5 ms·

I'm assuming they're going to just let this die, now, and release weev, and not try again against him. This avoids any serious ruling about CFAA, and preserves

by rdl 13y ago

I'm assuming they're going to just let this die, now, and release weev, and not try again against him. This avoids any serious ruling about CFAA, and preserves the arbitrarily-expansive reading of CFAA to use against other victims. They've already ruined weev's life sufficiently for their purposes.

lotsofmangos 13y ago
I'm assuming they're going to just let this die, now, and release weev, and not try again against him. I'd be astonished if they did.
- phkn1 13y ago
  I'm fairly certain that this would be a clear application of Double Jeopardy clause of the 5th Amendment for at least the majority of charges; in short, this is true because whether or not the case had merit, the prosecution definitely screwed up the proceeding. There may have been a case for CFAA violation (right or wrong), but the prosecutors improperly chose New Jersey as the venue of proceedings. This was a calculated move that had the effect of producing additional state charges, which then resulted in an increased Federal charge for CFAA + State Law violations. That sort of willful "venue shopping" cuts both ways, then; as soon as they try for additional charges, prosecutors now had to conclusively prove that the location of venue was material to the crime at hand, as well as the actions committed. Since Weev &co were not in NJ at the time the act occurred, and neither were the machines they accessed, and there's no conclusive proof of NJ residents being harmed, then the venue of crime committed was incorrect and thus so were the additional charges hung on it. And that is the prosecutorial misstep which was overturned on this appeal, which is subject to jeopardy limitations. http://criminal.findlaw.com/criminal-rights/when-double-jeopardy-protection-ends.html http://criminal.findlaw.com/criminal-rights/when-double-jeop...
  - dynamic 13y ago
    No, because the judgment was vacated. They didn't grant a judgment of acquittal. So the government is still free to bring the case again. Still, the prosecution is really unlikely to do so.
    - caf 13y ago
      If they did, and he was convicted again, would his time served on the vacated conviction be discounted off any sentence? It would seem highly unjust if not.
  - bradleyjg 13y ago
    When a conviction is vacated (as was the case here) it does not violate the double jeopardy clause to try the accused again for the charge for which he was convicted. The case on point is United States v. Ball, 163 U.S. 662 (1896)* which rejects the English common law rule that holds the opposite. Frankfurter's dissent in Green v. United States, 355 U.S. 184 (1957)+ is far easier to read and lays out the history well. * http://scholar.google.com/scholar_case?case=2223826737867114028&hl=en&as_sdt=6&as_vis=1&oi=scholarr http://scholar.google.com/scholar_case?case=2223826737867114... + http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=355&invol=184#200 http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&...
  - danielweber 13y ago
    Maybe the most famous example is Ernesto Miranda, where the Miranda warning gets its name. He had his conviction overturned by SCOTUS. The state then retried him and convicted him. http://en.wikipedia.org/wiki/Ernesto_Miranda http://en.wikipedia.org/wiki/Ernesto_Miranda
- dynamic 13y ago
  Under these facts (the prosecution theory was a stretch that they don't want tested; the original conviction was caused in part by the defendant's stupid behavior during the first trial; the defendant already served time; the New Jersey federal prosecutors who brought the case can't do it again) the government is very likely to back off.
tptacek 13y ago
Didn't their most important charge rely on the "in the commission of a felony" accelerator? Didn't that felony rely on NJ state law? Didn't this case just limit their ability to pull the laws of arbitrary states out of their asses for making similar claims in the future?
- rdl 13y ago
  True. (although they can probably find other felonies to invoke, and maybe there will be an effort to get more state to adopt whacko versions of CFAA...)
hyborg787 13y ago
Does double jeopardy not apply here?
- rdl 13y ago
  Vacation != acquittal.
- at-fates-hands 13y ago
  To a degree. This only applies for being tried in NJ for the same crime. They're free to charge him in other states and try him without double jeopardy applying: http://criminal.findlaw.com/criminal-rights/charged-twice-in-different-states.html http://criminal.findlaw.com/criminal-rights/charged-twice-in... "But if a single act violates the law of two states, the law treats the act as separate offenses and thus not in conflict with the Double Jeopardy Clause. A second state with a case against a defendant may decide that a conviction in the first state is sufficient, so it does not necessarily mean more than one state will bring charges. Therefore, it is up to the discretion of the particular prosecutor, as with other criminal cases." This is known as the Dual Sovereignty Doctrine. This is also what makes hacking such a perilous crime. If you're hacking a large corporation in one state, you may have victims in multiple states. Thus, you can be tried separately for essentially the same crime in multiple states regardless of being acquitted in other states.
  - dragonwriter 13y ago
    > To a degree. This only applies for being tried in NJ for the same crime. No, because this wasn't a prosecution under NJ law, it was a prosecution under federal law, in which the violation of NJ was an element of the offense. So double jeopardy prevents any further federal prosecution for the same offense, but doesn't prevent prosecution under state law of NJ or other states (even though the court here found NJ law did not apply, federal circuit court precedent on state law questions is not binding on state courts.)
    - dynamic 13y ago
      You're almost right, but the judgment was vacated, so the prosecutors could bring it again. They won't, though.
harryh 13y ago
Has anyone made any actual statements one way or the other on the possibility of re-prosecution in a different venue? I agree with your guess, but one never knows.
- joshAg 13y ago
  possibility of re-prosecution? definitely possible. I linked as close as I could, but check out the section on non-final judgements: http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Retrial_after_acquittal http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Retrial_...

by rdl 13y ago

lotsofmangos 13y ago

I'm assuming they're going to just let this die, now, and release weev, and not try again against him. I'd be astonished if they did.

phkn1 13y ago
I'm fairly certain that this would be a clear application of Double Jeopardy clause of the 5th Amendment for at least the majority of charges; in short, this is true because whether or not the case had merit, the prosecution definitely screwed up the proceeding. There may have been a case for CFAA violation (right or wrong), but the prosecutors improperly chose New Jersey as the venue of proceedings. This was a calculated move that had the effect of producing additional state charges, which then resulted in an increased Federal charge for CFAA + State Law violations. That sort of willful "venue shopping" cuts both ways, then; as soon as they try for additional charges, prosecutors now had to conclusively prove that the location of venue was material to the crime at hand, as well as the actions committed. Since Weev &co were not in NJ at the time the act occurred, and neither were the machines they accessed, and there's no conclusive proof of NJ residents being harmed, then the venue of crime committed was incorrect and thus so were the additional charges hung on it. And that is the prosecutorial misstep which was overturned on this appeal, which is subject to jeopardy limitations. http://criminal.findlaw.com/criminal-rights/when-double-jeopardy-protection-ends.html http://criminal.findlaw.com/criminal-rights/when-double-jeop...
- dynamic 13y ago
  No, because the judgment was vacated. They didn't grant a judgment of acquittal. So the government is still free to bring the case again. Still, the prosecution is really unlikely to do so.
  - caf 13y ago
    If they did, and he was convicted again, would his time served on the vacated conviction be discounted off any sentence? It would seem highly unjust if not.
- bradleyjg 13y ago
  When a conviction is vacated (as was the case here) it does not violate the double jeopardy clause to try the accused again for the charge for which he was convicted. The case on point is United States v. Ball, 163 U.S. 662 (1896)* which rejects the English common law rule that holds the opposite. Frankfurter's dissent in Green v. United States, 355 U.S. 184 (1957)+ is far easier to read and lays out the history well. * http://scholar.google.com/scholar_case?case=2223826737867114028&hl=en&as_sdt=6&as_vis=1&oi=scholarr http://scholar.google.com/scholar_case?case=2223826737867114... + http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=355&invol=184#200 http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&...
- danielweber 13y ago
  Maybe the most famous example is Ernesto Miranda, where the Miranda warning gets its name. He had his conviction overturned by SCOTUS. The state then retried him and convicted him. http://en.wikipedia.org/wiki/Ernesto_Miranda http://en.wikipedia.org/wiki/Ernesto_Miranda
dynamic 13y ago
Under these facts (the prosecution theory was a stretch that they don't want tested; the original conviction was caused in part by the defendant's stupid behavior during the first trial; the defendant already served time; the New Jersey federal prosecutors who brought the case can't do it again) the government is very likely to back off.

tptacek 13y ago

Didn't their most important charge rely on the "in the commission of a felony" accelerator? Didn't that felony rely on NJ state law? Didn't this case just limit their ability to pull the laws of arbitrary states out of their asses for making similar claims in the future?

rdl 13y ago
True. (although they can probably find other felonies to invoke, and maybe there will be an effort to get more state to adopt whacko versions of CFAA...)

hyborg787 13y ago

Does double jeopardy not apply here?

rdl 13y ago
Vacation != acquittal.
at-fates-hands 13y ago
To a degree. This only applies for being tried in NJ for the same crime. They're free to charge him in other states and try him without double jeopardy applying: http://criminal.findlaw.com/criminal-rights/charged-twice-in-different-states.html http://criminal.findlaw.com/criminal-rights/charged-twice-in... "But if a single act violates the law of two states, the law treats the act as separate offenses and thus not in conflict with the Double Jeopardy Clause. A second state with a case against a defendant may decide that a conviction in the first state is sufficient, so it does not necessarily mean more than one state will bring charges. Therefore, it is up to the discretion of the particular prosecutor, as with other criminal cases." This is known as the Dual Sovereignty Doctrine. This is also what makes hacking such a perilous crime. If you're hacking a large corporation in one state, you may have victims in multiple states. Thus, you can be tried separately for essentially the same crime in multiple states regardless of being acquitted in other states.
- dragonwriter 13y ago
  > To a degree. This only applies for being tried in NJ for the same crime. No, because this wasn't a prosecution under NJ law, it was a prosecution under federal law, in which the violation of NJ was an element of the offense. So double jeopardy prevents any further federal prosecution for the same offense, but doesn't prevent prosecution under state law of NJ or other states (even though the court here found NJ law did not apply, federal circuit court precedent on state law questions is not binding on state courts.)
  - dynamic 13y ago
    You're almost right, but the judgment was vacated, so the prosecutors could bring it again. They won't, though.

harryh 13y ago

Has anyone made any actual statements one way or the other on the possibility of re-prosecution in a different venue? I agree with your guess, but one never knows.

joshAg 13y ago
possibility of re-prosecution? definitely possible. I linked as close as I could, but check out the section on non-final judgements: http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Retrial_after_acquittal http://en.wikipedia.org/wiki/Double_Jeopardy_Clause#Retrial_...