field with blue sky and don't fence me in title

location tracking technologies and the future of privacy

By: Cheryl Meyers Buth, Esq. and Joel L. Daniels, Esq.




Back in the 1970’s (yes, one of us was around then) you were considered a “tech savvy lawyer” as long as you used an IBM Selectric typewriter and always carried a quarter for a payphone call. But to quote the Greek philosopher Heraclitus, 500 BC: “Nothing is permanent except change”.

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BOOK REVIEW: INSIDE PRIVATE PRISONS – “An American Dilemma in the Age of Mass Incarceration” By Lauren-Brooke Eisen

This timely book is a must-read for anyone, lawyer and non-lawyer alike, interested in the moral and practical implications of how our private prison infrastructure profits from the incarceration of human beings.  Inside Private Prisons analyzes whether the goals of incarceration—punishment, community safety and rehabilitation-- traditionally the province of governments, should be relinquished to private sector businesses pursuing financial gain.


Lauren-Brooke “LB” Eisen, a senior fellow at the Brennan Center for Justice at NYU Law School, discusses how the economic, moral and political aspects of this “American Dilemma” are intertwined. Eisen explains how decisions by presidential administrations over the last 30 years have helped entrench this system in some state economies and discusses the quieter but growing resistance from those morally opposed to the idea of profiting from the warehousing of human beings. She addresses the political challenges, options and realities that private prisons represent today.  Eisen, who does not argue either for the continuation or the abandonment of private prisons, takes an academic and objective approach, part investigative reporter, part historical researcher.


The book begins with an introduction to the “The Prison Buildup and the Birth of Private Prisons” followed by four chapters covering the nuts and bolts of governmental privatization and the developing view of prisoners as commodities. The middle of the book discusses the increase in the number of private prisons, the “heartland” of states employing them, as well as the current political movement in some quarters urging businesses to divest from holdings in companies that operate private prisons. The final four chapters examine private immigration detention centers (as opposed to Bureau of Prisons and U.S. Marshals private contract facilities), modern public prisons compared with private counterparts, the moral objections to the concept of private prisons and suggested areas of reform.


Throughout the book Eisen invites the reader to question whether the private prison phenomena is an economic solution to a political problem (prison overpopulation); or a political solution to an economic problem (financing the increasing need for more prisons). One of the questions the book tries to answer is why private prisons have sprung up now in our history (suggesting the 1994 Clinton crime bill as one factor) and what a plan for moving forward should involve.


The book succeeds in effectively explaining both the macro and micro aspects of the prison industry, also keeping in mind the perspective of the individual locked behind bars. The author first takes a close look at the proverbial trees in the political landscape—the operations side of private prisons, their organizational structure, the faces behind the companies that own them, whether they are, as advertised, a cost-savings option, and the distinct prison populations that are most affected by them. Later in the book Eisen pulls back to illuminate the complicated interrelatedness of our modern criminal justice system and the divisive social and racial environment in which this system of private prisons operates. Her 360-degree perspective helps the reader come to the inescapable conclusion, whether of the opinion privatization is a good or bad thing, that it has become dug in with far reaching roots and will be difficult to hack out.


In an interview with the National Book Reviewjust before the publication of her book last year, Eisen described it as examining:


“[T]he broader prison-industrial complex that relies on a vast infrastructure of financial incentives that create significant hurdles to dismantling a mass incarceration system on which the nation has come to rely. An entire industry exists with a financial stake in keeping prisons filled or ensuring that the numbers of people who become enmeshed in the criminal justice system is maintained, if not greatly increased. . .”


Eisen cites the fact politicians and presidential candidates are weighing in on the debate. Senator Bernie Sanders introduced the Justice Is Not For Sale Act in 2015 which would ban all federal government contracts with private prison companies at the state, federal and local level. He has called taking campaign contributions from prison company lobbyists “immoral”.

Under the Obama Administration there was a movement away from private prisons which coincided with the formation of groups seeking to abolish the practice. Such groups focused on the asserted unconstitutionality of private prisons under the non-delegation doctrine; ie. the theory being the delegation of an essential governmental function is a violation of the due process clause and, by injecting financial bias into the system, prisoners are turned into property “in violation of the Thirteenth Amendment’s abolition of slavery and the Eighth Amendment’s prohibition of cruel and unusual punishment.”


In the summer of 2016, Deputy Assistant Attorney General Sally Yates announced that the Justice Department would slowly work toward not renewing its contracts with private prison companies. However, in February 2017, President Trump’s new Attorney General Jeff Sessions issued a prophetic memo to the BOP ordering a return to the previous approach since not using private prisons would “impair the Bureau’s ability to meet the future needs of the federal correctional system”. President Trump has benefitted from thousands of dollars in campaign/PAC contributions from private prison companies seeking to influence public debate and administration policies toward mass incarceration.  Ironically, earlier this year, the Trump administration’s First Step Act was heralded by some politicians who promoted it as a victory in the battle toward reducing the federal prison population. There is a political undertow, however, of conservative interests and private companies aligned with them, who are reaping the political and economic benefits of continuing and encouraging a culture of mass incarceration.


Currently, the two largest private prison firms are CoreCivic (f/k/a Corrections Corporation of America or “CCA”) and GEO Group (f/k/a Wackenhut Corporation). “Although for-profit prison corporations publicly claim that they don’t lobby for changes in criminal justice policy, they spend large amounts of money every year on lobbying firms that advocate for their financial interests in Congress and in state legislatures. From 2002- 2012 CoreCivic spent more than $17 million in lobbying expenditures; GEO Group spent $2.5 million from 2004-2012. Since 1989, GEO Group, CoreCivic and their associates have spent almost $25 million on lobbying efforts and more than $10 million on campaign donations” Both companies have political and business contacts extending deep into the criminal justice system which will make it difficult to excise them later.


Since 2007, CoreCivic and GEO Group have been awarded $8 billion in federal contracts. GEO Group and CoreCivic earned a combined $4.3 billion dollars in 2016, with $382 million in profits.  However, BOP contracts with private contractors do not necessarily equate to them having the same transparency, same responsiveness, or goals. Frustrated by a lack of accountability, the ACLU, the Southern Poverty Law Center, the Sentencing Project and the Center for Constitutional Rights have all argued that private prisons should be subject to the same standards of transparency as government agencies.


The United States Marshal and Bureau of Prisons now frequently use facilities run by private contractors.[1]For years in the Western District of New York federal pretrial detainees were housed in a variety of county jails under contracts with the USMS. However, there is now a trend toward housing clients awaiting trial in private facilities in Northeast OH and Virginia. Convicted clients, especially non-U.S. citizens, end up in facilities which contract with BOP to house illegal immigrant inmate populations serving criminal sentences.  As Eisen points out, it is unclear yet how these facilities are being supervised and evaluated by BOP and Justice Department officials. Courts have also been complicit; by holding that certain convicted inmate populations may be detained in facilities that do not provide comparable access to programs during the service of criminal sentences, they have helped prop up this hybrid public/private system.


I read Inside Private Prisons when a former client’s family contacted me about conditions in a federal contract prison in Texas run by GEO Group. The client, Hugh Stevens, is not a U.S. Citizen; he is a native of Scotland who lived for the past 50 years in the United States. Currently age 70, with a limited formal education, no history of violence, and a good institutional record, he is serving the remainder of a 20-year federal drug sentence. He had initially been designated to the federal correctional institution at Ft. Dix, New Jersey and then was transferred to another BOP facility in Louisiana. Several years ago he was sent to a private BOP contract facility in Big Springs, Texas. Since it is expected he will be deported once he completes his sentence, Mr. Stevens is being denied the programs he was entitled to during the years he was incarcerated at prior BOP facilities since his conviction in 2010.


Similar to how Eisen recounts her experience, and consistent with reports that private prisons lack transparency, I had difficulty obtaining information from the staff and counselors. Some of the information I did manage to get was inconsistent and letters and calls often went unanswered. Contact with the BOP district counsel’s office was not helpful. When I finally received a substantive response, I was told Mr. Stevens was not entitled to be transferred to a different BOP facility since he was a “deportable alien”, although no order of deportation has been entered and Mr. Stevens plans to fight deportation. All of his immediate family, siblings, children and grandchildren reside in Buffalo, New York or in parts of Canada and have been financially unable to afford to visit him in the-middle-of-nowhere, Texas.[2]


In this respect it would have been helpful if Inside Private Prisonscontained a chapter summarizing legal challenges to the federal government’s use of private prisons. Most of the inmate populations housed in these facilities are serving sentences and have limited access to lawyers. Harnessing decisions relating to conditions in private prisons from the various federal circuits would be a complement to the other chapters in this book. Understanding what aspects of the private prison system have been brought to the attention of courts would give further context to the author’s definition of the “American Dilemma” and elucidate the nature and degree of differences between public and private prisons.


The conclusion of the book in a larger sense has not been written. However, Eisen outlines 10 initial steps that she believes will be needed in coming years for private prisons to continue to be accepted as a viable option to public prisons:  contract monitors, termination clauses in contracts, “no guaranteed bed payments” (contracts which pay for a guaranteed capacity/number of beds even if unoccupied), eliminating disciplinary sanctions that lengthen sentences, plans to remedy inadequate performance, fines, access & transparency, process measures and outcome measures (eg. reduced recidivism, physical/sexual assaults, etc).


Inside Private Prisonsmakes the point that as long as private prisons exist it will be necessary to have sufficient oversight to ensure their drive to profit from policies of mass incarceration does not obliterate the need to make conditions more humane. Eisen quotes Fyodor Dostoyevshky in the last chapter of the book: “The degree of civilization in a society can be judged by entering its prisons”.


On April 16, 2019, the USMS issued a memorandum of anticipated funding shortfall for Federal Prisoner Detention during fiscal year 2019.  The USMS, working with DOJ, is planning to address rising prisoner populations which, over the past two years, have resulted in a $2 million deficit. In addition to maximizing all existing BOP space and shifting prisoners awaiting sentencing to lower cost detention facilities, districts are being asked to “Actively leverage tiered pricing models at private detention facilities to ensure economies of scale are maximized, if applicable. Neighboring districts may be required to move prisoners into these facilities to ensure cost efficiencies. POD will assist district management in identifying specific detention populations that will accomplish this action.”


[2]The habeas petition filed on March 18, 2019 seeking to have Mr. Stevens transferred to within 500 miles of his residence is available on PACER from the U.S. District Court Northern District of Texas at docket 19-cv-00034-C

BOOK REVIEW: “THE BRAIN DEFENSE: Murder in Manhattan and the Dawn of Neuroscience in America’s Courtrooms”, by Kevin Davis (February 28, 2017)

Two things led me to order this book on Amazon. First, the subject of brain injuries and neuroscience has been somewhat of an obsession of mine ever since I saw Concussion, the movie about the effects of CTE (Chronic Traumatic Encephalopathy) on professional football players. Until recently, CTE could only be definitively diagnosed by direct tissue examination after death. Bennet Omalu, the doctor portrayed in the movie and generally credited with discovering the protein marker linked to CTE, announced in the journal Neurosurgery this month that he developed a test in 2012 that was used to detect CTE for the first time in a living individual.

The second reason I bought this book was to learn more about how so-called brain-based defenses are being used in court.[1] They usually involve a search for medically demonstrable reasons why a client, especially one who was previously law abiding, would demonstrate anti-social or criminal behaviors on an isolated date or during a finite period of time.  Although I frequently use psychiatrists and psychologists in my criminal practice, until this year I had never invoked an insanity defense on behalf of a client.  As the book points out, the defense is rarely used; fewer than one percent of criminal cases involve an insanity plea (the majority of those cases result in guilty verdicts).

I am currently defending a paraplegic who shot his father point blank as he sat on the family room sofa. The client had a Nest© home security video system which recorded all activity inside the house.  The recordings are temporarily stored in the cloud.  Police were able to preserve the video and audio for the hour just before and immediately after the shooting.  My client is heard talking in his normal voice, then adopting a strange, audibly distinct, voice and personality.  Like flipping a switch, he goes from having a conversation with his father, with whom he was extremely close, to accusing him of being an imposter, and then shooting him twice in the chest with an AR-15.  He watches him bleed out on the floor and eventually die.  Later our client’s voice and demeanor suddenly change back, as if coming out of a dream and realizing what he has done, and he screams for help while acknowledging to a 911 operator that he “accidentally killed [his] father”. Not that firing the rifle was unintentional, but rather he thought he was shooting someone else and only later realized he had actually shot his own father.

In a chapter entitled “When Neuroscientists Come To Court”, the book discusses different attitudes among neuroscientists about their ability to categorically link brain conditions and imaging studies to causality in criminal cases. The author reviews the history of courts accepting fMRI, CT, PET and SPECT scans, and other relatively recent tests used to diagnose brain diseases or conditions. He cites published papers investigating the pathology behind schizophrenia and bipolar disorder using PET scans and other neuropsychological tests to show, for example, frontal lobe dysfunction.  He asks the reader to consider whether such dysfunction should serve as a mitigating factor in how the law treats offenders.

The chapter contains a laundry list of the most renowned experts in neuroscience. The takeaway is that there is not yet general agreement on how to interpret the existence of brain conditions in relation to the legal question of whether someone should be held responsible for criminal conduct. The author quotes several of these experts who point out that the data from scans, while scientifically solid, is subject to interpretation. Analogous to reverse extrapolation of blood alcohol content in a DWI case, scans taken months or years after an event which are then used to try to explain past behavior are subject to differing interpretations.

 “The Brain Defense” is not a medical treatise or a law review article.  It is an easy to read collection of biographical stories of people who, because of a brain condition, have engaged in aberrational violence and the legal consequences of their actions. The book poses the question whether like depression and schizophrenia, violent behavior has organic roots; whether acquired or genetic, brain impairments may predispose some people to violence. The author gives multiple examples from the growing field of neurocriminology, i.e. the use of neuroscience to investigate the causes of crimes.

Although the author uses true crime stories as an organizational device, the “The Brain Defense” is not written just for attorneys; I would recommend it to anyone interested in the fluid intersection between law and science. The book examines how brain injuries and diseases are diagnosed, the connection between brain injuries and behavior, and how recent scientific developments are giving rise to novel legal defenses or used as mitigating evidence in court.  The book’s chronological structure, with each chapter revolving around a single case study or topic, conveys the progression of developing applications of neuroscience to determining an individual’s responsibility for criminal behavior.

The first chapter and subsequent chapters woven through the book introduce the reader to the case of Herbert Weinstein, an advertising executive who in January 1991 confessed to strangling his wife during an argument and throwing her out the window of their Upper East Side apartment.  Weinstein had no prior history of violent behavior . He was represented by attorney Darmuid White of the New York office of Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria.  Weinstein’s case was one of the earliest examples of using a brain condition (benign arachnoid cyst) to support a defense of temporary insanity.  Until that time, arguing that a brain injury was the cause of a specific act at a precise moment was fairly untested in the courts.

Foreshadowing Weinstein’s defense was the case of John Hinckley who was tried for attempting to assassinate President Regan in 1981.  Hinckley’s defense attorneys used the insanity defense, bringing in doctors to testify that Hinckley had schizophrenia and was delusional when he shot the President.  Hinckley’s lawyers moved to introduce CT scans of Hinckley’s brain which the judge first excluded but later admitted as some evidence of a brain condition that researchers believed occurred more frequently in people with schizophrenia. The defense expert confirmed the findings on the CT scan but stopped short of saying the condition was associated with schizophrenia. Based on other testimony that Hinckley suffered from a diminished mental state, the jury found him not guilty by reason of insanity and he was ordered committed to a mental hospital.  Last year, in July 2016, Hinckley was released after being deemed no longer a danger to himself or others.

The book documents Weinstein’s odyssey through the medical field as he was examined by many doctors and underwent a wide variety of tests until a PET scan revealed frontal lobe impairment as a result of the cyst. However, PET scan images had never been used in court to prove a defendant was temporarily insane and therefore not criminally responsible.  The court in Weinstein’s case conducted a Frye hearing and ultimately ruled that the PET scans would be admissible at trial. Judge Richard Carruthers decided that PET scans were generally accepted in the scientific community as diagnostic procedures.  However, the judge would not allow experts to testify that the scans could explain specific behavior or that his condition had caused Weinstein to kill his wife.  In other words, the theory that arachnoid cysts could directly cause violence was not an accepted theory nor was the theory that impairments of the brain generally caused violence. With that ruling, and considering the expense of calling experts at a full-blown trial, Weinstein decided to accept a plea to manslaughter.  He was sentenced to seven to twenty-one years in prison.

The book concludes with chapters on representing veterans who often suffer from post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI).  There is also a chapter discussing CTE and whether it is a viable defense in the courtroom.  In 2014, Dr. Daniel Antonius, an assistant professor of psychiatry at the University of Buffalo, wrote an influential paper in which he argued CTE currently has no value in the courtroom.  He cites medical literature on CTE consisting mainly of case studies which alone cannot be used to establish clinical criteria for diagnosing a condition.  The DSM 5th ed does not, for example, include references to brain scans to diagnose mental illness. On the other hand, with advances in testing for CTE in living persons, the use of CTE as a legal defense may begin to find greater support.

“The Brain Defense” posits that the future use of neuroscience in courtrooms will help evaluate criminal defendants more fully and compassionately and not in a manner incompatible with holding them criminally responsible.  The author points out the accelerating rate at which technology is being developed and the increasing interest among lay people in the field. To illustrate this point, two neuroscience researchers and a law professor collaboratively published a textbook in 2014 titled Law and Neuroscience, over eight hundred pages of articles, case studies and information being used by teachers at more than twenty schools where the subject is currently part of the curriculum.  “The Brain Defense” ends the way it started – by asking the same questions that people asked twenty six years ago when Herbert Weinstein was arrested: “What, exactly, was going on inside Mr. Weinstein’s brain and what caused him to murder his wife?”.



[1] New York Penal Law §40.15 (Mental Disease or Defect):

“In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect.  Such lack of criminal responsibility means that at the time of such conduct, as a result of mental disease or defect, he lacked substantial capacity to know or appreciate either:

1. The nature and consequences of such conduct;  or

2. That such conduct was wrong.”

* This article was submitted to Atticus, a publication of the New York Association of Criminal Defense Attorneys on November 20, 2017.


The Federal Prosecution of NCAA Basketball

On Tuesday, September 26, 2017 the United States Attorney for the Southern District of New York announced the arrest of ten individuals, including four Division I coaches, in a college basketball scandal. Corporate executives from global sports company Adidas, as well as coaches from Auburn, the University of South Carolina, the University of Arizona and the University of Southern California, were named as defendants.  The Criminal Complaints describe two separate corruption schemes involving wire fraud and money laundering. 1*

The first scheme involved college basketball coaches taking cash bribes from athlete advisors, including business managers and financial advisors, in exchange for using their influence to steer college players to certain Division I schools and to retain the services of bribe-paying agents (“advisors”) after they entered the NBA. 

In the second scheme, a senior executive at “Company-1” (Adidas), working in connection with the corrupt advisors, funneled bribe payments to high school-aged players through their AAU program to obtain those players’ commitments to attend universities sponsored by Adidas, rather than schools sponsored by Nike or other sports apparel brands.  

A criminal complaint is a written instrument accusing someone (the “defendant”) of a crime.  The complaint alleges that federal statutes have been violated; it is supported by the affidavit of an investigating law enforcement agent.  A complaint is enough to hail a defendant into court but prosecutors have to present evidence to a grand jury and obtain an indictment in order to proceed to trial. 

Once indicted, under speedy trial rules, the Government has 70 days to bring a defendant to trial minus any excludable periods of time. Generally speaking, there is more flexibility prior to, rather than after, an indictment is filed.  Sometime after a defendant is arraigned on a criminal complaint, the judge sets a date by which the Government must indict or the complaint will be dismissed (See Fed.R.Crim. Pro. 48(b)). Many courts will extend the Government’s time to indict if the defendant is not in custody and the parties consent. This is especially common where there is a request for, or an attempt by, a Defendant to provide “cooperation”.  “Cooperation” refers to a process by which a Defendant is required to provide assistance to the Government (colloquially, “snitching”) in order to obtain a favorable plea bargain.

The three complaints in this case charge four coaches (Chuck Person, Lamont Evans, Emanuel Richardson, and Anthony Bland); three athlete advisors (Christian Dawkins, Munish Sood & Rashan Michel) a senior executive at Adidas(James Gatto), an employee of Adidas(Merl Code) and an AAU program director (Jonathan Brad Augustine).

Gatto is the head of global sports marketing for Adidas.  Merl Code was an employee of Adidas and prior head of Nike Elite youth basketball. Jonathan Brad Augustine, is an AAU program director and head of a Florida 501©(3) non-profit whose purpose is to benefit high school age athletes and provide mentors. 

Dawkins worked at a sports management company in New Jersey but was not a registered agent.  His main duties included recruiting athletes to the firm and maintaining client relationships.  In May 2017 he was fired for misusing an athlete’s credit card to pay for ride company services.  He then tried to open his own sports management business. Sood founded an investment company in 2002 and is a registered investment advisor.  Sood was an investor in Dawkins’ new sports management business.

The non-university coach defendants (Gatto, Sood, Dawkins, Code and Augustine) are charged in Criminal Complaint #17-MAG-7120, 2* pending before United States Magistrate Judge James Cott.  Those defendants are charged with one count of conspiring to commit wire fraud, two counts of actually committing wire fraud (substantive counts) and one count of money laundering.  The criminal acts are alleged to have been committed between May 2017 - September 2017.

Count One – charges a conspiracy to commit wire fraud and agreeing to a scheme to defraud by obtaining money by false pretenses. The defendants and others employed at “University 6” & “University 7” made bribe payments to high school athletes and/or their families in exchange for the player’s commitment to play basketball at those schools.  This resulted in the universities unknowingly giving scholarship money to athletes who were ineligible because they had accepted bribes (this is also the substantive wire fraud charge in count 2). The Government’s theory is that the universities were thereby deprived of control over their money and could have been subjected to financial penalties under NCAA rules. 3*  (substantive wire fraud charge under count 3).  Count Four charges money laundering; i.e. conducting financial transactions knowing the money is proceeds of illegal activity.

How the Schemes were Allegedly Carried Out

The remainder of complaint, paragraph numbers 8-47, outline the factual background of investigation.  Since 2015 the FBI and US Attorney for the Southern District of New York have been investigating the criminal influence of money on coaches and players in college basketball.

Bribes paid by athlete advisors and high-level apparel companies to student-athletes were facilitated by coaches at Division I universities.  The money was paid to athletes (or their families) playing at Division I schools or intending to attend a Division I college after high school in exchange for a commitment to attend a particular school and then to hire the “bribe-payors” as agents or in other similar capacities once they enter the NBA.

Sometimes payments were concealed by paying the money to a third party or non-profit organizations controlled by the defendants and encouraging players and their families to make false representations to these schools to conceal their violation of NCAA rules. Two defendants, Gatto and Code, employees at Adidas (“company 1”) conspired to pay athletes to entice them to attend Adidas sponsored schools and then sign with Adidas once they entered the NBA.  Dawkins, Sood, and Augustine facilitated the payments from Gatto and Code to the players and then got the players to commit to hiring Dawkins, as their agent/business manager,  and Sood as their financial manager, after they turned professional.

In order to gather proof against the Defendants, the Government used a cooperating witness who operated a business management firm that catered to professional athletes and provided investment-related advice. In September 2017 this cooperator pled guilty to securities fraud, wire fraud, aggravated identity theft and making false statements pursuant to a cooperation

Agreement. The latter reference is not explained in the Complaint but most likely means the cooperator lied to his federal “handlers” during the course of the investigation.

An FBI undercover agent posed as a potential backer for the sports management company Dawkins was trying to set up with Sood. Dawkins instructed Sood and the undercover to make a $25,000 payment to a player with a promise they would be reimbursed by virtue of their positions with the sports management company.  The FBI captured Dawkins on a wiretap and were intercepting his phone calls. 

Adidas generated sham purchase orders since they couldn’t use funds to directly pay a player without risking the illegal payment being discovered.  Gatto was putting the purchase orders “on the books” and listing them as payments to an outside consulting company with which Code was affiliated.  Gatto also made payments “off the books” to Code’s working group within Adidas. Code complained in one conversation that when he tried to submit an invoice to Adidas from Code’s consulting company for the “university 6 situation” the consulting company didn’t have a vendor number in Adidas’ system. It would take Code several weeks to create a vendor number and purchase order and he couldn’t afford to wait. He was upset that  Gatto wasn’t using his position to push it through so Code asked Dawkins to have Sood and the undercover to make a $25k payment to player 10’s father.

Player 10’s father had been putting pressure on them to get paid. In return, Player 10 would then agree to sign with Dawkin’s company to represent him when he turned professional. The Government also intercepted conversations between the defendants about how other apparel companies mask similar payments to high school athletes.  Code stated that by funneling payments through a third party company like Dawkins’ he could do whatever he wanted with it because Adidas was not engaging in a monetary relationship with an amateur athlete.  Rather, he characterized it as engaging in a monetary relationship with a business manager. Dawkins expected that if the kid was “one and done” that he’d be a top 20 draft pick but if he played two years of college he’d be a top ten pick. 4*

A week and a half after the NBA Summer League 5* ended in Las Vegas, Augustine met in a hotel room there with an assistant coach from Louisville, an undercover agent and a cooperating witness. They discussed certain difficulties they were having with their recruitment scheme. In addition to Player 10, they were recruiting another player to attend Louisville but the player’s mother was demanding payment immediately. Adidas had agreed to pay player 10 a certain amount but a rival apparel company (and university 4) was “coming in with a higher number”.  Dawkins discussed how once they finished paying Player 10 they had to then pay his father $2,000 / month.  He also talked about giving Augustine $5,000 per month to give to the other player’s mother so she could pay her bills. Dawkins admitted to the FBI undercover agent that some of the payments are “illegal”.

While most media commentators have welcomed the federal prosecution as helping to clean up college basketball, there have been some who have criticized it as federal “overreaching”. Others have called the public shaming of only a small number of schools a “drop in the ocean” and even a misplaced effort: 

Last month, Adidas agreed to pay $160 million over 10 years for the University of Louisville to wear its apparel. That’s called a “deal.” But if the company then pays a high school athlete to attend the school, that’s called a “bribe”? But that’s an issue for the NCAA, not law enforcement. The NCAA has real power to enforce its rules because it can destroy the careers of both players and coaches who cross it. And despite the obvious fact that college basketball and football are multibillion-dollar businesses, with coaches and others being paid millions of dollars, the NCAA remains adamant that no money ever touch a player’s hand. That’s really the crux of the issue here.”

1* The case was brought in federal court, as opposed to state court, because the scheme involved individuals and businesses acting across state lines and the universities received federal funding.

2* In the two other complaints, Chuck Person and Lamont Evans are accused of executing another scheme where athlete advisors bribed university coaches to steer players to those athlete advisors once they entered the NBA.

3* The NCAA Division I manual provides: “student-athletes shall be amateurs in an intercollegiate sport”.  NCAA bylaws define “agent” as anyone who seeks to obtain directly or indirectly any type of financial gain or benefit from a student athlete’s potential earnings as a professional athlete”.   The definition includes “marketing advisor, financial advisor, contract advisor or brand manager”.  Athletes, coaches, and staff have to certify each year that they are in compliance with NCAA rules in order to participate in NCAA sponsored sports. They also have an affirmative obligation to report any violations of NCAA rules including whether they have any knowledge of rules violations by others.

4* Last year's top pick, Ben Simmons, signed a four-year contract worth up to $26.6 million with the first two years and $12.1 million guaranteed. By comparison, the 16th pick in the draft received a deal worth $9.1 million with $3.9 million guaranteed.  See “Here's how much money players lose when they fall in the NBA Draft”, Cork Gaines/Diana Yukari, June 2017, Business Insider

5*A series of off-season competitions during which National Basketball Association teams try out different rosters of players typically consisting of a mix of rookies, second year players, and unsigned free agents.

  See “Why is the FBI trying to enforce NCAA rules”, Joe Nocera, New York Post 2017

Latest Episode of “The Search for Natalee Holloway” Illustrates Chain of Custody Rule

I have been watching the Oxygen television network series “The Search for Natalee Holloway” on Saturday nights. The show documents Natalee’s father Dave Holloway’s efforts to continue the search for the truth about what happened to his daughter. During the final episode on September 23, 2017, Dave Holloway and his private investigator, with the help of an informant, obtained four pieces of bone from a self-proclaimed accomplice who said he kept them as a trophy when he helped dispose of Natalee’s remains. Initially, the informant turned the bones over to the Aruban Police Chief. However, Dave Holloway’s team began to fear that the police may not want to confirm whether Natalee’s remains had been found. Dave Holloway suspected that some officials were more concerned about the chilling effect such a discovery would have on their tourism industry than about getting to the bottom of what happened to Natalee. He harkened back to what he believed was the widespread police and political corruption that had compromised the investigation from the beginning.

In 2005, 17-year old Natalee Holloway disappeared while vacationing with friends in Aruba. An international media firestorm erupted. The Aruban authorities held Joran Van Der Sloot, a Dutch national, for questioning but eventually released him after concluding there wasn’t enough evidence to charge him. Their investigation, or lack thereof, was criticized and allegations of corruption were an undercurrent in the case. Five years to the day that Natalee disappeared, Van Der Sloot confessed to the violent murder of a young woman in Lima, Peru. He is serving a 28-year sentence.

Natalee’s Holloway’s body was never found. In 2012, Dave Holloway went to court in the United States to have her pronounced dead. However, he has continued to follow up on investigative leads. He hired a private investigator who, working with an informant, obtained taped admissions from a subject who claimed he befriended Van Der Sloot in 2010 when he returned to Aruba. All of these efforts were video recorded and became the basis for the Oxygen television series. This former drug addict admitted to the informant that Van Der Sloot had paid him $1500 to help him dig up Natalee’s body and dispose of her remains. According to this accomplice, Van Der Sloot became nervous in 2010 that renewed efforts to find Natalee and publicity surrounding the discovery of a jawbone which turned out to belong to someone else might reignite interest in finding her.

According to the accomplice, Van Der Sloot and his father had removed Natalee’s body from the beach the night she died. He claimed Van Der Sloot told him they buried her in a burlap sack wrapped in a blue tarp on a hill behind a sparsely populated residential area hours after she was last seen alive. In 2010, Van Der Sloot returned to the burial location and, with the help of the accomplice, dug up her body. They put the burlap sack in the trunk of the accomplice’s Aunt’s car and returned to her house where they crushed up the bones so they wouldn’t be recognizable as human. The accomplice claimed they burned the skull in a firepit to remove trace hair evidence. They then rented a fishing boat and dumped the remaining skeletal material in the ocean.

The accomplice, however, told the informant that he had retained several pieces of the bones as a trophy and buried them in a plastic baggie in his Aunt’s backyard along a fenceline.

He retrieved the bones while the informant took a cell phone video of him digging up the baggie. They turned the bones over to the Aruban police after Van Der Sloot’s accomplice attempted to secure a verbal assurance of immunity.

Several weeks later, the Aruban police met with Dave Holloway and showed him the bones, maintaining that they had an anthropologist examine them and the expert concluded they were animal bones. Believing that the Aruban police had no intention of submitting the bones for DNA testing, and skeptical of whether an expert could tell animal bone fragments from human bone fragments without conducting DNA testing, Dave Holloway requested that the authorities turn the bones over to him so that he could get them independently tested. The Arubans do surrender the bones to Dave Holloway but only after they make perfectly clear that once the bones leave their custody they could not be used as evidence in a trial against Van Der Sloot’s accomplice (if there ever was a trial). Although not specifically explained by the Aruban police chief, he was referring to a well-accepted rule of evidence that requires prosecutors to establish the “chain of custody” of evidence introduced at a trial.

Chain of custody refers to the chronological documentation (paper trail) of the custody, control, transfer, analysis, and disposition of physical or electronic evidence. When evidence is offered for use in court to convict persons of crimes, it must be handled in a manner so as to prevent tampering or contamination. The purpose of recording the chain of custody is to establish that it is actually evidence of the alleged crime, rather than having, for example, been “planted”, tampered with, substituted for, or mixed up with evidence actually connected to the crime.

An identifiable person must always have physical custody of the evidence. This usually means that a police officer will take charge of an item of evidence, document its collection, and hand it over to an evidence clerk for storage in a secure place. Between the collection of the evidence and its appearance in court the movement of the item should be completely documented every time it changes hands (for example, police officer documents he/she transfers custody to the lab or picks up the item once it is tested) in order to withstand legal challenges to the authenticity of the evidence. The signatures of persons involved at each step usually appear on custody forms for this purpose.

If the chain of custody is broken, the evidence may lack credibility and could be deemed inadmissible. A common example would be drug prosecutions where illegal drugs have been seized by law enforcement personnel. In those cases, a chain of custody is important to establish that the substance in evidence was properly tested to confirm it is, in fact, narcotics and that the drugs were in the possession of the defendant. If the sample cannot be located by the lab or the police cannot show the sample remained securely in their custody, the evidence may be suppressed because a chain of custody cannot be established. However, sometimes evidence is admitted even if some breaks in the chain of custody occur and the court may leave it to the jury to give proper weight to the evidence if it believes the evidence is what it is offered to be. See eg Fed.R.Evid. 901.

In the Holloway example, once the Aruban police transfer custody of the bones to a civilian, they can no longer document that the bones have not been tampered with or prove they retained the same character as when they first examined and possessed them. Therefore, if

Aruban prosecutors charge Van Der Sloot’s accomplice with a crime, they may be prevented from introducing the bones or any testing into evidence. There would be an argument, however, that even though Dave Holloway is a civilian, the break in the chain of custody should be a matter for the jury who could give the evidence whatever weight they determined was appropriate. If the Aruban anthropologist had documented either in photos or reports the character of the samples that he examined, the lab that received the bones from Dave Holloway may be able to sufficiently establish the bones were in the same or a similar condition, thereby minimizing the effect of the break in custody. It would all be fact dependent upon what the documented condition of the bones was before and after Dave Holloway had them.

The bones were a catch-22 for Dave Holloway; he didn’t believe the Aruban authorities intended to have them scientifically tested to prove definitively whether they were Natalee’s remains; if he took the bones to test himself and they turned out to be Natalee’s, he risked jeopardizing the prosecution of an admitted accomplice of Joran Van Der Sloot. The final lab results are due to be reported on October 6, 2017. Whether the legal principle of chain of custody becomes an issue depends, in part, on the final identification of the remains by the lab next month.