting or altering computer files to receive some value, obtaining information from a computer that is later used to complete a fraud (i.e. stealing credit card information), or producing falsified records that are later used to commit a fraud (i.e. creating and printing backdated winning lottery tickets).

The government must also prove that the offender obtained money, cash, or a good or service with measurable value. However, two cases that are more dfficult arise (1) when the defendant obtains only the use of a computer, and (2) when the defendant obtains only information.  Legislative history suggests that obtaining some computer data or information, alone, is not valuable enough to qualify.

A violation of (a)(4) is punishable by up to five years in prison and a fine.  A second conviction, like other subsections, is punishable by up to 10 years in prison.

18 U.S.C. § 1030(a)(5): Damaging a protected computer (including viruses, worms)

 

Subsection (a)(5) is perhaps the most widely used subsection of the CFAA.  It prohibits damage to protected computers, and can be violated in a number of ways.  Hackers who access computers and delete or alter files, install malware, initiate denial of service (DDoS) attacks or unleash computer viruses or worms are frequently charged under this subsection.

Subsection (a)(5) has three alternatives.  Each of the subsection, if violated as outlined below without any aggravating factors is a misdemeanor.  However, there are a number of ways that a violation of subsections (a)(5)(A) and (a)(5)(B) can elevate the crime to a felony.  Subsection (a)(5)(A) prohibits:

1. Knowingly cause transmission of a program, information, code, or command

2. intentionally cause damage to protected computer without authorization

Subsection (a)(5)(B) prohibits:

1. Intentionally access a protected computer without authorization

2. recklessly cause damage

Subsection (a)(5)(C) prohibits:

  1. Intentionally access a protected computer without authorization
  2. cause damage
  3. cause loss

A violation of subsection (a)(5)(A) and (a)(5)(B) can be a felony if the offense:

results in loss of $5,000 during 1 year

OR

modifies medical care of a person

OR

causes physical injury

OR

threatens public health or safety

OR

damages systems used by or for government entity for administration of justice, national defense, or national security

OR

damages affect 10 or more protected computers during 1 year

In basic terms, subsection (a)(5)(A) prohibits anyone from intentionally damaging a computer (without authorization) while subsection (a)(5)(B) prohibits unauthorized users from causing damage recklessly and subsection (a)(5)(C) from causing damage (and loss) negligently.

Damaging a computer can have far-reaching effects. For example, a business may not be able to operate if its computer system stops functioning or it may lose sales if it cannot retrieve the data in a database containing customer information. Similarly, if a computer that operates a hospital or power plant stops functioning, people could be injured or die as a result of not receiving emergency services. Such damage to a computer can occur following a successful intrusion, but it may also occur in ways that do not involve the unauthorized access of a computer system.

Subsections (a)(5)(B) and (a)(5)(C), unlike (a)(5)(A) require that the offender “access” the computer without authorization and hold intruders accountable for any damage they cause while intentionally trespassing on a computer, even if they did not intend to cause that damage.  Section 1030(a)(5)(A) requires proof only of the knowing transmission of data, a command, or software to intentionally damage a computer without authorization. The government does not need to prove “access.”

Section (a)(5)(A) prohibits knowingly causing the transmission of a “program, information, code, or command” and intentionally causing damage to a protected computer.  “Program, information, code, or command” broadly covers all transmissions that are capable of having any effect on a computer’s operation.  This can include keystroke commends to change or delete computer files, software packages that alter the operation of a computer (i.e. worms, malware) and even DDoS attacks that flood the network connection of a computer or server taking its operation offline without actually accessing the computer itself.  These acts do not have to be directly sent to the victim computer in order to violate this statute.

Subsections (a)(5)(B) and (a)(5)(C) do not include offenses defined as “exceeds authorized access.”  A violation of these subsection is only available in the prosecution of offenders who are unauthorized to access the computer.

Damage under each prong of (a)(5) requires the proof of damage.  The computer accessed need not be the same computer that was damaged.  “Damage” is defined as “any impairment to the integrity or availability of data, a program, a system, or information.” 18 U.S.C. 1030(e)(8).  Impairment of integrity can include situations where, for example, where an act causes data or information to be deleted or changed (i.e. deleted log files or changed entries in a bank database).  Installing key logger software or altering security software so the intruders changes go undetected can also constitute damage.  Additionally, damage includes making information on a computer unavailable through a DDOS attack or other ways of consuming a computers computational power.

In addition to damage, under (a)(5)(C) the government must also prove loss.  Loss is defined as, “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other consequential damages incurred because of interruption of service.”

In addition to the statutory penalties prescribed for offenses to the CFAA additional enhancements under the federal sentencing guidelines exist specifically for violation of section (a)(5)(A).  Those increases result in an elevated guideline range, which often leads to a  more severe sentence.

 

18 U.S.C. § 1030(a)(6): Trafficking in passwords of a government or commerce computer

 

Violations of (a)(6) prohibit knowingly and with intent to defraud trafficking in computer passwords and similar information when the trafficking affects interstate or foreign commerce, or when the password may be used to access without authorization a computer used by or for the federal government.  Violations of (a)(6) may often be charged with or in addition to violations of 18 U.S.C. 1029, access device fraud.  To convict, the government must prove:

  1. Trafficking
  2. in computer password or similar information
  3. knowingly and with intent to defraud
  4. trafficking affects interstate or foreign commerce OR computer used by or for U.S.

“Traffic” in section 1030(a)(6) is defined by reference to the definition of the same term in 18 U.S.C. 1029, which means “transfer, or otherwise dispose of, to another, or obtain control of with intent to transfer or dispose of.” 18 U.S.C. 1029(e)(5).  Mere possession of passwords without intent to transfer is not prohibited.  Additionally, personal use of any obtained passwords is not a violation of this subsection.  Although, in both scenarios prosecution may be brought under another subsection.  If transferred, the offender need not have the motive to profit from the transaction.

In the context of this provision of the CFAA, a password is broadly defined:

The Committee recognizes that a “password” may actually be comprised of a set of instructions or directions for gaining access to a computer and intends that the word “password” be construed broadly enough to encompass both single words and longer more detailed explanations on how to access others’ computers.  S. Rep. No. 99-432, at 13 (1986), reprinted in 1986 U.S.C.C.A.N. 2479, 2491.

A violation of (a)(6) is a misdemeanor, while a second or subsequent conviction is a felony punishable by up to 10 years in prison.

 

18 U.S.C. § 1030(a)(7): Threatening to damage a protected computer

In basic terms, Subsection (a)(7) prohibits extortion threats involving damage to a computer or involving confidential data.  Threats to access and delete or alter computer information, along with threats of DDoS attacks are covered by this subsection.  To prove a violation of (a)(7) the government must prove:

1. With intent to extort money or any other thing of value

2. transmits in interstate or foreign commerce a communication

3. containing a:

threat to damage a protected computer

OR

threat to obtain or reveal con dential information without or in excess of authorization

OR

demand or request for money or value in relation to damage done in connection with the extortion.

Proving intent to extort does not require proof that the money or thing of value for which the threat issued was obtained.  In other words, the government does not have to prove that the offense was completed by actually obtaining the thing demanded, just the intent to dos suffices.  The threat must be sent in interstate or foreign commerce, but does not have to be sent by computer.  The computer portion comes into play if the threats are targeting, “against computers, computer networks, and their data and programs.”  The threat can be sent by, “mail, a telephone call, electronic mail, or through a computerized messaging service.”

Unlawful threats to the business that owns a computer system, such as threats to reveal flaws in the network or to reveal that the network has been hacked, are not threats to damage a protected computer under this subsection. However, a threat to a business, rather than to a protected computer, might be chargeable as a violation of the Hobbs Act.

Under this subsection the government may charge an offender for the use of ransomware.  In that scenario, an intruder may obtain or encrypt information and refuse to repair or cover the information unless certain demands are met.  In this way, information is held for ransom.  Prosecutors could charge such conduct under (a)(7)(C).

A violation of (a)(7) is punishable by a fine and up to five years in prison.  Any second or subsequent offense is punishable by up to 10 years in prison.

18 U.S.C. § 1030(a)(7): Threatening to damage a protected computer

Attempt and Conspiracy

Attempts to violate 18 U.S.C. 1030 are criminal acts that carry the same statutory penalties as the underlying subsection.  However, the sentencing guidelines call for the reduction of three points from the final calculation in the case of attempt.  This results in a lower  guideline range and a potentially lower sentence.  Thus, an argument that a crime was attempted but not completed may provide some relief in sentencing if it becomes necessary to negotiate a favorable outcome.

In 2008, the Identity Theft Enforcement and Restitution Act amended section 1030(b) to create a new conspiracy offense. It says:

Whoever conspires to commit or attempts to commit an o ense under subsection (a) of this section shall be punished as provided in subsection (c) of this section.

However, Congress has not included a penalty provisions in subsection (c) to specify what penalties apply to offenders who engage in a conspiracy to violate section 1030. See, e.g., 18 U.S.C. 1030(c)(1)(A) (specifying a penalty of 10 years imprisonment for “an attempt to commit an offense punishable under this subparagraph” but not mentioning the penalty for conspiracy to commit such an offense).

Like in a drug conspiracy, the government need not prove an overt act in order to obtain a conviction for a section 1030 conspiracy.  Additionally, impossibility is not a defense.  In other words, the object of the conspiracy may be impossible to achieve, but the agreement to hack the objective is sufficient.

 

How Can We Help

 

Computer Fraud and Abuse Act violations are serious and wide-ranging. In today’s world where almost everyone has a computer and the government and large companies rely heavily of computer systems to operate, the government is pouring enormous resources and manpower into the detection and prosecution of computer crimes. As a result, the number of prosecutions continues to rise in number and complexity.  The computer crime attorneys at The Henry Law Firm PLLC have represented some of the most high profile hacking cases ever brought by the U.S. government. We have significant experience engaging and arguing against the attorneys in the DOJ cybercrime division.  Our attorneys have been cleared in previous cases to deal with classified information. If you have been contacted about or charged with a Computer Fraud and Abuse Act violation, call immediately at 646-820-0224. Early intervention is extremely important. Let the innovative federal criminal defense attorneys at The Henry Law Firm PLLC provide you with the defense you deserve.

Can I Go to Jail For Using Bitcoin?

Bitcoin and similar “crytpocurrencies” have been around for years, but Bitcoin is getting a lot more attention than usual in 2017, primarily based on the fact that such currencies have risen in value six times over since the start of the year, and $6.6 billion in digital currencies are now traded daily. This growth in digital currencies is having some effect on mitigating the cloud of controversy that has hung over Bitcoin and similar currencies, which is partly due to the mysterious origins of Bitcoin (for years its inventor remained anonymous) and the frequent use of Bitcoin in criminal transactions. But, as digital currency grows in popularity, more individuals and businesses are justifiably interested in learning more while understandably cautious about the legality.

Digital Currency Usage Is Not Inherently Illegal

Individuals and businesses are permitted to use Bitcoin and other similar currencies, although some states such as New York do impose licensing requirements on certain parties. Under New York State’s recently promulgated BitLicense rules, parties engaged in the following activities are required to obtain a BitLicense from the state if they are conducting business in New York or with people who reside in New York:

  • Virtual currency transmission
  • Storing, holding, or maintaining custody or control of virtual currency on behalf of others
  • Buying and selling virtual currency as a customer business
  • Performing exchange services as a customer business
  • Controlling, administering, or issuing a virtual currency

Customers and merchants who merely conduct transactions involving digital currency are not required to obtain a license in New York.

Criminal Liability With Bitcoin

The most common situations in the news involving criminal liability for use of Bitcoin and similar currencies is when the currency is used for illegal purposes. Several high-profile individuals have been convicted of crimes in connection with an online marketplace called Silk Road where illegal transactions involving criminal acts for hire, illegal pornography, and drug trafficking were facilitated by use of Bitcoin.

In one case, an entrepreneur who ran a service facilitating Bitcoin transactions pled guilty and served time in federal prison for facilitating the purchase of illegal drugs on Silk Road using Bitcoin. In another case, the founder of Silk Road was sentenced to life in prison for his role in facilitating illegal transactions using Bitcoin, and his trial included evidence of five potential murder-for-hires that he sought out “to protect his burgeoning creation from informants.”

Bitcoin and similar currencies have also been factors in criminal investigations and prosecutions involving fraudulent securities dealings as well as money laundering. Ultimately, many of the same finance-related crimes that can be committed with traditional currency can also be committed with digital currency, although, perhaps ironically given the attraction many of had to the supposed privacy of digital currency, crimes involving digital currency have become easier for law enforcement to investigate in some cases.

When faced with any questions over potential criminal liability for a proposed transaction or one that has already occurred, parties are highly encouraged to speak with an experienced criminal defense attorney regarding their situation.

Contact a New York White Collar Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions, and aggressively pursues appeals on their behalf. To take immediate action to defend your rights in a white collar investigation or prosecution, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

When Do I Have a Right to an Attorney?

As residents of the United States – whether citizens or not – we enjoy the greatest legacy of constitutional rights against government overreach into our personal lives that the world has known, and this legacy is most famously embedded in our constitution’s approach to the rights of people against police and prosecutors. But, in many cases, unless a person is actually aware of what those rights are and how to utilize them, those rights can be wasted. This is especially true with regard to our constitutional right to an attorney. Below we briefly discuss what that means and how you can assert those rights.

Don’t Speak: The Fifth Amendment Right to an Attorney

We often speak of the “right to an attorney” as if it were a single right provided by the constitution, but really there are two distinct but related sources of this right in the constitution. The first is the Fifth Amendment, which states that a person has the right against self-incrimination. What that means is that you cannot be forced to give the government damaging information about yourself that could lead to a conviction.

The federal courts have more fully illustrated what that means by also ruling that a person does not need to provide any information to a government agent questioning him. In addition, the courts have ruled that, when a person tells the police that he wants to speak to an attorney before speaking to police, the police must stop all questioning.

Note that this right does not depend on the police arresting you or “reading you your rights,” and instead a person can invoke this right anytime the police are questioning him. If the police keep questioning, then they are in violation of the law and any statements provided will be inadmissible at trial.

“The Assistance of Counsel”: The Sixth Amendment Right to an Attorney

In addition to the right to a lawyer that attaches to every person’s right against self-incrimination, the Sixth Amendment of the Constitution also guarantees every person “the Assistance of Counsel for his defense” at trial. As with the Fifth Amendment, the federal courts have ruled that this constitutional guarantee means that a defendant not only has a right to an attorney at a criminal trial but also has a right to an attorney during pre-trial proceedings, starting from the time that formal proceedings are brought against the defendant, such as through an indictment.

What this means is that any statement obtained from a defendant by government agents without his attorney present is inadmissible. But, putting this together with the Fifth Amendment rights, what every person should understand is that they always have a right to an attorney when approached by government agents – regardless of whether they have been read their rights, arrested, or formally charged – and speaking to police or other agents without an attorney can result in self-incrimination.

Contact a New York Defense Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions. If you believe you may be under investigation for any state or federal crime, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.  

In What Circumstances Can a Drug Conviction Be Appealed?

Whether you have been convicted in state or federal court for a drug crime, you already know that serious consequences to your liberty and future can follow, including a long prison sentence, steep fines, and lasting damage to your personal and professional reputation. Which makes appealing your drug conviction a hugely important step to consider. Not all convictions involve circumstances providing grounds for appeal, but below are a few common grounds for appealing a drug crime conviction. Consult with an experienced drug crime appeals attorney to learn more about grounds for appeal in your situation, and do not delay as appeals are often extremely time-sensitive.

Improper Police Action in Detaining or Arresting You

The police must have reasonable suspicion that you have violated the law to stop and detain you, whether on the street or in your car. If they did not, and evidence leading to your conviction was collected as a result, you may have grounds to appeal. In addition, police must have probable cause that you committed a crime before arresting you, and failure to do so can be grounds for appeal.

Failure to Provide You With an Attorney

If the police obtained statements from you leading to your conviction while in custodial interrogation (e.g. where you were detained) prior to reading you your Miranda rights, such statements may be thrown out on appeal. In addition, if you asked for a lawyer but did not receive one, or if the police questioned you without a lawyer after you were indicted, you may have grounds to appeal.

Improper Admission or Denial of Evidence

Convictions in drug crimes are often based on the nature of the evidence admitted against you, either in witness statements or physical or documentary evidence. If a judge improperly allowed the admission of evidence against you in violation of procedural rules or your constitutional rights (such as where the police violate your Fourth Amendment rights with an illegal search), this can be grounds for appeal. Likewise, an improper  failure to allow the admission of evidence that would have helped exculpate you may also be grounds for appeal.

Issues with Your Criminal Jury

A number of grounds for appeal can arise with regard to the jury that handed down your conviction. If prosecutors used improper jury selection techniques – such as selecting jurors based on race – this can be grounds for appeal. Also, if jurors engaged in misconduct by failing to follow the judge’s orders, this can also be grounds for appeal.

A Lack of Sufficient Evidence Against You

While a jury makes the determination of guilt against you, the question of your guilt should not even go to the jury if the prosecutors had not presented evidence such that it would be reasonable for a jury to find that you were guilty beyond a reasonable doubt. An appeals attorney can examine your trial record to determine whether this is the case.

Improper Judge Instructions

If the judge improperly instructed the jurors with regard to how they should analyze the facts presented at your trial in the light of the legal structures, this can be grounds for appeal.

Failure of Your Counsel at Trial

Unfortunately, many attorneys are incompetent or at least fail to provide adequate counsel at trial. If this was the case, you may have grounds for appeal.

Improper Sentence

When a judge hands down a sentence after a conviction that is not supported by the facts or the law, you can appeal the sentence.

Contact a New York Federal Drug Crime Appeals Attorney Today

The Henry Law Firm PLLC provides criminal defense to individuals and businesses throughout New York in all state and federal investigations and prosecutions and aggressively pursues appeals on their behalf. To take immediate action to appeal your drug crime conviction, do not hesitate to contact us today to schedule a confidential consultation regarding your matter.

Other Practice Areas

White Collar Defense and Regulatory Enforcement

We defend public officials, executives, board members, securities brokers, traders, law enforcement personnel, and employees facing criminal charges, internal investigations and regulatory enforcement actions.

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Criminal Appeals

Our attorneys have successfully appealed to The United States Supreme Court and other federal appellate courts throughout the country.

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Federal Criminal Defense

We represent individuals who have been charged with or are being investigated for a full range of federal crimes nationwide.

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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship. Prior results do not guarantee future outcomes.