Second Circuit Criminal Law Update Richard Levitt LEVITT & - - PowerPoint PPT Presentation

Second Circuit Criminal Law Update

Richard Levitt LEVITT & KAIZER 40 Fulton Street, 23rd Floor New York, New York 10038 (212) 480-4000

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U.S. Department of Justice

Office of the Deputy Attorney General

September 9, 2015 MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL, ANTITRUST DIVISION THE ASSIST ANT ATTORNEY GENERAL, CIVIL DIVISION THE ASSISTANT ATTORNEY GENERAL, CRIMINAL DIVISION THE ASSIST

ANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES DIVISION THE ASSISTANT ATTORNEY GENERAL, NATIONAL SECURITY DIVISION THE ASSISTANT ATTORNEY GENERAL, TAX DIVISION THE DIRECTOR, FEDERAL BUREAU OF INVESTIGATION THE DIRECTOR, EXECUTIVE OFFICE FOR UNITED ST A TES TRUSTEES ALL UNITED STATES ATTORNEYS FROM: Sally Quillian Yates Deputy Attorney General SUBJECT: Individual Accountability for Corporate Wrongdoing Fighting corporate fraud and other misconduct is a top priority ofthe Department of

• Justice. Our nation's economy depends on effective enforcement of

the civil and criminal laws that protect our financial system and, by extension, all our citizens. These are principles that the Department lives and breathes- as evidenced by the many attorneys, agents, and support staff who have worked tirelessly on corporate investigations, particularly in the aftermath ofthe financial crisis. One of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing. Such accountability is important for several reasons: it deters future illegal activity, it incentivizes changes in corporate behavior, it ensures that the proper parties are held responsible for their actions, and it promotes the public's confidence in our justice system.

“It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape” — Judge Kozinski

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4 Complete Reversals Last Year

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“Cannibal Cop” Conviction Reversed

United States v. Valle, 807 F.3d 508 (12.3.15) (Parker).

• Defendant, a cop, was member
• f the Dark Fetish Network
• Chats with members consisted
• f “gruesome and graphic descriptions of kidnapping,

torturing, cooking, raping, murdering, and cannibalizing various women,” including his wife

• Charged with conspiracy to kidnap the women he

spoke about online

• District court granted judgment of acquittal following

kidnapping conviction

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U.S. v. Valle, Cont’d

• Government agent testified that Valle’s

conversations with 21 of 24 individuals he met on DFN were “fantasy”

• Gov: Valle’s conversations with other three persons

contained “elements of real crime”

• Court: There was no discernible difference

between the “real” and “fantasy” chats

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U.S. v. Valle, cont’d

“If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt” U.S. v. Triumph Capital Grp., Inc., 544 F.3d 149, 159 (2d Cir.2008)

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U.S. v. Valle, Cont’d Application of Rule of Lenity

• Valle also charged with violating Computer Fraud and

Abuse Act (18 U.S.C. § 1080(a)(2)(B)), imposing liability

• n one who ““intentionally accesses a computer without

authorization”

• He was authorized to use the Omnixx Force Mobile

(“OFM”) program access various databases but NYPD policy permitted access only in the course of cop’s official duties

• “[W]here, as here, the Government and the defense both

posit plausible interpretations of a criminal statute, the rule

• f lenity requires us to adopt the defendant's construction”

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Rule 403 — Threat to Kill Witness

U.S. v. Morgan, 786 F.3d 227 (5.19.15) (Jacobs, Calabresi, Wesley)

Should defendant’s letter to girlfriend evidencing his intention to have principal cooperating witness killed have been excluded under Rule 403?

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U.S. v. Morgan, cont’d

“It cannot be said that the evidence of death threats had no tendency to demonstrate consciousness of guilt… At the same time, the government was required to demonstrate that it had an ‘important purpose’ for the introduction of the death threat evidence during Williams's direct examination… Plainly, it is no such purpose to ‘induc[e] decision on a purely emotional basis.’ Fed.R.Evid. 403 advisory committee's note”

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Practice Tip: Rule 403 may be a viable option to avoid arguably relevant — but unfairly prejudicial — evidence

Juror’s Lies During Voir Dire

U.S. v. Parse, 789 F.3d 83 (6.8.2015) (Kearse, Straub, Wesley)

• Case charged frauds relating to marketing of tax shelters
• After trial evidence suggested that juror lied during voir dire, and

failed to disclose she was a suspended attorney with several arrests

• Prior to post-verdict hearing, juror told Judge Pauley that she

didn’t think an evidentiary hearing was necessary because "[Defendants are] fricken crooks and they should be in jail and you know that”

• District court granted new trial to all defendants except Parse,

finding that his lawyers knew of juror fraud and/or failed to act on information with reasonable diligence, amounting to waiver

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Juror’s Lies During Voir Dire

U.S. v. Parse, 789 F.3d 83 (6.8.2015) (Kearse, Straub, Wesley)

District court wrongly found that defendant Parce’s attorneys had actual knowledge that juror was suspended lawyer, and defense counsel’s alleged lack of due diligence was not a waiver of defendant’s right to an impartial jury

.

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Related Issue: Cert granted 4.4.16 in Pena-Rodriguez v. Colorado: May a “no impeachment rule (such as FRE 606(b)) constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury?”

Expert Testimony

U.S. v. Litvak, 808 F.3d 160 (12.8.15) (Straub, Parker, Carney)

Should expert have been permitted to testify in security fraud case that sophisticated purchasers

• f complex securities would not have found

relevant statements by sell-side salesman regarding the value of Residential Mortgage Backed Securities (“RMBS”) or the price at which they acquired it or could acquire it?

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New York Rules of Professional Conduct, Rule 4.1: “Truthfulness in Statements to Others”: In the course of representing a client, a lawyer shall not knowingly make a false statement of fact or law to a third person “What is a lie under circumstances in which no

• ne expects the truth to be told?" asks Joseph

Badaracco, professor of ethics at Harvard Business School

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Litvak, Cont’d Relevance

Was evidence that defendant’s supervisors regularly approved conduct identical to that for which defendant was charged, properly excluded as irrelevant?

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Buyer-Seller Relationship U.S. v. Brock, 789 F.3d 60 (6.3.15) (Parker)

Did defendant’s purchase of crack for resale from drug organization make him a member of conspiracy?

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Second Circuit Stats

CIRCUIT STATS

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SECOND CIRCUIT TRIAL REVERSALS — 2015

3.15% 96.85%

Affirmed (126) Reversed 4

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SECOND CIRCUIT TRIAL REVERSALS — 2000-2015

4.15%

95.85%

Affirmed (2171) Reversed (94)

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2 4 6 8 10 12 14

C a r n e y D r

• n

e y R a g g i S t r a u b L i v i n g s t

• n

L

• h

i e r C a b r a n e s W a l k e r K a t z m a n n W e s l e y L y n c h L e v a l N e w m a n K e a r s e C a l a b r e s i H a l l C h i n S a c k W i n t e r B . D . P a r k e r P

• l

e r J a c

• b

s

14 9 9 5 4 4 3 3 3 2 2 2 2 1 1 1 1 1 1

NUMBER OF AUTHORED REVERSALS (TRIAL APPEALS) SITTING JUDGES (2000 - 2015)

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REVERSAL RATES (TRIAL APPEALS) — SITTING JUDGES 2000-2015

2.25 4.5 6.75 9 L i v i n g s t

• n

W a l k e r R a g g i N e w m a n C a b r a n e s L y n c h D r

• n

e y L e v a l H a l l K a t z m a n n K e a r s e S a c k C h i n S t r a u b P

• l

e r W e s l e y L

• h

i e r W i n t e r L

• h

i e r J a c

• b

s C a r n e y C a l a b r e s i P a r k e r

9 7.6 7.3 7.2 6.1 4.9 4.9 4.8 4.5 4 3.6 3.6 3.4 3 3 2.7 2.6 2.3 2.1 2 1.9 1.6 1.3

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What About Complete Reversals of State Court Convictions?

Conviction s — Habeas Corpus?

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Right to Cross re Motive

Nappi v. Yelich, 793 F.3d 246 (2d Cir. 7.15.15) (Jacobs, Calabresi, Lynch)

• Defendant charged in state court with possessing a gun in

violation of parole, after his wife informed on him

• Jury hung at first trial, which included “motive” evidence of

wife’s alleged affair

• Defendant convicted at retrial, where trial court excluded

evidence of affair

• Were defendant’s confrontation rights clearly violated?

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Practice tip: Courts have much less discretion to preclude evidence of a direct motive to lie, as opposed to general impeachment evidence

Ineffective Assistance of Appellate Counsel

Lynch v. Dolce, 789 F.3d 303 (6.18.2015)(Lynch, Leval, Droney)

• Appellate counsel failed to argue that trial court should have

instructed jury that, to convict petitioner of robbery by using or threatening the immediate use of a dangerous instrument, it had to find that petitioner actually possessed a dangerous instrument at the time of the crime

• District court wrongly found defendant not prejudiced because

sufficient evidence nonetheless supported finding that petitioner possessed a weapon at the relevant time; proper test under Strickland is whether there was a reasonable probability that, but for counsel’s error, the outcome would have been different

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Where Have All the Prosecutions Gone?

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Where Have All The Prosecutions Gone?

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Federal Prosecutions Down > 20%

Indictments: Informations:

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EDNY PROSECUTIONS

SOURCE: TRACFED

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2/18/2016 Prosecutions through September 2015 http://tracfed.syr.edu/results/9x7056c5cbaea9.html 1/3

Number Year­to­date 935 Percent Change from previous year 3.3 Percent Change from 5 years ago ­42 Percent Change from 10 years ago ­53.9 Percent Change from 20 years ago ­71.2

Table 1: Criminal Prosecutions

New York East Prosecutions for 2015

The latest available data from the Justice Department show that during FY 2015 the government reported 935 new prosecutions in the Eastern District of New York (Brooklyn). According to the case­by­case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is up 3.3% over the past fiscal year when the number of prosecutions totaled 905. The comparisons of the number of defendants charged with offenses are based on case­by­case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (see Table 1). Compared to five years ago when there were 1,612, the number of FY 2015 prosecutions of this type is down 42 percent. Prosecutions over the past year are lower than they were ten years ago. Overall, the data show that prosecutions of this type are down 53.9 percent from the level of 2,028 reported in 2005 and down 71.2 percent from the level of 3,241 reported in 1995. The long term trend in prosecutions for these matters going back to FY 1995 is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of prosecutions of this type recorded each fiscal year. Each presidential administration is distinguished by the color of the

• bars. To view trends month­by­month rather than year­by­year, see TRAC's monthly report series

for the latest data. Figure 1: Criminal Prosecutions over the last 20 years

Leading Program Areas

Cases were classified by prosecutors into more specific types. The single largest number of prosecutions of these matters through September 2015 was for "Narcotics/Drugs", accounting for 24.5 percent of prosecutions. The second largest number of matters were Prosecutions filed under the program area of "Withheld by Govt from TRAC " (17.4%) . The "Other" category in Figure 2 is comprised of a

SDNY PROSECUTIONS

SOURCE: TRACFED

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2/18/2016 Prosecutions through September 2015 http://tracfed.syr.edu/results/9x7056c5d0f413.html 1/3

Number Year­to­date 1,804 Percent Change from previous year 5.3 Percent Change from 5 years ago ­24.9 Percent Change from 10 years ago ­36.8 Percent Change from 20 years ago ­30.4

Table 1: Criminal Prosecutions

New York South Prosecutions for 2015

The latest available data from the Justice Department show that during FY 2015 the government reported 1,804 new prosecutions in the Southern District of New York (Manhattan). According to the case­by­case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is up 5.3%

• ver the past fiscal year when the number of

prosecutions totaled 1,714. The comparisons of the number of defendants charged with offenses are based on case­by­case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys (see Table 1). Compared to five years ago when there were 2,403, the number of FY 2015 prosecutions of this type is down 24.9 percent. Prosecutions over the past year are lower than they were ten years

• ago. Overall, the data show that prosecutions of this type are down 36.8 percent from the level of

2,854 reported in 2005 and down 30.4 percent from the level of 2,591 reported in 1995. The long term trend in prosecutions for these matters going back to FY 1995 is shown more clearly in Figure 1. The vertical bars in Figure 1 represent the number of prosecutions of this type recorded each fiscal year. Each presidential administration is distinguished by the color of the

• bars. To view trends month­by­month rather than year­by­year, see TRAC's monthly report series

for the latest data. Figure 1: Criminal Prosecutions over the last 20 years

Leading Program Areas

Cases were classified by prosecutors into more specific types. The single largest number of prosecutions of these matters through September 2015 was for "Narcotics/Drugs", accounting for 30.2 percent of prosecutions. The second largest number of matters were Prosecutions filed under the program area of "White Collar Crime " (21.1%) . The "Other" category in Figure 2 is comprised of a diverse group of

Official Corruption Prosecutions Falls to 20 Year Low Transactional Records Access Clearinghouse, 3.23.16

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White Collar Crime Convictions Continue To Decline Transactional Records Access Clearinghouse, 4.7.16

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Headed Toward More White Collar Prosecutions?— Yates Memo

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Headed Toward More White Collar Prosecutions?— Yates Memo

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Yates Memo

(l) in order to qualify for any cooperation credit, corporations must provide to the Department all relevant facts relating to the individuals responsible for the misconduct; (2) criminal and civil corporate investigations should focus on individuals from the inception of the investigation; (3) criminal and civil attorneys handling corporate investigations should be in routine communication with one another;

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Yates Memo

(4) absent extraordinary circumstances or approved departmental policy, the Department will not release culpable individuals from civil or criminal liability when resolving a matter with a corporation; (5) Department attorneys should not resolve matters with a corporation without a clear plan to resolve related individual cases, and should memorialize any declinations as to individuals in such cases; and (6) civil attorneys should consistently focus on individuals as well as the company and evaluate whether to bring suit against an individual based on considerations beyond that individual's ability to pay

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“Going forward, corporate plea agreements and settlement agreements will include a provision that requires the companies to continue providing relevant information to the government about any individuals implicated in the wrongdoing. A company's failure to continue cooperating against individuals will be considered material breach of the agreement and grounds for revocation or stipulated penalties”

• Dep, Atty, Gen, Yates

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Yates Memo Fallout

“Analyzing Early Returns on the Yates Memo,” by William F. Johnson (NYLJ 3.3.2016)

• “The government has, post-Yates Memo, requested that

companies not share certain information with counsel for their employee-witnesses during the investigation”

• “The practice is unfair to the individuals who … should

be permitted access to the information available to them at the time of the events under investigation (such as their own emails, documents, and even company-made recordings of their phone calls). [It] also prevents the company from fully defending itself because it cannot review the evidence in the investigation with its own employees or former employees”

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False Wisdom

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“It may be that a decent prosecutor could get a petit jury to convict a eunuch of rape”

• Hon. Alex Kozinski, Preface to 2015 Georgetown L.J.

Review of Criminal Procedure

False Wisdom

• Eyewitnesses are highly reliable
• Fingerprint evidence is foolproof
• Other types of forensic evidence are scientifically

proven and therefore infallible

• DNA evidence is infallible

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False Wisdom

• Human memories are reliable
• Confessions are infallible because innocent people

never confess

• Juries follow instructions
• Prosecutors play fair

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False Wisdom

• The prosecution is at a substantial disadvantage

because it must prove its case beyond a reasonable doubt

• Police are objective in their investigations
• Guilty pleas are conclusive proof of guilt
• Long sentences deter crime

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DOJ 11.4.2015 Rebuttal to Kozinski Preface

• Andrew D. Goldsmith, Associate Deputy Attorney

General, National Criminal Discovery Coordinator Office of the Deputy Attorney General

• John F. Walsh, United States Attorney, District of

Colorado; Chair – Attorney General’s Advisory Committee

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“While the preface raises several points that merit discussion, such as the reliability of certain forms

• f evidence, Judge Kozinski goes too far in casting

aspersions on the men and women responsible for the administration of justice in this country. His preface seemed to question not only the integrity of

• ur agents and prosecutors, but also the

government’s capacity to self-correct in the (very small) minority of cases when someone falls short”

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Kozinski’s Suggestions

Require open file discovery Adopt standardized, rigorous procedures for dealing with the government’s disclosure obligations Adopt standardized, rigorous procedures for eyewitness identification Video record all suspect interrogations

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Suggestions, Cont’d

Impose strict limits on the use of jailhouse informants Adopt rigorous, uniform procedures for certifying expert witnesses and preserving the integrity of the testing process Keep adding conviction integrity units Establish independent Prosecutorial Integrity Units

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Antonin Scalia

March 13, 1936 - February 13, 2016

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First Amendment

“I don’t care who is doing the speech — the more the merrier”

• Texas v. Johnson, 491 U.S. 397 (1989) (Brennan)
• provided the pivotal fifth vote holding that there is a First

Amendment right to burn the American Flag

• But said: “If it were up to me, I would put in jail every

sandal-wearing, scruffy-bearded weirdo who burns the American flag”

• R.A.V. v. St. Paul, 505 U.S. 377 (1992) (Scalia)
• finding facially invalid under First A city ordinance prohibiting

bias-oriented disorderly conduct, used to prosecute cross- burner

• "burning a cross in someone's front yard is reprehensible.

But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire”

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6th A. Right To Jury Trial/ Sentencing Guidelines

• Apprendi v. N.J., 530 U.S. 466 (2000) —

concurrence

• Blakely v. Washington, 542 U.S. 296 (2004) —

author

• U.S. v. Booker, 543 U.S. 220 (2005) — concurred

in main opinion, dissented from remedial opinion

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Confrontation

• Maryland v. Craig, 497 U.S. 836 (1990) (6th A did not bar the

use of one-way closed-circuit television to present testimony by an alleged child sex abuse victim)

• Scalia, in dissent (joined by Brennan, Marshal and Stevens):

“The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction”

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“The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction”

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Confrontation

• Crawford v. Washington, 541 U.S. 36 (2004) (Scalia): Defendant must have had
• pportunity to cross-examine witness as predicate to admitting prior testimonial

statements of witness who has since become unavailable, even if “inherently reliable”

• Giles v. California, 554 U.S. 353 (2008) (Scalia): Introduction of murder victim’s

previous report that defendant threatened to kill her violated confrontation

• clause. Forfeiture by wrongdoing applies only where purpose of conduct is to

prevent testimony

• Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (Scalia): 6th A violation to

admit a chemical drug test report (cocaine) without the testimony of the person who performed the test

• Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) — joined majority opinion of

Ginsburg, with Thomas, Sotomayor, and Kagan — defendant had right to confront analyst who certified blood-alcohol analysis report in DUI case

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Fourth Amendment

• Kyllo v. U.S., 533 U.S. 27 (2001) (Scalia) — use of thermal

imaging device to measure heat emanating from home was a search

• U.S. v. Jones,132 S.Ct.945 (2012) (Scalia) — attachment of

Global–Positioning–System (GPS) tracking device to vehicle, and subsequent use of that device to monitor vehicle's movements on public streets, was 4th A search

• Florida v. Jardines, 133 S.Ct. 1409 (2013) (Scalia) — law

enforcement officers' use of drug-sniffing dog on front porch of home, to investigate an unverified tip that marijuana was being grown in the home, was a trespassory invasion of the curtilage which constituted a 4th A search

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Fourth Amendment Dissents

• Navarette v. California, 134 S.Ct. 1683 (2014) (Thomas) —

motorist’s anonymous 911 emergency call, reporting that a pickup truck had run her off the road, was sufficiently reliable and established reasonable suspicion for stop

• Scalia dissent: “Law enforcement agencies follow closely our

judgments on matters such as this, and they will identify at once

• ur new rule: So long as the caller identifies where the car is,

anonymous claims of a single instance of possibly careless or reckless driving, called in to 911, will support a traffic stop. This is not my concept, and I am sure would not be the Framers', of a people secure from unreasonable searches and seizures… The Court's opinion serves up a freedom-destroying cocktail…”

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Fourth Amendment Dissents

• Maryland v. King, 133 S.Ct .1958) (2013)

(upholding DNA swabbing for persons arrested for “serious” offenses)

• Scalia dissent, joined by Ginsburg, Sotomayor

and Kagan: “Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime”

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Gleeson Legacy

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“The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.” —Bryan Stevenson, Just Mercy: A Story of Justice and Redemption

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Prior Felony Informations under 21 U.S.C. § 851 U.S. v. Kupa, 976 F.Supp.2d 417

“There was no suggestion that Congress enacted § 851 so prosecutors could use their newfound discretion to trigger enhanced punishments as a tool to strong-arm federal defendants into pleading guilty or to punish those who exercise their right to a trial“

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U.S. v. Kupa, Cont’d

“My focus here is narrow and my point is simple: as the defendant Lulzim Kupa's case and countless

• thers show, the government abuses its power to

file prior felony informations in drug trafficking

• cases. The single most important factor that

influences the government's decision whether to file or threaten to file a prior felony information (or to withdraw or promise to withdraw one that has previously been filed) is illegitimate”

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Holder Policy

The 8/12/13 Holder Memo provides that the decision to file the § 851 prior felony complaint requires consideration of the following factors:

• Whether the defendant was an organizer, leader, manager or

supervisor of others within a criminal organization;

• Whether the defendant was involved in the use or threat of

violence in connection with the offense;

• The nature of the defendant's criminal history, including any

prior history of violent conduct or recent prior convictions for serious

• ffenses;
• Whether the defendant has significant ties to large-scale drug

trafficking organizations, gangs, or cartels;

• Whether the filing would create a gross sentencing disparity

with equally or more culpable co-defendants; and

• Other case-specific aggravating or mitigating factors.

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Practice Tip: Whenever the government threatens to file a § 851 prior felony complaint, consider submitting a letter to the USAO and Main Justice arguing why the complaint would be inconsistent with the Holder Policy

Disclosing Proffers of Non- Cooperating Defendants

U.S. v. Rivera, 117 F.Supp.3d 172 (7.22.15)

May the Department of Probation inform the sentencing court of inculpatory statements made by the defendant at a proffer that did not result in a cooperation agreement?

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U.S. v. Rivera, Cont’d

“In any prosecution brought against Client…, the Office will not offer in evidence any statements made by Client at the Meeting (A) in its case-in-chief or (B) at sentencing [with certain exceptions]. The Office will, to the extent it believes it is required by law, notify the Probation Department and the Court in connection with sentencing of any [relevant] statements made by Client at the Meeting”

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U.S. v. Rivera, Cont’d

• Government Argument: 18 U.S.C. § 3661 provides that the

court can consider, without limit any and all information relevant to sentencing

• The Court: Fact that court may consider all information

doesn’t mean it should receive information parties agreed should be excluded:

• “Against th[e] extensive backdrop of [the government’s]

withholding (and sometimes even misrepresenting) facts, the government's current insistence that it feels required by statute to tell judges all facts relevant to all sentences is difficult to take seriously”

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U.S. v. Rivera, cont’d

• Government Argument: To the extent the proffer agreement

includes a promise to withhold Rivera's proffer statements from the Court, such a promise is unenforceable because it is contrary to public policy as expressed by the Second Circuit

• The Court: “One wonders both why the government executed

such an agreement with Rivera if it actually believes it was contrary to public policy to do so, and why it continues to execute substantially identical agreements with proffering defendants to this day”

• In any event Second Circuit holdings do not support the

government’s position

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NYLJ 11.20.15: “EDNY Judges No Longer Told of Proffer Admissions”

“The Eastern District U.S. Attorney's Office has discontinued a policy of notifying sentencing judges about proffer statements that defendants make in unsuccessful cooperation agreement talks”

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Resentencing to Correct Excessive Sentence

U.S. v. Holloway, 68 F.Supp.3d 310 (7.25.14)

“A federal judge concluded Tuesday that a man who has spent approximately 19 years of a 58- year sentence in prison for multiple armed carjackings had paid his debt to society and resentenced him to time served. The outcome, said Gleeson, was "not a matter of grace. It is an effort on our part to do what we're here to do: administer justice”

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Expungement

Doe v. U.S., 110 F.Supp.3d 448 (5.21.15)

Granting expungement to naturalized citizen from Haiti and single mother of four, convicted of relatively minor health care fraud, and who lost several jobs when employers learned of her conviction

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Follow Up: Shortly after Doe, SDCA District Judge Larry Burns granted similar relief

Certificate of Rehabilitation

U.S. v. Doe, 15-MC-1174 (JG) (3.7.16)

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SUPREME COURT REVIEW

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Mens Rea for Threats

Elonis v. U.S., 135 S.Ct. 2001 (2015) (Roberts)

To convict defendant of transmitting in interstate commerce “any communication containing any threat ... to injure the person of another,” (18 U.S.C. § 875(c)) is it enough to prove that a reasonable person would have regarded the communication as a threat or must the government prove that the defendant intended that communication be viewed as a threat?

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Elonis v. U.S., Cont’d

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Elonis v. U.S., Cont’d

Jury instruction as given: “A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression

• f an intention to inflict bodily injury or take the life of

an individual.”

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Elonis v. U.S., Cont’d

• Mens rea must be proved even though not included in

statutory language

• “General rule” is that a guilty mind is “a necessary element

in the indictment and proof of every crime

• In some cases, a general requirement that defendant act

knowingly is sufficient, but where such a requirement “would fail to protect the innocent actor,” the statute “would need to be read to require ... specific intent”

• Instruction’s “reasonable person” language was a feature
• f civil tort liability not appropriate to convict of crime

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Elonis v. U.S., Cont’d

Section 875(c)'s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat

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Mens Rea For Selling Analogue Drugs

McFadden v. U.S., 135 S.Ct. 2298 (6.18.2015) (Thomas)

• Defendant charged with selling analogue drugs (here, bath salts,

producing effects such as cocaine or methamphetamine)

• Court instructed the jury that the statute required that “the

defendant knowingly and intentionally distributed a mixture or substance that has” substantially similar effects on the nervous system as a controlled substance and “[t]hat the defendant intended for the mixture or substance to be consumed by humans”

• Appeals court: “intent element [in the Act] requires [only] that the

government prove that the defendant meant for the substance at issue to be consumed by humans”

• Right or wrong?

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McFadden, Cont’d

• Held:

Knowledge requirement can be established in two ways. First, it can be established by evidence that a defendant knew that the substance with which he was dealing is some controlled substance—that is, one actually listed on the federal drug schedules

• r treated as such by operation of the Analogue Act—regardless of

whether he knew the particular identity of the substance. Second, it can be established by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue

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Justice ROBERTS, concurring in part and concurring in the judgment. I join the Court's opinion, except to the extent that it says the Government can satisfy the mental state requirement of Section 841(a)(1) “by showing that the defendant knew the identity of the substance he possessed…” In cases involving well-known drugs such as heroin, a defendant's knowledge of the identity of the substance can be compelling evidence that he knows the substance is controlled. But that is not necessarily true for lesser known drugs Practice Tip: Numerous statutes have ambiguous mens rea requirements; resist any instructions that don’t require the government to prove the defendant, on some level, understood he was acting wrongfully

McFadden, Cont’d

76

Confrontation: Ohio v. Clark, 135 S.Ct. 2173 (2015) (Alito)

Were three-year-old’s statements to teacher identifying defendant as his abuser primarily “testimonial” under the Confrontation Clause?

• “Primary purpose test” not always dispositive
• Also relevant:
• Was statement considered testimony at time of the

Founding?

• Was statement to a law enforcement officer?
• Was statement made during an ongoing

emergency?

77

Ohio v. Clark, Cont’d

Irony: Three-year old’s out-of-court statements are admitted to convict defendant of serious crime, but he is deemed incompetent to testify in court, and no 6th violation found because her out-of-court statements were not “testimonial”

78

Ohio v. Clark, Scalia, Concurring

“I write separately, however, to protest the Court's shoveling

• f fresh dirt upon the Sixth Amendment right of confrontation

so recently rescued from the grave in Crawford v. Washington…For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “ ‘indicia of reliability.’ ” Ohio

• v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531 (1980).

Prosecutors, past and present, love that flabby test… Crawford remains the law…The author unabashedly displays his hostility to Crawford and its progeny, perhaps aggravated by inability to muster the votes to overrule them….”

79

Residual Clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), held unconstitutionally vague Offending language: term “violent felony” includes crime that “otherwise involves conduct that presents a serious risk of physical injury to another” “[I]nvoking so shapeless a provision to condemn someone to prison for 15 years to life does not comport with the Constitution's guarantee of due process”

Vagueness Of ACCA Residual Clause: Johnson v. U.S., 135 S.Ct. 2551 (6.26.15) (Scalia)

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Post-Johnson

• Circuits hold 18 U.S.C. § 16 (similarly defining “crime
• f violence” for purposes of Title 18) unconstitutional
• United States v. Gonzalez-Longoria, 813 F.3d 225

(5th Cir. 2016) (rehearing en band granted 2.26.16);

• United States v. Vivas–Ceja, 808 F.3d 719, 720

(7th Cir.2015);

• Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.2015)

81

Johnson Retroactive

Welch v. U.S. (4.18.16):

Johnson announced a new substantive rule that would be retroactive on collateral review Government had agreed in Welch that Johnson is retroactive (SC appointed amicus to argue non- retroactivity)

82

Eleventh Circuit concurrence lists 100+ cases now made viable now that Welch clarified Johnson's retroactivity

In re Robinson, No. 16-11304 (11th Cir. April 19, 2016) (Beverly Martin, concurring) “[B]elow is a list of every case I know of in which this court denied an application from a prisoner seeking to file a second or successive 28 U.S.C. § 2255 petition based on Johnson. I share this list in the hope that these prisoners, who filed their applications without a lawyer’s help, may now know to refile their applications

83

YO Adjudications Under The ACCA

U.S. v. Sellers, 784 F.3d 876 (4.27.15) (Droney)

Does a drug conviction under New York law that resulted in a youthful offender adjudication qualify as a predicate conviction under the ACCA?

84

Pre-Trial Seizure of Untainted Assets

Luis v. U.S., 136 S.Ct. 1083 (3.30.16) (Breyer, plurality opinion)

Does the pretrial restraint of legitimate, untainted assets belonging to a defendant charged with violating federal health care of banking laws (18 U.S.C. § 1345), and needed to retain counsel of choice, violate the Sixth Amendment?

85

Luis v. U.S., Cont’d

“The relevant difference [between this case and Caplin & Drysdale and Monsanto] consists of the fact that the property here is untainted; i.e., it belongs to the defendant, pure and simple”

86

Luis v. U.S., Cont’d

Justice Thomas’s concurrence: “The asset freeze here is not merely an incidental burden on the right to counsel of choice; it targets a defendant’s assets, which are necessary to exercise that right, simply to secure forfeiture upon conviction. The prospect of that criminal punishment, however, is precisely why the Constitution guarantees a right to counsel. The Sixth Amendment does not permit the Government's bare expectancy of forfeiture to void that right”

87

Does Forfeiture Notice In Indictment Establish Necessary Nexus Between Crime and Seized Property?

U.S. v. Cosme, 796 F.3d 226 (8.10.15) (Walker)

Does inclusion of forfeiture demand in indictment establish existence of probable cause to seize identified property, precluding separate post-seizure due process hearing?

88

Brady Violation

Wearry v. Cain, 136 S.Ct. 1002 (3.7.16)(pc)

• Capital convictions reversed for Brady violations, including post-

trial revelations that:

• Lynchpin witness Scott ascribed conduct to a co-conspirator

that likely was impossible given the co-conspirator’s recent surgery

• Scott coached an inmate to lie about the murder
• Scott may have implicated defendant to settle a personal score
• Prosecutor suggested that second witness — Brown — had not

received a benefit for testifying but withheld fact that he sought — and still might receive — one

89

Brady Violation

Lewis v. Conn. Com’r of Corr., 790 F.3d 109 (5.14.2015) (Walker)

• Contrary to state court’s finding, Brady does not

incorporate a “due diligence” test

• Brady’s “should have known” standard speaks to facts

already within the defendant's purview, not those that might be unearthed by taking affirmative steps

• The prosecutor’s asserted good faith — i.e. that he was

unaware of the evidence — is irrelevant since, at least, the police knew

90

91

Limits Of FISA

ACLU v. Clapper, 785 F.3d 787 (5.7.15) (Lynch)

FBI and NSA’s collection of virtually all telephone metadata associated with telephone calls made by and to Americans found not relevant to authorized counterterrorism investigations and exceeded authority granted by the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C.A. § 1861

92

ACLU v. Clapper, Postscript

Subsequent to ACLU v. Clapper, Congress passed the Freedom Act, which effectively put an end to the telephone metadata program and created an alternative program See ACLU v. Clapper, 804 F.3d 617 (10.29.15)

93

Seizure Must End When Cause Dissipates

U.S. v. Watson, 787 F.3d 101 (5.21.15) (Rakoff)

Officer’s close-up viewing of suspect negated possibility he was robbery suspect and further restraint and search were therefore unlawful “The rule that the government would have us adopt has the practical effect of permitting police

• fficers to search any black male who

is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face”

94

Warrant To Search Wrong Apartment

U.S. v. Bershchansky, 788 F.3d 102 (6.5.15) (Chin)

Did agents act in good faith when they searched “Apt. No. 1” with a warrant that authorized the search of “Apt. No. 2”?

95

SENTENCING

96

Recidivism Among Federal Offenders: A Comprehensive Overview United State Sentencing Commission, March 2016

97

Over an eight year follow-up period, almost one-half of federal offenders released in 2005 (49.3%) were rearrested for a new crime or rearrested for a violation of supervision conditions

Almost one-third (31.7%) of the

• ffenders were

also reconvicted, and

• ne-quarter

(24.6%) of the

• ffenders were

reincarcerated

• ver the same

study period

98

Of those

• ffenders who

recidivated, most did so within the first two years of the eight year follow-up

• period. The

median time to rearrest was 21 months

A federal

• ffender’s

criminal history was closely correlated with recidivism rates. Rearrest rates range from 30.2 percent for

• ffenders with

zero total criminal history points to 80.1 percent of

• ffenders in the

highest Criminal History Category, VI

Offenders released prior to age 21 had the highest rearrest rate, 67.6 percent, while offenders

• ver sixty years
• ld at the time
• f release had a

recidivism rate

• f 16.0 percent

Rule of Lenity

U.S. v. Pierce, 785 F.3d 832

Defendant is convicted of two 924(c) counts, one requiring mandatory minimum 5 (firearm possessed) and the other mandatory minimum 10 (firearm discharged). Which one is raised to the 25-year minimum as a second 924(c) conviction? 5 10 +25 or +25 30 35

99

Aiding and Abetting 924(c) Offense

U.S. v. Prado, 815 F.3d 93 (2.24.16) (Pooler)

• Reversing conviction under 18 U.S.C. § 924(c) for

using/carrying gun in furtherance of crime of violence reversed because aiding and abetting instructions violated Rosemond v. U.S., 134 S.Ct. 1240 (2014)(Kagan)

• Instruction did not require jury to find that the

defendants joined in criminal venture with full knowledge of its scope and had advanced knowledge of the firearm at the time that they could have chosen not to participate in the crime

100

Alan Ellis: Advice on Sentencing Advocacy from Judges Who Sentence

“Many lawyers don’t submit sentencing memoranda and those who do, submit it on the eve of sentencing or submit poor ones. Get me everything well in advance of the

• hearing. If you’ve got five or six good character letters, put

them in the sentencing memorandum, quote from them, and attach them as Exhibit A. Put the rest in a later exhibit” “Tell me something I don’t know about your client. Don’t regurgitate what’s in the Presentence Report” “In child pornography cases, I am interested in risk assessments”

101

Sentencing Advocacy, Cont’d

“I welcome sentencing recommendations from defense counsel unless they are ridiculously low. When this happens, the lawyer loses his credibility with me” “I get annoyed when lawyers cite Booker and 18 U.S.C. §3553(a) factors as if I didn’t know the law” “Psychological reports are particularly helpful if I know and respect the expert. If however, the report is based on erroneous information provided by the client, it will carry little if any weight with me” “I appreciate community service, particularly if a defendant performed it prior to sentencing and there is a good letter from the agency asking that he be allowed to perform community service. It is even more important to me if your client has performed community service even before he knew he was under investigation or charged”

102

Sentencing Advocacy, Cont’d

“If you have a case on point that is factually and legally close to your case wherein another judge in my district has imposed a relatively low sentence, it carries some weight with me, assuming, of course, that I respect that judge” “With character letters, I am looking for good deeds that are unknown to others. For example, a defendant who has done something for an elderly disabled neighbor such as shoveling ice from her sidewalk without any thought of obtaining anything in return” “I’d rather have 50 character witnesses pay $100 each toward a defendant’s restitution rather than provide 50 character letters” “I put a lot of stock in collateral civil consequences of your client’s conviction particularly if he is in a small community and will be shunned by his neighbors. This has a big impact on me”

103

104

Mitigating Effects of Conviction — Ban the Box

Effective October 27, 2015, New York City’s Fair Chance Act prohibits an employer with at least four employees from making an inquiry about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been extended

105

Child Pornography Sentences

ABA Journal August 2015: “U.S. District Judge James S. Gwin of the Northern District of Ohio polled a jury in February about what jurors thought a suitable sentence would be for Ryan Collins, a child pornography defendant who was found guilty of having 19 videos and 93 still images on his computer. The jury recommended, on average, a 14-month sentence. Gwin then sentenced Collins to serve five years … significantly shorter than the government's 20-year recommendation”

106

Graphic Censured

Latest From Judge Weinstein

U.S. v. R.V., 2016WL270257 (1.21.16)

“Judge Gives Man 5 Days for Child Porn, Rails Against Harsh Sentences”

107

“New York Police Are Using Covert Cellphone Trackers, Civil Liberties Group Says,”

by Joseph Goldstein (NYT, 2.11.16)

“Covert cellphone tracking devices, which have proliferated in law enforcement agencies across the nation, have been used by the New York Police Department

• n at least 1,000 occasions since 2008 in the

course of investigating rapes, murders and other crimes, as well as in searches for missing people, according to documents obtained by the New York Civil Liberties Union”

108

Trulincs/Corrlinks

109

Trulincs/Corrlinks

110

TRULINCS/ CORRLINKS

AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES FEBRUARY 8, 2016 RESOLUTION RESOLVED, That the American Bar Association urges the Department of Justice and the Federal Bureau of Prisons to amend their policies with respect to monitoring emails between attorneys and their incarcerated clients to permit attorneys and their incarcerated clients to communicate confidentially via email and thereby maintain the attorney-client privilege

111

NEAR UNIVERSAL CONDEMNATION OF AUSA REVIEW OF ATTORNEY-CLIENT EMAILS

• “When it comes to Privilege, You’re Better Off Dead: Protecting

Attorney-Client Communications Sent Through Prison Email Systems,” by Christopher J. Milazzo, CORNELL J.L. & PUB. POL’Y (2015)

• “Inmates’ E-mails with Their Attorneys: Off-Limits for the

Government?” by Amelia H. Barry, CATH. U. L. REV. (Spring 2015)

• “Should the Medium Affect the Message? Legal and Ethical

Implications of Prosecutors Reading Inmate-Attorney Email,” by Brandon Parker Ruben, FORDHAM L. REV., March 1, 2015

• “Read, White, and Blue: Prosecutors Reading Inmate Emails and

the Attorney-Client Privilege,” 48 J. Marshall L. Rev. 1119, by Danielle Burkhardt (2015)

112

• H. R. 3864

The Effective Assistance of Counsel in the Digital Era Act

A BILL To prevent certain monitoring and interception by Federal authorities of Federal prisoner communications that are subject to attorney-client privilege Odds of passing the Republican Congress?

113

• H. R. 3864

Prognosis: 1% chance of being enacted

Source: govtrack.us

114

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