
3rd Circuit vacates Weev's conviction [pdf] - rdl
http://pdfserver.amlaw.com/nlj/auernheimer-op-usca3.pdf
======
tptacek
The Appeals Court acknowledged that there were lots of issues at play in the
appeal, but that they only had to judge one of them to vacate the conviction.

The prosecutors selected New Jersey as the venue for the case, despite the
fact that Aurnheimer and his co-conspirators hadn't been located in NJ, and
AT&T's servers weren't in NJ. The rationale was that some of the addresses
disclosed belonged to NJ residents.

Not only did they select a tenuous venue, but they allowed the court to
sidestep the issue during jury instructions. The jury decides whether venue is
correct. Because venue was important to the case, the jury was supposed to
receive instructions on how to evaluate the validity of the venue. But the
trial court decided that venue had been adequately established.

" _The venue error in this case is not harmless because there was no evidence
that any of the essential conduct elements occurred in New Jersey. If
Auernheimer’s jury had been properly instructed on venue, it could not have
returned a guilty verdict_ "

One reason this matters is that the CFAA charges that were applied to
Auernheimer depended in part on NJ state law. In fact, the specifics of NJ
state computer crime law might have been the reasons prosecutors stretched
venue so much to get the case located there. But with the Appeals Court
determining that the NJ venue was invalid, the whole framework of the case
falls apart.

~~~
300bps
_The rationale was that some of the addresses disclosed belonged to NJ
residents._

I guess he should be tried in every state and several other countries then to
account for the 114,000 people that were part of the list.

Reading the appellate ruling, U.S. District Judge Susan Wigenton's decisions
make her seem like she's off her rocker. Beyond that, it's amazing how he was
treated in court by the judge:

 _As [the prosecutor] spoke, a U.S. marshal approached Auernheimer from behind
and told him to put away his phone. Other marshals pushed his head against the
defense table and handcuffed him._

 _[the judge] declared a recess, and the marshals escorted Auernheimer to a
side room. When he returned a few minutes later, he was shackled, with a chain
around his waist and handcuffs attached to the chain._

Sentenced to 3.5 years in jail for loading a URL from a publicly accessible
web page that required no login, no password.

~~~
dobbsbob
Though his testimony was hilarious, as the trial was an obvious farce "What do
you do for a living?" "P/T disaster response" he actually talked himself into
a bogus conviction by handing the prosecutor everything needed to twist his
statements around to the jury. His trial is a good lesson in not
underestimating the skill of a lawyer to manipulate banal statements into
perceived admissions of guilt or intent. He shouldn't have testified at all
and just let some expert explain there's nothing illegal about what he was
accused of. He rambled about SIM cloning and everything basically playing into
their hands.

~~~
late2part
I don't think this can be publicized enough:

[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

"An law school professor and former criminal defense attorney tells you why
you should never agree to be interviewed by the police. "

~~~
Chirael
Yes, and it's entertaining too - very well done

------
rdl
Does weev get any compensation?

I get that he's now retroactively never been convicted of a felony, but he was
in prison focused on protecting his corn bread for a couple years. Clearly
this affects his employability, as well as his general happiness, having been
deprived of both liberty and safe corn bread for a while.

Civil suit against ATT? Wrongful prosecution against the feds?

~~~
unreal37
After reading the judgement, seems like the right decision was made to
overturn the conviction based on venue.

But compensation? Come on. He would still be convicted of some of the computer
hacking charges in other states.

Didn't his co-accused plead guilty to those charges? What happens to him?

~~~
Nursie
Personally I think that everyone who ever has a conviction overturned should
be compensated for all time lost and costs incurred.

Not because the state would be dissuaded from pushing edge-cases but because
we, the people, have robbed someone of part of their life. We should make it
right.

~~~
aroch
This wasn't just an overturned verdict, this was a vacation due to process
which is different.

Most states offer compensation packages to those wrongly incarcerated. Its
usually a percentage of your expected income if you hadn't been put in jail

~~~
beambot
A _percentage_!? That doesn't even come close. Perhaps a _multiple_ is more
fitting.

~~~
jmathai
1000%

~~~
bronson
Looking to create a new profession?

------
amitparikh
I find it fascinating that the precedent for the decision -- to vacate charges
due to improper venue -- is established by the court by going all the way back
to the Declaration of Independence and the Constitution.

 _The proper place of colonial trials was so important to the founding
generation that it was listed as a grievance in the Declaration of
Independence. See The Declaration of Independence para. 21 (U.S. 1776)
(objecting to “transporting us beyond seas to be tried for pretended
offences”). It was of such concern that the Constitution of the United States
“twice safeguards the defendant’s venue right.” United States v. Cabrales, 524
U.S. 1, 6 (1998). Article III requires that “the Trial of all Crimes . . .
shall be held in the State where the said Crimes shall have been committed.”
U.S. Const. art. III, § 2, cl. 3. The Sixth Amendment further provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed.”_

~~~
ryandrake
How does this square with the jurisdiction shopping that patent trolls do, to
their great advantage. Somehow, everyone who infringes on a patent does so
while in the eastern district of Texas?

~~~
Sanddancer
Most of the patent trolling companies set up a division or the like in eastern
Texas in order to establish venue.

~~~
sitkack
But those are scams, they don't actually _do_ business there. Those suits
should be thrown out.

------
rdl
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.

~~~
hyborg787
Does double jeopardy not apply here?

~~~
at-fates-hands
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...](http://criminal.findlaw.com/criminal-rights/charged-twice-in-different-
states.html)

"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
> 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
You're almost right, but the judgment was vacated, so the prosecutors could
bring it again. They won't, though.

~~~
rdl
I wondered why they couldn't use the (relatively small amount of) drugs they
found when they raided him in Arkansas to, under Arkansas state law, fuck him
somehow.

~~~
jrockway
Because the federal prosecutors don't get a promotion when someone is charged
with a state crime.

------
anonbanker
I like to refer to this as lawyers "pretending to fail"; See, they are being
told by their superiors to press a position officially, but to cripple it
technically so that it never survives appeal. This allows eventual remedy for
the accused, in the form of appeal, while allowing the State actors to promote
their high conviction rates for cyber criminals during/post-trial. The state's
main interest in the publicity of the case is to send a message to the public
that cyber crime is taken very seriously, with the aim of deterring future
activities of a similar nature by copycats. Weev's case being vacated should
garner far less attention than the arrest and trial. Everyone but the accused
himself benefits from the case, regardless of outcome.

As the case is vacated, Weev could still be jailed, dependant on whether or
not his legal representation files a motion in the lower court to release him;
another classic case of "pretending to fail".

------
PhasmaFelis
Any bets on how long 'til he manages to cop a legit conviction for criminal
harassment? He'd been lucky so far in that most of his trolling victims just
wanted to hide under a rock rather than press charges.

------
examancer
I appreciate the HN desire to link to the source, but as I reader I'd really
appreciate submitters link to a good summary/analysis for dense subject matter
such as court documents or scientific papers. Ideally they'd chose a summary
that itself links to the source.

~~~
dalke
I prefer the direct link.

The document isn't dense. I found it pretty straight-forward, actually. It
isn't short, but unless you are a member of the "tl;dr" contingent, the gist
is pretty easy to discern.

The trick is that things like "Count one charged Auernheimer with conspiracy
to violate CFAA § 1030(a)(2)(C) and (c)(2)(B)(ii)" translate to "Count one
charged Auernheimer for breaking a law" and things like "See Perez, 280 F.3d
at 329; see also Rodriguez-Moreno, 526 U.S. at 281-82 (citing Hyde, 225 U.S.
at 356-67)" are references that you don't need to resolve in order to
understand.

It also helps if you can translate things like "It is far from clear that this
Court has ever “adopted” this test. We have mentioned it only once." into "oh
no you didn't".

~~~
mpclark
Heavens no! I'd much rather have a good summary than dive into documents
written for domain specialists by other domain specialists.

For legal documents, research studies, academic papers and the like the
cognitive load associated with wading through the original usually by far
outweighs the marginal return.

The caveat is, of course, that one must be careful with one's choice of
summariser.

~~~
dalke
Did you find this court judgment "dense"? I didn't. I even found the
judgment's summary of the case against weev to be clear and informative, and
others here agree.

I encourage you to read court decisions, research studies, and academic
papers. Many are clear, insightful, and educational. It's also true that many
are not, but I'm astonished by the number of people who don't even try.

At the very least, it's hard to judge the summarizer without sometimes
comparing summaries to the primary literature.

------
jcomis
Can someone tell me why they decided to try him in New Jersey in the first
place? I understand some of the addresses were in NJ, but that seems like a
weak reason. Is there something about NJ computer crime statute that they
thought would help the case over other states?

~~~
increduloushulk
It's less that US decided to try him in New Jersey, and more that the
prosecutors who wanted to try him were in New Jersey. If the US Attorney for
the Eastern District of Arkansas had wanted a crack at this case, it would not
have ended up in NJ.

[Edit] To be clear, there is nothing unique about the New Jersey statute that
was used as a sentencing enhancement. As many states do, Arkansas has a
similar statute - A.C.A. § 5-41-104 - so the sentencing enhancement could have
been applied with Arkansas as the venue. The E. Arkansas US Attorney's Office
exercised prosecutorial discretion by not seeking indictment. The New Jersey
USAO decided they wanted to prosecute and thought they could make a colorable
claim on the issue of venue.

The prosecution tells us much more about the New Jersey USAO than it does
about the overall desire of the US Government to prosecute this particular
act.

~~~
2close4comfort
Makes you wonder if might have a friend at AT&T...

------
mirkules
"so he downloaded the iPad operating system onto his computer, decrypted it,
and browsed through the operating system’s code to try to find a way to
register it."

This seems highly suspect and improbable to me. If he was so skilled to
reverse engineer iOS and "decrypt it" (whatever that means), why would he need
weev's help in writing the slurper??

More than likely, though, whoever wrote the document (I'm guessing a judge)
doesn't really understand what happened, and that scares me a little.

------
otterley
It's important to understand here that the judgment was not vacated on grounds
that had anything to do with the crime charged -- the Court didn't conclude
that he wasn't guilty.

Instead, it was vacated for lack of venue. In other words, he got off on a
technicality.

~~~
xal
Well, while technically you are right (heh), there is actually an opinion
stated on the whole case as well:

 _We also note that in order to be guilty of accessing “without authorization,
or in excess of authorization” under New Jersey law, the Government needed to
prove that Auernheimer or Spitler circumvented a code- or password-based
barrier to access._

~~~
otterley
That's not an opinion, that's just a legal citation. The Court expressly
avoided an opinion: "we need not resolve whether Auernheimer’s conduct
involved such a breach..."

------
scottshea
I am glad this happened for a number of reasons. But the crowning moment for
me came when reading his Alias list:

ANDREW AUERNHEIMER, a/k/a Weev a/k/a Weelos a/k/a Escher

~~~
rdl
My friends getting called to testify and having to explain "what is the
G.N.A.A.?" in federal court was pretty lulz-ridden, too.

------
taylorbuley
What I find disturbing: a person brought a piece of news to Gawker. Gawker
publishes data then wipes hands clean of almost all coverage while said person
sits in jail [http://gawker.com/tag/weev](http://gawker.com/tag/weev)

~~~
fyrabanks
Not too many stories to cover there. "Breaking News: Weev Still in Jail"

~~~
taylorbuley
This is a story that has developed over many years. Many other news
publications found the developments newsworthy.

My guess is that Gawk's lawyers told them not to get involved.

------
spacemanmatt
Days like today I _really_ miss GrokLaw to itty bitty pieces.

Yeah, I has a sad.

------
geuis
So I just finished reading the judgement. The one point that is unclear to me
is the charge of violating the CFAA. The secondary charge related to NJ is
thoroughly debunked and is the basis of the vacated judgment. But since the
CFAA is a federal statute, isn't venue irrelevant since all venues in the case
are in the US?

Is this an instance where, now having been vacated on the basis of venue, weev
can't be retried with the CFAA? Double jeopardy etc.

~~~
aidenn0
IANAL, but:

1) It's only a felony if the secondary charge is allowed

2) They can retry this if they want, since the judgement was vacated, weev was
not acquited or convicted. My understanding is that so long as there weren't
certain kinds of prosecutorial misconduct (e.g. the prosecutor intentionally
caused a mistrial so they could start over).

3) That being said, retrials are fairly rare, since it's expensive and it
tends to look bad for the prosecutors.

------
downandout
Interestingly, he is still incarcerated.

[http://i.imgur.com/fe6sfyU.png](http://i.imgur.com/fe6sfyU.png)

------
septerr
I am curious, what is the worst that can happen to someone if their email
address + iPad SIM identifier is exposed.

------
thinkcomp
Full dockets and documents here:

[http://www.plainsite.org/dockets/index.html?id=2416572](http://www.plainsite.org/dockets/index.html?id=2416572)

------
phkamp
I noticed that the law cited talks about "a means of identification of another
person"

The ICC-ID identifies a SIM card, not a person ?

~~~
unreal37
The ICC-ID got them the email addresses. The email address is presumably a way
of identifying another person.

------
robobro
I'm really looking "forward" to the GNAA's return.

------
late2part
This is a great victory for justice and due process.

~~~
pigDisgusting
Actually, to be more accurate, it's a victory for due process and Great
Justice.

------
letrerrr
Power to the people.

