Emerging Issues in Federal January Prosecutions 2018 Volume 66 In This Issue Number 1 United States Department of Justice Introduction .............................................................................................................. 1 Executive Office for United States Attorneys By Jeff Sessions, Attorney General of the United States Washington, DC 20530 Biometric Basics: Options to Gather Data from Digital Devices Locked by a James A. Crowell, IV Director Biometric “Key” ....................................................................................................... 3 By Joey L. Blanch and Stephanie S. Christensen Contributors’ opinions and statements should not be considered an endorsement by EOUSA for any Mastering eLitigation: How to Organize the Collection, Review, and policy, program, or service. Production of Large Volumes of Data in Complex Investigations ...................... 13 By Daniel V. Shapiro and John Haried The United States Attorneys’ Bulletin is published pursuant to 28 C.F.R. § 0.22(b). Dismantling an Alien Smuggling Ring: Investigation and Prosecution The United States Attorneys’ Bulletin Challenges for Federal Prosecutors ...................................................................... 25 is published by the Executive Office for United States By Jason E. Corley and Eric Vincent Carroll Attorneys Office of Legal Education 1620 Pendleton Street In Search of Shadows: Investigating and Prosecuting Crime on the “Dark Columbia, South Carolina 29201 Web” ........................................................................................................................ 41 Editor By Keith Becker and Ben Fitzpatrick K. Tate Chambers Expanding Victim Rights ....................................................................................... 49 Assistant Editors Nikki Piquette By Katharine L. Manning Becky Catoe-Aikey Brenda S. Mercer When Attorney-Client Communication is Not Privileged: Invoking the Crime-Fraud Exception in Grand Jury Investigations ...................................... 57 Law Clerks Gurbani Saini By Gretchen C. F. Shappert Brandy Sanderlin Internet Address Investigating and Prosecuting Law Enforcement Sexual https://www justice gov/usao/resources Misconduct Cases .................................................................................................. 77 /united-states-attorneys-bulletins By Fara Gold Send article submissions to Editor, Can’t Touch This: Payment Schedules that Prevent Obtaining Defendants’ United States Attorneys’ Bulletin National Advocacy Center Assets for Restitution ............................................................................................ 93 Office of Legal Education 1620 Pendleton Street By G. Ian Peng Columbia, SC 29201 Cite as: Marital Privilege in Domestic Violence and Child Abuse Cases in Federal 66 U.S. Attorneys’ Bulletin, Courts: Exceptions to the Privilege and Compelling Testimony ...................... 105 January 2018 By Sasha N. Rutizer Coming Soon to a Theater Near You – Motions to Prevent the Cross Examination of Defense Experts ......................................................................... 117 By James D. Peterson Two New Self-Authentication Rules That Make It Easier to Admit Electronic Evidence ............................................................................................. 127 By John M. Haried Emerging Issues in Federal January Prosecutions 2018 Volume 66 In This Issue Number 1 United States Department of Justice Responding to Defense Demands for Government Assistance in Large ESI Executive Office for Criminal Cases ..................................................................................................... 139 United States Attorneys Washington, DC 20530 By John W. M. Claud James A. Crowell, IV Director The Resurgence of Denaturalization: The Supreme Court’s Decision in Maslenjak and Its Initial Impact on Civil and Criminal Cases Seeking Contributors’ opinions and statements Revocation of U.S. Citizenship ............................................................................ 149 should not be considered an endorsement by EOUSA for any By Timothy M. Belsan, Aram A. Gavoor, and Joseph A. Marutollo policy, program, or service. International Parental Kidnapping: An Overview of Federal Resources The United States Attorneys’ Bulletin is published pursuant to to Assist Your Investigation and Prosecution .................................................... 159 28 C.F.R. § 0.22(b). By Jennifer Toritto Leonardo The United States Attorneys’ Bulletin is published by the Protecting Law Enforcement Peer-to-Peer Investigations................................. 167 Executive Office for United States By Jeffrey H. Zeeman and Joanne C. Pasquarelli Attorneys Office of Legal Education 1620 Pendleton Street Columbia, South Carolina 29201 Transnational Drug Trafficking Act of 2015...................................................... 179 By Stephen Sola, Paul Laymon, and Thomas Johnson Editor K. Tate Chambers Prosecuting Federal Hate Crimes ....................................................................... 191 Assistant Editors By Barbara Kay Bosserman and Angela M. Miller Nikki Piquette Becky Catoe-Aikey Brenda S. Mercer Note from the Editor ............................................................................................ 237 By K. Tate Chambers Law Clerks Gurbani Saini Brandy Sanderlin Internet Address https://www justice gov/usao/resources /united-states-attorneys-bulletins Send article submissions to Editor, United States Attorneys’ Bulletin National Advocacy Center Office of Legal Education 1620 Pendleton Street Columbia, SC 29201 Cite as: 66 U.S. Attorneys’ Bulletin, January 2018 Introduction Jeff Sessions Attorney General of the United States This issue of USA Bulletin, “Emerging Issues in Federal Prosecutions,” provides important information that will better inform all prosecutors and investigators about the new challenges we face on a daily basis. I want to personally write the introduction to stress my support for the USA Bulletin and its mission. Good ideas are essential for skill development for even our most experienced and able practitioners. A key approach that sets the best professionals apart from their peers is that the best never stop learning. They remain as determined to improve in their sixties as they were in their twenties. This publication is a great tool to help all learn and improve. It engenders excellence and increased productivity. It shares proven ideas and techniques. I want to ensure that our Department empowers and encourages you to seek excellence and increased productivity. We want to give you guidance on policy, and we want to unleash your creativity and energy. This is the way you will be most fulfilled in your work and the way the goals of the DOJ will be best met. To paraphrase Churchill’s question, “And what is our policy?” For us, the answer is clear. We will use all our resources, personnel, training, skills, and passion to make America a better, more honorable, safer, and more prosperous place. It is not just how many we prosecute and precisely how much time the convicted receive (though these are very important matters), we want to use all our resources and efforts to reduce crime in America. This “USA Bulletin” provides timely information that covers critical issues such as electronically stored evidence, alien smuggling, criminal discovery, the dark web, victim’s rights, and trial techniques, among other issues. The writers give updates on legal, technological, and legislative changes that will surely benefit all. My thanks are extended to the editors and writers for their hard work in producing these valuable insights. I am a strong supporter of this periodical. January 2018 United States Attorneys’ Bulletin 1 Page Intentionally Left Blank 2 United States Attorneys’ Bulletin January 2018 Biometric Basics: Options to Gather Data from Digital Devices Locked by a Biometric “Key” Joey L. Blanch Deputy Chief, Violent and Organized Crime Section United States Attorney’s Office Central District of California Stephanie S. Christensen Chief, Computer Crimes and Intellectual Property Section United States Attorney’s Office Central District of California I. Introduction Increasingly, mobile devices such as smartphones, tablets, and laptop computers play a critical role in everyday life. Mobile devices can contain evidence of communications through email, text message, instant message, and social networking applications. They can contain bank account records, consumer data, health and fitness records, photographs, videos, and evidence of internet activity. This is true for criminals as well as law-abiding citizens, which means that mobile devices can hold a treasure trove of evidence for law enforcement. Because mobile devices expose so much sensitive and personal data, securing these devices from unwanted intrusion has become a big issue for consumers and companies manufacturing the devices. New security features, designed to protect mobile device users from unlawful intrusion into their devices and data, also protect criminals from lawful, warranted searches. It is therefore critical that prosecutors are aware of these security features and understand how the technology and the law intersect. II. What Are “Biometrics” For years, cellphones have come equipped with a “passcode unlock” feature, requiring a user to type in a numeric or alpha numeric passcode to gain access to the device and the sensitive data inside. A “locked”