Identity theft is a fraud-related crime that primarily involves an individual accessing and at the same time misusing another person’s identifying information (Morton, 2014). In this case, the information might even include pin numbers, credit card information as well as social security numbers. This information might be accessed through illegal and unauthorized access to government and even financial institution or through identity theft. As an attorney, I would charge Gorski as an identity thief since the cards in the briefcase contain identities of other individuals. Counterfeiting is another crime that involves goods and services that appear as if they are in fact original and emanating from an original source but they are illegal productions. This crime can be illustrated through fraudulent goods and even documents. I would charge Gorski based on this crime because of the goods he was carrying, the illegal credit cards.
Wire fraud is the type of crime that can take a variety of forms and they mainly involve those scams that usually occur over interstate wires including telemarketing fraud or spam and also phishing. Notably, the elements of this crime include the participation of the defendant in the scheme to defraud another, the intention to perform the criminal act; the defendant actually used interstate wire communication. I would have charged Gorski with this crime for his behavior. Fraud is a common criminal problem that involves several elements that need to be fulfilled. First of all, there must be a misrepresentation of a fact that is material, a person who has the belief that the material is actually false, another person who relies on the misrepresentation justifiably, and the pains or injuries caused by the reliance on the misrepresentation (“Fraud Prevention and Detection”, 2014). As an attorney, this would be the fourth charge that I would place on him because of the stolen identities that would result in those people not being able to access their money.
As the defense attorney, I would go for the fact that the seizure of the cards, the smart phone and the computer from the briefcase at Los Angeles airport, LAX, by the Border Protection agent, the action taken by the deputized agent, Randall Nicholas, which was decoding the encryption algorithm and the fact that the forensic examination by the forensic department of the computer, as well as the smart phone, was done against the sixth amendment of the constitutional rights. The sixth amendment of the constitutional rights claims that the accused shall be able to access a fast as well as public trial by a jury that treats all the accused in an equal manner, but most important of all, is that the trial takes place in the state, as well as district that the crime takes place (Dinan, 2013). Thus the Supreme Court should apply the Erie doctrine which determines which state should apply its law in the matter.
The fact that the only evidence available from the capture is a matter of fact insufficient evidence. Thus, for the prosecutor to prove the presence of an intended fraud, the evidence must be quite sufficient and this might include a confession from Sergei. Moreover, the intent to commit the crime is absent, and so one of the elements required to be fulfilled for the fraud to be imminent is not present. Therefore, this is just proof that Sergei might be safe from prosecution. These elements that need to fulfilled are as follows: misrepresentation of a statement that is material, the report should be by a person who actually believes it not to be true, the report should be to a person who relies on the misrepresentation justifiably, the intention for fraudulent crime to be committed and the injury caused by the reliance on the misrepresentation.
Another defense is the act of entrapment that occurred in the whole scenario by the security organization, FBI. Entrapment occurs when the government, through its security organizations and departments, forces an individual, that is innocent (an individual is innocent till proven guilty), to commit a crime that would not have been committed by that person if the government did not interfere. For instance, when the FBI agent reached out to Sergei under the disguise of Gorski, and convinced Sergei to come over to Los Angeles resulted in him being involved in yet another crime that will be added to his charges. Therefore, in this case, entrapment of Sergei is a path that can be followed and even result in the release of Sergei even on bail.
First of all, illegal counterfeiting of goods and services is the initial crime that the gang in Los Angeles committed. The main element in this case is the intent to commit this fraudulent crime and seemingly, this gang had plenty of the intent that they engaged in trafficking them to Los Angeles. Wire fraud is another crime that the organized crime gang in Los Angeles committed. Wire fraud can take many forms such as telemarketing fraud and it mainly takes place over the interstate wires. The main elements of this crime include the fact that the defendant participated in the crime of defrauding another, the intention to defraud another person, the defender used interstate wire communications and the fact that it was foreseen that the defendant would actually use wire communications (Weston, 2014). This gang participated in the defrauding and they had plenty of intention to perform the fraudulent act.
In order to qualify an expert as a witness, there are several qualifications that are considered. Some of the qualifications that the attorney would employ include place and quality of education, the place and quality of the training undergone by the expert, the knowledge possessed by the expert and the skills that he or she possesses. The expert also should have a good background that is supported by his or her family. Moreover, this expert’s work history should always be recommendable and should be evidenced by his or her immediate superior. These qualities should always be enough for the court to consider him or her to be an expert in that respective field in question. Also, the printouts from the communications that were obtained from forensic examination are a viable evidence for the case because it contains quite reliable evidence and proof for the case.
It is by law that the drugs found in enclosed areas through searches and seizures without the permission of the suspect are not to be entered into the evidence provided to the prosecutors as required by the fourth amendment of the US constitution. Moreover, given that they had retrieved an image of fully grown marijuana, does not necessarily give the evidence that it was truly a marijuana plant. Therefore, the defense will be at an advantage because the prosecutors never got the tangible plant that might prove that it was actually a marijuana plant. Another path that the defense can take is to find out if Swifford could be a patient that is exempted to use marijuana for medicinal purposes given that it is a possibility in such a case. Therefore, the defense can still offer several paths that may end up reducing the sentence.
With respect to the image that implies sexual exploitation of children, the fact that Swifford is still not aware of the search in his house, makes it to appear that they are disregarding a suspect’s constitutional right that is well stipulated in the fourth amendment of the constitution. Moreover, if the child in the image is identified and the child is reviewed with the Center for Missing and Exploited Children and the child’s name is not in their list only makes the defense to be stronger. For the documents retrieved from the computer with regards to the credit card numbers, the defense could in fact call for the fact that the evidence is not truly enough given that Swifford works with these credit card numbers all the time and usually use them at home for further working.
It is not legal to intercept or disclose or even use the contents of a wire communication of any nature through the use of a device intentionally as declared by the Wiretap Act. This provides the grounds for the defense that Swafford and Johnson are trying to put up against the company that they were originally working for. Further from that, their job at Capital One was to respond mainly to the consumers’ reports about their credit cards being fraud. Therefore, the records that they had kept in the cabinet were mere proofs of those cases that they had handled after being reported fraud and so there is no proof that these information from the cabinet was actually used for counterfeiting. Finally, the searching of the files in the cabinets and computer without the knowledge of Johnson was a clear disregard of the constitutional rights of theirs, thus forming a defense for them.
Reference List
Dinan, J. (2013). STATE CONSTITUTIONAL AMENDMENTS AND INDIVIDUAL RIGHTS IN THE TWENTY-FIRST CENTURY. Albany Law Review, 76(4), 2105-2140.
MORTON, H. (2014). Identity Theft Strikes Young. (Cover story). State Legislatures, 40(6), 14-17.
WESTON, B. (2014). MAIL AND WIRE FRAUD. American Criminal Law Review, 51(4), 1423-1447.
Fraud Prevention and Detection: 'Breaking the Fraud Triangle'. (2014). Lawyer (Online Edition), 12.
