Sunday, November 30, 2008

Embassy Suite

In re Terrorist Bombings of U.S. Embassies in East Africa, No. 01-1535-cr (2d Cir. November 24, 2008) (Feinberg, Newman, Cabranes, CJJ)

This trio of long opinions, captioned In re Terrorist Bombings of U.S. Embassies in East Africa, resolves the appeals of the defendants convicted of the embassy bombings in Kenya and Tanzania in 1998. One opinion deals with trial and sentencing issues, the second deals specifically with Fifth Amendment claims, and the third deals specifically with Fourth Amendment claims. The convictions of all defendants were affirmed, although one defendant asked for, and received, a Fagans remand.

The Trial Opinion

This opinion covers a host of issues, some of which are surprisingly mundane and are treated rather cursorily by the court. A few, however, are more interesting and are discussed here.

1. The Capital Indictment

Defendant Al-'Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency of the capital counts in the indictment. Specifically, he claimed that those counts did not sufficiently allege statutory aggravating factors, as required by Ring v. Arizona, 536 U.S. 584 (2002). The circuit found that the indictment was sufficient, because each capital count alleged the requisite intent and at least one statutory aggravator.

2. The Classified Information Procedures Act

Defendant El-Hage raised a number of claims relating to the procedures the district court invoked under CIPA. He first claimed that the district court erred in limiting access to classified information to persons with a security clearance. While El-Hage’s attorney received such a clearance, he himself did not. As a result, there was evidence that only his counsel could see. The court held that CIPA authorizes such limitations “as long as the application of this requirement does not deprive the defendant of evidence that would be useful to counter the government’s case or bolster a defense.” Here, the district court committed no error in imposing a security clearance requirement given the nature of the case.

El-Hage also argued that the security clearance requirement violated both his Fifth and Sixth Amendment rights. The circuit disagreed. It first noted that the materials at issue were not discoverable under Rule 16 and that, even if they had been, El-Hage’s interest in personally inspecting them was outweighed by the government’s interest in avoiding disclosure of matters that, in the interest of national security, should not be divulged. Indeed, the “production of materials to a party’s attorney alone falls within the common meaning of ‘discovery.’” Moreover, here, the government agreed to stipulate to the information that El-Hage sought to introduce, stipulations that in some instances were better for El-Hage than the actual evidence. Accordingly, there was no violation of his right to present a defense.

Nor did the restriction violate El-Hage’s right to counsel; it fell within the narrow category of situations where a court can restrict a defendant’s ability to consult with his attorney. Here, El-Hage’s attorneys were permitted to share the relevant facts with him, even though they could disclose the actual materials.

Finally, El-Hage’s exclusion from the district court’s CIPA hearings did not violate his Fifth Amendment right to be present. The justification for doing so was compelling - the need to avoid jeopardizing lives through the unauthorized disclosure of sensitive information. Moreover, El-Hage’s ties to Osama Bin Laden created a strong reason to doubt that he could keep the classified information confidential. His attorneys were present and permitted to participate in the hearings, and the matters at issue “bore no relationship at all to the question of [his] guilt or innocence.”

3. Severance

El-Hage also argued that his case should have been severed from the death-eligible defendants for trial. The circuit rejected out of hand his claim that he was prejudiced by being tried by a “death qualified” jury. It also rejected his claim that his defense and theirs were antagonistic because the death-eligible defendants “attempted to rationalize the targeting” of the embassies and “elicited evidence about the violent nature of al Qaeda” in an effort to “emphasize their lesser culpability.” El-Hage claimed that this prejudiced him because it represented an attempt to justify acts that he considered unjustifiable and because it undermined his claim that he was unaware of the violent agenda of his Al Qaeda associates. But the circuit found “no conflict” between El-Hage’s position and his co-defendants' strategy.

4. Post-Conviction Disclosure of a Prosecution Witness’ Statements

Several months after trial, the government discovered that twelve of the government’s pretrial teleconferences with a cooperating witness had been videotaped by that witness’ liaison to the witness security program. After the government received the videos, they transcribed them and turned them over to the defense. El-Hage then moved for a new trial under Rule 33.

The circuit found no abuse of discretion in the denial of that motion. First, those responsible for the discovery violation were not the prosecutors, but representatives of the United States Marshals service, who did not intentionally commit a discovery violation; indeed, they had “no idea they were” obligated to produce the tapes. In addition, there was no reasonable probability that the result would have been different if the evidence had been disclosed before trial.

5. Sentencing Issues

El-Hage challenged several aspects of the district court’s calculations under the sentencing guidelines. Of particular note was his claim that the hate crime enhancement should not apply.

El-Hage received the hate crime enhancement because he selected his victims based on their national origin. His primary argument was that his victims were selected out of his political beliefs, and not out of hatred. But the “line ... between political activism and hate as the basis for the selection of his victims is a false distinction.” The enhancement does not turn the defendant’s motivations; it turns on intent. As long as the defendant intentionally selected any victim on the basis of one of the listed factors, there is no “good reason” for doing so, and the enhancement applies.

He also argued that he selected victims based on their United States citizenship, and not their national origin. This was “[e]ven less persuasive,” since the jury found that he conspired to murder “nationals of the United States,” and there are categories of persons who are nationals, but not citizens. In any event, there was no evidence that al Qaeda distinguished between United States citizens and others with ties to the United States, thus no evidence that the conspiracy in fact selected its victims based on citizenship and not national origin.

The court rejected all of El-Hage’s other sentencing claims, but, as noted above, granted him a Fagans remand since the district court treated the guidelines as mandatory, and the error was preserved.

The Fifth Amendment Opinion

Two defendants were interrogated by U.S. representatives abroad, and raised Fifth Amendment challenges to the introduction of the resulting statements at trial.

The circuit agreed that the Fifth Amendment’s self-incrimination clause prohibited the use at an American criminal trial of involuntary statements taken by agents of the United States in foreign countries. Here, however, there was no credible claim that the statements were actually coerced or involuntary; the issue was whether, and to what degree, Miranda applied. The circuit “assumed” but did not actually hold, that the Miranda “framework” should apply to U.S.-conducted interrogations overseas: “we proceed on the assumption that the Miranda ‘warning/waiver’ framework generally governs the admissibility in our domestic courts of custodial statements obtained by U.S. officials from individuals during their detention under the authority of foreign governments.” But, given the variations in foreign law with respect to the right to counsel, there is a great deal of flexibility in how the warnings can be worded.

Here, the defendants were correctly advised that they had the right to remain silent, were not required to speak at all, and that if they did speak their statements could be used against him. There was some difficulty, however, as to how the right to counsel was explained. Both defendants were initially given an advice of rights form (the “AOR”) that explained that, in the United States, they would have the right to speak to attorney, to have the attorney present during questioning, and to have counsel appointed before any questioning, but that because they were not in the United States, there was no way to “ensure” that counsel could be appointed before questioning. A short time later, each was read standard Miranda rights by an AUSA.

The district court found significant problems with the AOR’s treatment of the right to counsel - in that court’s view the AOR seemed to indicate that the arrestee had no opportunity to obtain counsel before or during questioning. The circuit did not think that the AOR was that bad - it did not indicate that counsel was unavailable, only that because the suspects were not in the United States, under local law the U.S. agents “could not ensure” that counsel would be appointed. That said, the court noted that the “advice as to the right to counsel could have been made clearer.” U.S. agents working abroad are not required to study local criminal procedure and urge local authorities to provide counsel, if requested, so as to “replicate” Miranda. The agents are supposed to be a source information to the suspects, not their advocates. Thus as long as they advise them of their rights under the U.S. Constitution and the procedures through which they might vindicate those rights locally, Miranda is satisfied.

The court also suggested alternative language for the AOR to avoid any future misunderstanding by a suspect. The AOR should state what rights are available, not what rights would be available had the interrogation occurred in the United States. The circuit’s suggested AOR would inform suspects that whether they can retain counsel, have counsel appointed, or consult with counsel before questioning depends on local law.

The Fourth Amendment Opinion

Defendant El-Hage, a United States citizen, argued that the warrantless search of his residence in Nairobi, Kenya, and the warrantless monitoring of his Kenyan telephone lines, all by U.S. agents, violated the Fourth Amendment. The circuit held that the Fourth Amendment’s warrant requirement does not apply to foreign searches of U.S. citizens by U.S. agents; such searches “need only satisfy the Fourth Amendment’s requirement of reasonableness.”

The court offered several reasons for recognizing an exception to the warrant requirement for “foreign soil” searches. First, “nothing in our history or precedents” suggests that U.S. agents must obtain a warrant in a domestic court before conducting an overseas search. Second, “nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own.” Third, “if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation.” Finally, there is no apparent authority for U.S. judicial officers to issue warrants for overseas searches.

Here, the warrantless searches were reasonable, and in fact El-Hage did not “explicitly contest the District Court’s reasonableness determination.” The intrusions into El-Hage’s privacy were outweighed by the government’s “manifest need to monitor his activities as an operative of al Qaeda because of the extreme threat al Qaeda presented, and continues to present, to national security.”

The search of El-Hage’s home occurred during the daytime, in the presence of his wife, and was limited in scope. It “was not covert,” was under the authority of a “Kenyan warrant authorizing [a search],” and the agents gave his wife an inventory of the items seized. Moreover, the search occurred only after several months of investigation revealed that El-Hage was an al Qaeda operative; thus, it was not based on a “whim” or an “unsubstantiated tip.”

The monitoring of El-Hage’s telephone lines was also reasonable, even though it lasted a year, covered many calls made for social, family or business purposes, and the surveillance was not properly “minimized.” The court recognized the “significant invasion of privacy” that El-Hage suffered. Nevertheless, the court agreed that this invasion was outweighed by the government’s interest in investigating “threats to national security presented by foreign terrorist organizations.” Organizations like al Qaeda - “complex, wide-ranging, and decentralized” - require sustained and intense monitoring. Moreover, foreign intelligence must “delve into the superficially mundane because it is not always readily apparent what information is relevant.” In addition, terrorists often “communicate in code, or at least through ambiguous language” and decoding their messages is “further complicated” by the fact that the communications occur in foreign languages.

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Saturday, November 29, 2008

Simply Possession

Alsol v. Mukasey, No. 07-2068-ag (2d Cir. November 14, 2008) (Calabresi, Straub, Raggi, CJJ)

This decision, although an immigration case, clarifies an important legal issue that also arises in criminal cases.

Here, each petitioner had been convicted of two New York State drug misdemeanors involving simple possession of a controlled substance. The immigration courts, relying on the circuit’s decision in United States v. Simpson, 319 F.3d 81 (2d Cir. 2002), held that the second simple possession misdemeanor was a “drug trafficking crime,” and hence an aggravated felony, because such an offense could have been prosecuted as a felony under federal law. The immigration consequences were profound, as each defendant was denied “cancellation of removal,” the only available relief from deportation.

The circuit disagreed, however, and granted the two petitioners relief. The relevant immigration statute, 8 U.S.C. § 1101(a)(43), includes as an aggravated felony any “drug trafficking crime,” a phrase that includes any “felony punishable under” the Controlled Substances Act, 21 U.S.C. § 801 et seq. (the “CSA”). Under the CSA, simple possession of controlled substance, generally, is a misdemeanor. However, if a person commits simple possession of a controlled substance after a prior conviction for any drug offense, he can be exposed to a felony under the CSA if the government invokes, and the court complies with, the notice procedures set out in 21 U.S.C. § 851.

But that a second state controlled substance misdemeanor could be prosecuted as a felony in federal court under the CSA is not enough. The question is not whether the state conduct could have been charged and punished as a federal felony; rather, only a “state offense of conviction that is [itself] punishable as federal felony is an aggravated felony.” Under the “categorical approach,” the inquiry is limited to the elements and nature of the state offense, and not the particular facts underlying it. Accordingly, the “fact of recidivism must be reflected in the conviction the government seeks to classify as an aggravated felony, not merely in petitioner’s underlying conduct.” Where an alien has been convicted of simple possession of a controlled substance and did not either admit his status as a recidivist or have it determined by a court or jury within the prosecution for the second offense, there is no conviction for an aggravated felony.

The court went on to make clear that the contrary language in Simpson was dictum; it was “not necessary to the analysis” or holding of that case.


Thursday, November 20, 2008


United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ)

In an interesting companion to Brinson v. Walker [blogged below under the title "Confrontation Claws"], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence.

At Edwin Figueroa’s gun possession trial, he wanted to cross-examine a government witness about the fact that the witness had swastikas tattooed on his body. Since Figueroa was a member of a minority group, he argued that the tattoos would show that the witness was biased. Citing Rule 608, the district court precluded the questioning as inadmissible evidence of “bad character.”

On appeal, the circuit disagreed, holding that precluding the cross-examination violated the Confrontation Clause. “Inasmuch as the tattoos suggested that [the witness] harbored animus against racial or ethnic minority groups and their members, they were relevant to and probative of [his] credibility, bias, and motive to lie when testifying against Figueroa.” On the facts here, however, the error was harmless, since the witness was one of several who tied Figueroa to the gun.

Of particular interest in this opinion is the court’s discussion of the relevant rules of evidence. The court held that the district court erred “as a matter of law” in precluding the evidence under Rule 608. Impeachment for bias is admissible under Rule 402 even if the impeachment materials are not independently admissible under Rule 608 as “concerning” the witness’ “character for truthfulness or untruthfulness.” The opinion also noted that, since the district court did not exclude the testimony under Rule 403, there was no basis for reviewing its ruling on Rule 403 grounds. However, the court suggested that “[b]ased on the proverbial cold record before us, the reasons the court excluded the relevant tattoo evidence seem relatively modest compared to the Rule 403 factors favoring admissibility,” although it ultimately “express[ed] no opinion” as to whether excluding the evidence under Rule 403 would have been within the trial court’s discretion.

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Friday, November 14, 2008

Summary Summary

This week there were three interesting summary orders:

In United States v. Solano, No. 07-1656-cr (2d Cir. November 14, 2008), the government repeatedly insisted before trial that a detective had not taken notes when he interviewed the defendant. Mid-trial, the government did an about-face and disclosed that the notes had once existed but had been destroyed. The circuit granted the defendant no relief, but did note that the government’s behavior “was far from exemplary. We would expect the government to review their procedures to assure against a repetition.”

In United States v. Johnson, No. 07-5356-cr (2d Cir. November 12, 2008) the court granted a Regalado remand even though the defendant did not ask for one on appeal.

And, in United States v. Medley, No. 06-3204-cr (2d Cir. November 12, 2008), defense counsel did not file a timely notice of appeal, despite his assurances to the client that he would. The appellate court remanded the case to the district court with instructions to enter a new judgment from which a timely appeal could be taken.

Confrontation Claws

Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ)

In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause.

Brinson, the petitioner, testified at trial that this was not a robbery, but rather a small - ten-dollar - marijuana sale that had gone bad. He had hoped to raise a defense that the witness’ robbery accusation was false, and was motivated by a racial hatred of African-Americans. Defense counsel had a compelling offer of proof: first, he indicated that the witness had refused to serve African-Americans when he worked as a waiter, and that he was prepared to call the victim’s supervisor if the witness denied it. In addition, an acquaintance of the witness was prepared to testify that the victim had “used a demeaning racial epithet in her presence.” Nevertheless, the state trial court refused to let the defense pursue this, holding that it was irrelevant because those particular events occurred after the robbery. The Appellate Division affirmed on a different ground - that the evidence would demonstrate only “general ill will of the complainant and not his specific hostility toward defendant.”

A federal magistrate granted Brinson’s habeas petition, and the circuit affirmed. “[A]t least where the racial bias sought to be exposed is of sufficient intensity that it is reasonably likely to result in the falsification of the witness’s testimony against the accused, a preclusion of cross-examination on the ground that racial bias is general and not specifically directed against the defendant is an unreasonable application of Supreme Court decisional law.” This does not necessarily mean that a trial judge must permit cross-examination on “even the mildest forms of a witness’s bias relating to a class to which the defendant belongs.” But here, the offer of proof established an “extreme form” of bias in the witness, one of “such intensity [that it] might distort his testimony against an object of his bias on account of it.” It was not “within a trial court’s reasonable discretion to preclude this cross-examination.”

Moreover, the confrontation violation was not harmless. The witness’ testimony was critical to the prosecution’s case, because he was the sole witness to the alleged robbery, and there was no other evidence to corroborate his accusation. Moreover, Brinson had no money on him when he was found by the police a short time after the alleged robbery, which “raise[d] some doubt about the accusation.” In addition, the cross-examination that the trial court did permit did not cure the error because all that the court permitted was a single question about whether the witness had used a racial epithet, and the victim denied it. Finally, overall, the prosecution’s case was “far from overwhelming” and the cross-examination that was prohibited was “of a nature that was likely to affect the result.”

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Uninformed Consent

United States v. Lopez, No. 081269-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

Albert Lopez violated his supervised release by failing a drug test, and marshals went to his house to arrest him. After he was cuffed, the marshals took his girlfriend upstairs to get clothes for him. Once there, they asked the girlfriend if they could search the bedroom. She gave consent and the marshals found a loaded gun under a pillow. Lopez was charged with possessing the gun, and moved to suppress arguing that the search of the bedroom was unreasonable because, although the girlfriend consented, the marshals did not seek his consent.

On appeal, the circuit disagreed. Under the relevant Supreme Court precedents, the Fourth Amendment permits searches consented to by a co-occupant. Nor did Lopez’ case present a situation like that in Georgia v. Randolph, 547 U.S. 103 (2006), which held that where one occupant consents to the search but the other objects, the search is unreasonable as to the objector. Rather, “having obtained the consent of one co-occupant, the officers are under no obligation to inquire of the other occupant whether he consents, even when the other occupant is present at the premises when the consent is given.” Indeed, dictum in Randolph specifically noted that officers are not required to seek consent from potential objectors.

Here, the girlfriend’s consent was voluntary, and there was no claim that the marshals separated her from Lopez to hide the fact that they were going to solicit her consent. Nor did it matter that the marshals would not have to “find” Lopez because he was right downstairs. Consent by a co-occupant suffices even when a potentially objecting co-occupant is readily accessible.

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False Promise

United States v. Buie, 07-0258-cr (2d Cir. November 13, 2008) (McLaughlin, Leval, Pooler, CJJ)

For a drug conviction to be an ACCA predicate, it must be of an offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). David Buie pled guilty to a drug offense in New Jersey that carried a ten-year statutory maximum, but at his plea hearing the judge promised that he would not sentence Buie to more than eight years: “The [eight-year] plea bargain is the maximum. I could go under. I can’t go over.” The court of appeals rejected Buie’s argument that this promise took the conviction out of ACCA, noting that “Supreme Court precedent ... requires that we look to the definition of the offense established by the state legislature.” Moreover, this is not the type of situation where a court looks “beyond the statutory definition and fact of conviction in order to determine whether a prior offense qualifies as a predicate for ACCA purposes.” There is no exception to the “categorical approach for a case, such as this, in which the defendant pleaded guilty to an offense carrying maximum term of imprisonment [of ten years] under a plea bargain restricting the punishment to a term shorter than that specified in the statute.”


Wednesday, November 12, 2008

Driving While Incriminated

United States v. Lopez, No. 06-3730-cr (2d Cir. November 10, 2008) (Kearse, Leval, Cabranes, CJJ)

Police officers arrested Lopez for drunk driving. He has a gun in his pocket. Meanwhile, other officers, while looking for Lopez’ girlfriend’s identification, found cocaine in her purse.

Both were arrested and the car was brought to the 41st Precinct, where officers conducted an inventory search. This produced, in addition to some innocuous personal items, two glassines of cocaine in the center console, and a bag in the trunk that contained cocaine and cocaine trafficking equipment. Later, while arranging for a family member to pick up his personal belongings, an officer looked in the glove compartment of the car and found a second gun.

After a combined suppression hearing and bench trial, Lopez was convicted and received a seventy-month sentence.

On appeal, he challenged the inventory search on the grounds that it was not a true inventory search because it was not dictated by a standardized policy, and because the police did not create a complete inventory list of the objects found. The circuit affirmed.

Lopez first pointed to the lack of a standard NYPD policy as to whether the officers must produce an itemized list of every object found, or whether items of little value can be grouped under a general category. But the circuit did not view the relevant Supreme Court cases as requiring that “every detail of search procedure must be governed by a standardized policy” because a “standardized policy governing” things like the order in which the parts of a car are searched or the way the results are reported “would do nothing to safeguard the interests protected by the Fourth Amendment.”

Likewise, there was no Fourth Amendment violation even though the officers grouped items of little value under the general category “personal belongings” and did not itemize each one. “That an officer might use a catch-all to cover objects of little or no value in no way casts doubt on the officer’s claim that the purpose of the search was to make an inventory” and it would “serve no useful purpose to require separate itemization of each object found, regardless of its value, as a precondition to accepting a search as an inventory search.”

Finally it did not matter that the search was motivated by the officers’ desire to find more incriminating evidence. “Such motivation ... cannot reasonably disqualify an inventory search that is performed under standardized procedures for legitimate custodial purposes.”

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Sunday, November 09, 2008

Summary Summary

Things have been eerily quiet in the circuit - no published decision in a criminal case in nearly two weeks. But there have been a few summary orders of note. First, in United States v. Dean, No. 07-3015-cr (November 7, 2008), the court vacated an above-guideline sentence because, although the district court indicated that it was departing upward on criminal history grounds, it did not "follow the recommended procedure in § 4A1.3(a)(4) for calculating its upward departure, nor, ultimately, did the court settle on an amended Guideline range." And, in United States v. Feliz-Ramirez, the court considered a Fatico hearing at which the government failed to provide 3500 material that might have contradicted the star witness' testimony about the defendant's role in the offense. The court found no error in the district court's refusal to strike the testimony because the government's
"inadvertent failure to produce [the material] was harmless error." Sufficient additional established the defendant's managerial role.