The New York State Police Community Narcotics Enforcement Team (“CNET”) executed a search warrant on the residence of Richard Szuba. When the officers found cocaine, Szuba decided to snitch. Szuba told the officers that he received his drugs from Dean A. Steppello. He told the officers that when he wanted some cocaine he called Steppellos and said, “[a]re you good?” Then he would leave his garage door open and Steppello would deliver four ounces. At the request of the officers Szuba called Steppelo. The officers only heard Szuba’s side of the conversation. But he said, “you good, this afternoon, 20 minutes.” Officers surveilling Steppello’s residence saw him drive up to the house, enter it, leave again and drive to the area of Szuba’s residence. But since the garage was closed ¹ he parked in the driveway and called Szuba eleven times. ² Steppello was then arrested.

In a search incident to his arrest cocaine was found on him and a search of his residence pursuant to a search warrant found more cocaine.

He was charged in the United States District Court with possession with the intent to distribute cocaine and possession with the intent to distribute over 500 grams of cocaine. ³ He moved to suppress both the cocaine that was found on him and that which was found in his residence as well as certain statements that he made after he was arrested. He claimed that there was not probable cause to arrest him. If there was not probable cause to arrest him the cocaine found on him could not have been used to get the search warrant for his house, The District Court granted his motion and the government appealed.

The Second Circuit Court of Appeals granted the appeal. It held, contrary to the District Court’s decision that the mere lack of a history of reliability does not mean that the informant’s information must be discounted. As evidence of reliability it pointed out that the information was given in order to prevent him from being arrested, that it was given face to face to the officer, that Szuba was a participant in the crime, and that it was corroborated by physical evidence. As corroborating evidence it pointed to Szuba’s correct prediction of what would happen after the phone call, his correct description of Steppello’s vehicle and residence, as well as the telephone records verifying the calls from Steppello to Szuba.

While I do not accept the court’s finding that lack of a history of giving reliable information is unnecessary, I do believe that there is enough corroborating information for a finding of probable cause. I have represented many drug dealers who have attempted to pull one over on officers by giving incorrect information about the source of the drugs or about the offense. To find reliability without a history of cooperation is foolish without corroboration. But here there is plenty of corroboration.

Since there is probable cause for the arrest there is also probable cause for the search warrant for the residence and to use the statements made pursuant to the arrest.

Jason Cornell was charged with two rapes in New York. One occurred in Monroe County. The other in Ontario County. He was tried and convicted on both of them in Ontario County.

Both incidents occurred, with different women on narcotics buying trips from Watkins Glen in Schuyler County, New York, to Rochester in Monroe County, New York.

His trial counsel failed to object to venue in Ontario County for the incident that occurred in Monroe County. The question before the Second Circuit Court of Appeals was whether his counsel was incompetent and whether counsel’s incompetence prejudiced Cornell. Furthermore the court had to determine whether the state court decision was an unreasonable interpretation of established Supreme Court decisions under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

The Second Circuit found that counsel was incompetent. Counsel did not research New York’s venue rules. While there is a statute that allows an individual to be charged in any county through which he/she travels committing an offence it has been modified by a court ruling such that it only applies where the actual county where the crime occurs is unknown. Here it is undisputed that one incident occurred in Monroe County and the other in Ontario County. Furthermore there was no strategic reason for not raising the issue. Counsel requested a severance on other grounds which was denied. But he could have gotten a severance if he had raised the venue question.

But a finding of incompetence is insufficient. Under the Supreme Court decision in Strickland not only must there be incompetence but it must also prejudice the defendant. Here if his counsel had raised the issue it would have gone before the jury where there was overwhelming evidence that one offense happened in Monroe County.

Since the issue was raised on habeas corpus the AEDPA requires that the state court’s decision not only be wrong but it must also be unreasonable. The Second Circuit found that the state court’s denial of Cornell’s claim unreasonable misinterpreted Strickland in that it found that despite trial counsel’s prejudicial error he/she was not incompetent. Therefore the court reversed the conviction for the Monroe County case and ordered the case dismissed unless the Monroe County prosecutor decides to retry the matter.

Robert Simmons was convicted of being a felon in possession of a firearm and ammunition. He appealed on Fourth and Fifth Amendment grounds.,

His housemate called the police and complained that a couple of days beforehand Simmons threatened him with a gun. The police arrived at 1:00 a.m. His housemate was waiting for them. Simmons was in his bed.

Simmons got up and the police asked him questions in the hallway about whether he had a gun, where the gun was located and disputes he had with his housemate. Simmons was cooperative and told the police that he had a gun in his room.

The police then searched the room.

The questions raised on appeal was the admissibility of Simmons answers to the police questions since they were asked without the giving of Miranda warnings and the admissibility of the items found in the room including the gun.

The Second Circuit found the statements admissible under the Fifth Amendment exception to the MIranda rule for the answers to questions asked for public safety reasons. The public safety exception does not require that Miranda warnings “precede questions reasonably prompted by a concern for the public safety or for the safety of the arresting officers for a suspect’s answers to be admitted as evidence of his guilt.” The court found that the officers had sufficient concern about possible injury to themselves, Simmons ant the housemate to avoid giving the Miranda warnings, even though the scope of the questioning exceeding that necessary to find out whether there was a gun and where it was located. Considering the pressure of the moment the officers could be excused for the additional questioning.

But the Circuit Court reversed the District Court’s upholding the search of the room and remanded the case to the District Court. The government claimed that the search of the room was justified by the exigent circumstances exception to the warrant rule. The exception allows a warrantless search “when the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable.” But the court did not find the existence of exigent circumstances. Simmons was in the hallway. The apartment was full of police. One of the officers was blocking the door to the bedroom so he could not get the gun. There was no reasons that the search could not be delayed until a search warrant was obtained. A person’s house is particularly protected from warrantless seaches and therefore the court reversed the conviction pending further action of the trial court.

New York attorney, Robert Simels was sentenced to 14 years in prison for attempted obstruction of justice, bribery, and importation of electronic surveillance devices. ¹ He represented Shaheed Khan in a drug case. Khan was a drug lord in Guyana involoved in transporting drugs to the United States. During the pendency of the case Khan with the help of others bribed, threatened, and cajoled government witnesses into not testifying against Khan at trial.

Simels was convicted at trial and he appealed. The government’s case was based upon an informant, Selwyn Vaughn, and recorded calls between Simels and Khan. Khan operated the Phantom Squad in Guyana and Vaughn worked for him. Vaughn learned that Khan planned to escape from jail in the United States and he reported the information to the DEA. On directions from the Phantom Squad and the DEA. Vaugn met five times with Simels in his officel and Vaughn secretly recorded the conversations.

Placing an informant in defense meetings and recording meetings between the defendant and his attorney implicate important Sixth Amendment rights. The Sixth Amendment guarantees the right to counsel but that right is meaningless if counsel is not allowed to vigorously and without interference represent the rights of his/her client. It is one thing when an informant reports a crime to the government and then the government prosecutes an individual. It is another thing when the DEA sends an informant to talk to defense counsel and then the informant pretends to help the defendant find and interview witnesses while recording the conversations of his meetings with counsel and turning the recordings over to the government.

Likewise it is a violation of the Sixth Amendment and the attorney/client privilege when the government tapes jailhouse interviews between an attorney.

The government’s response to the Sixth Amendment issue is that it created two teams of lawyers who did not communicate with each other and were separated by a fire wall to prosecute Khan and to investigate Simels. ² The court rejected the Sixth Amendment claims on several bases. As to the placement of Vaughn into the defense team by the DEA, the court ruled that the placement of Vaughn on the defense team did not violate the Sixth Amendment because there is no right under the Sixth Amendment prior to indictment and the conversations between Vaughn and Simels occurred before Simels was indicted. It also ruled that the government had good cause to place Vaughn on the defense team to gain information about Simels and that Khan as part of his plea agreement agreed to waive any right to work product.

But I guess it could have been foreseen that there were problems with the representation. Simels got a 1.4 million dollar retain. During the case Simels apparently asked for more money to be used to bribe witness or to harass witnesses. Very few criminal cases outside of the OJ case or Enron deserve 1.4 million dollars. This was not a death penalty case and while it may have required travel to Guyana it was a relatively simple drug case and 1.4 million sounds like a lot of money. We do not know what promises Simels made to Khan to come up with such money.

In Michigan v. Summers the Supreme Court held that a search warrant for a residence allows officers to detain those in the residence during the search and that this right extended to a man leaving the residence as officers entered. In United States v. Bailey the Second Circuit Court of Appeals, last week, extended the permissible detention to an individual the officers saw drive away from the residence in order to allow them to follow and stop the individual. The officers then brought the individual back to the residence and detained him until the search was over.

With a search warrant for a basement apartment at 103 Lake Drive in Wyandanch, New York officers arrived at the residence. They saw two men, one of them Chunon Bailey leave the unit and drive away. They followed the vehicle, stopped it and brought the men back to the residence. Bailey was detained and he was arrested after guns and drugs were found in the residence.

In Summers the Supreme Court provided three reasons to justify the detention of someone leaving a residence: (1) “preventing flight in the event that incriminating evidence is found”; (2) “minimizing the risk of harm to the officers”; and (3) facilitating “the orderly completion of the search.” In a footnote the Second Circuit says that the first and second criteria apply. But it gives no facts to support this view. In another footnote it states that the police officers testified that the reason they didn’t immediately detain Bailey was that they were afraid that by doing so they would alert anyone else in the house to the police presence and a dangerous situation may result.

It is one thing to follow the Supreme Court’s criteria. It is another to make a blanket holding. The Second Circuit held, “that Summers authorizes law enforcement to detain the occupant of premises subject to a valid search warrant when that person is seen leaving those premises and the detention is effected as soon as reasonably practicable.”

This issue may come before the Supreme Court. The Circuit Courts are divided. The Fifth, Sixth, and Seventh Circuits, like the Second Circuit, upheld detentions of people after they left the scene. The Eighth and the Tenth Circuits ruled to the contrary. They held that once a person left the residence the Summers criteria are no longer applicable. If the person leaves the scene without knowing that a surveilance is in progress then the officers are not in danger. The Second Circuit’s response is that the officers are required to make a difficult decision: either to detain Bailey outside the residence and possibly notify those inside that the police are present or to to let Bailey, who they call a “person of interest to leave without being detained. While the search warrant indicates that a judge found probable cause to believe that someone in the residence may have committed a crime at the time of the detention there was no individualized suspicion, as required by Terry that Bailey committed a crime and he should not have been detained. When you detain someone a mile away from the house, return they to the house and require them to wait until the search is over it is no longer the minimal intrusion found by the Supreme Court in Summers.

Julian Tzolov and Eric Butler were charged in a three count indictment in the United States District Court for the Eastern District of New York with security fraud. Both in the trial court and on appeal they challenged venue in the Eastern District of New York. In Count I they were charged with Conspiracy to Commit Securities Fraud. In Count II they were charged with Securities Fraud in relation to the collapse of the auction rate securities (“ARS”) market in 2007. ARS were high grade securities backed by debt obligations, such as student loans, mortgages, municipal bonds, corporate debt and preferred stock issued by closed-end mutual funds. The government guaranteed 98 per cent of the value of student loan backed ARS. Investors had the choice of holding on to the securities until they matured in thirty years or auctioning them off as a short term investment–sometimes as short as seven days. Most chose the short term turn around.

The Sixth Amendment guarantees venue in the district in which the crime occurred. In some cases venue is defined by statute and in other cases venue is defined by the location of acts forming the crime. As to Count II, Security Fraud, 15 U.S.C. §§ 78j(b) and 78ff defines venue as “[a]ny criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred.” The only act alleged to have occurred in the Eastern District of New York was that the defendants flew in and out of Kennedy International Airport. The Second Circuit had no problem finding that merely flying out of Kennedy International Airport was not an act constituting the crime and reversed the securities fraud conviction. On the other hand conspiracy venue exists wherever an overt act in furtherance of the conspiracy occurred. An overt act is any act performed by a conspirator in furtherance of the conspiracy. Flying through Kennedy International was an act in furtherance of the conspiracy and the Second Circuit upheld the conspiracy convictions alleged in Counts I and III.

Ellis Wood was arrested on allegations that he hired Rasheen Harry (“Harry”) to kill Carlisle Hall (“Hall”). Wood believed that Hall raped Wood’s girlfriend, Nisha Bernard (“Bernard”). He was interrogated a number of times and kept in the police station over night.

After a final interrogation he was asked if they could videotape his statement. He responded: “I think I should get a lawyer.” New York Detective Charles Arnao (“Arnao”) gave him a phone and left the room. When the detective came back Wood appeared to be finishing a friendly conversation. Arnao had another officer bring video equipment and read Wood his Miranda rights before videotaping an interrogation.

At trial, on appeal, and in his writ of habeas corpus before the Second Circuit, Wood raised Miranda questions. Both the appellate courts and the United States District Court found the admission of the video to be a violation of Wood’s right to counsel, they found the admission to be harmless error. However, the Second Circuit found the video had substantial and injurious effect on the jury’s verdict and remanded the case for either retrial or dismissal.

After an arrestee unequivocally requests an attorney, a police officer must immediately terminate the interrogation and it cannot be restarted until either the arrestee has an attorney present or the arrestee initiates the conversation.The Second Circuit, like the District Court and the new York state appellate courts, found, “I think I should get a lawyer.” to be an unequivocal request. The statement does not show any doubt about the need for a lawyer nor does he question his decision. Thus the violation of Miranda is clear.

Perhaps a little less clear is whether the violation is harmless error. To determine whether the admission of the evidence was harmless the court looks at the importance of the evidence and the strength of the prosecution’s case. The prosecution had only two witnesses, Harry and Bernard. Harry had been convicted of the murder and was looking for a shortened sentence. He had a long rap sheet and he is subject to strenuous cross examination. By the time of trial Bernard had ended her tumultuous relationship with Wood. Not only was she looking for revenge but she was subject to deportation. As a result the government’s case was not very credible. The only thing that made it believable was the videotape which corroborated Harry’s testimony. The Second Circuit found that without the videotape Wood may have been found innocent.

Thus the videotape was not only important to the government’s case but it buffered an otherwise weak case. Furthermore, the government found the videotape to be important. The U. S. Attorney repeatedly brought the videotape up during closing and told the jury that they should pay attention to the videotape to support the conviction.

A jury in the Northern District of New York found Mark Desnoyers guilty on a number of counts including conspiracy to violate the Clean Air Act and to commit mail fraud in violation of 18 U.S.C. § 371. The judge overruled the jury and entered a judgment of acquittal on the conspiracy count finding the evidence both factually and legally insufficiency.

Factual insufficiency is fairly easy to understand. If no rational jury could find the defendant guilty based upon the evidence presented factual insufficiency exists. But in this case Desnoyers was charged with conspiracy to commit violations of both the Clean Air Act and mail fraud. With factual innocence, if there is more than one way a defendant can be found guilty, the conviction is upheld if there is any way the jury could have found the defendant guilty. Desnoyers claimed that a jury could not find him guilty of conspiracy to violate the Clean Air Act but he made no claim about mail fraud. Since he could have been convicted of conspiracy to commit mail fraud the appellate court reversed the trial judge’s reversal of the jury finding in regard to factual innocence.

Legal innocence is a more complicated issue. ” A legal challenge . . . questions whether a conviction rests on a mistake about the law, as opposed to a mistake concerning the weight or the factual import of the evidence.” Another difference between legal insufficiency and factual insufficiency is that with legal insufficiency if under any theory before the jury the conviction was legally insufficient the conviction must be reversed. Desnoyers was charged with violating the Clean Air Act in regard to eight buildings. He was an asbestos inspector. The Clean Air Act applies to commercial buildings and residential buildings with more than four units. “[A]dditionally, buildings must contain “friable” asbestos and at least 260 linear feet of asbestos on pipes or 160 square feet of asbestos on other facility components in order to be subject to the regulations.” After the trial the government admitted that seven of the eight buildings did not meet the requirements. In the eighth building no one measured the amount of asbestos since it was removed before the government agents arrived. However a number of people referred to the building as “a large job.” In the trade “a large job” means that it is covered by the Clean Air Act. Desnoyers claimed that there was legal insufficiency because their was insufficient evidence to prove a violation of the law in that the amount of asbestos had not been measured. However, the Second Circuit Court of Appeals ruled that Desnoyers failed to understand what was meant by legal insufficiency. Desnoyers explanation does not meet the test of whether a conviction rests on a mistake of law. The question should be whether what Desnoyers did was legal but he was convicted because of a mistake of law. For example if the judge misdirected the jury and he was convicted of an action that was actually legal.. If the judge misdirected the jury then the conviction would rest on a mistake of law and would be reversed for legal insufficiency. But in this case the judge correctly instructed the jury and the jury found Desnoyers to be in violation of the law.

The Second Circuit remanded the case with instructions to reinstate the jury verdict and to sentence Desnoyers, accordingly.

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history.

Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to New York and probably a few other states in between without notifying the Texas authorities of his addresses in each and without registering in each state. The base level for the offense is 19. The probation Department in its Presentence Report recommended that twelve points be given for Criminal Possession of Stolen Property (3 points), False Written Statement (1 point), Aggravated Unlicensed Operation (1 point), Burglary (2 points), Petit Larceny (1 point), Felony Sexual Assault (3 points), and Unauthorized Use of Motor Vehicle (1 point). In addition it recommended that he receive another two points since the offense occurred within two years of his being released from prison. This put him in criminal history category six with a range of 63 t0 78 months. The court imposed a 78 month sentence.

On appeal he challenged the possession of stolen property allegation which occurred when he was sixteen and which was adjudicated as a youthful offender and a six level enhancement (part of the base level points) for committing a rape while in failure to register status.

He objected to the rape because at the time of the sentencing charges were pending in Oklahoma and he had not been convicted. Two police officers testified at the sentencing. While the evidence was hearsay the appellate court upheld the District Court’s decision that their was sufficient evidence to convince the District Court of the rape. As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult. As a result the court was within its power to consider the prior as an adult prior and assess him criminal history points.

The Second Circuit Court of Appeals ruled that United States law does not prohibit travel between two countries “with intent to engage in illicit sexual conduct.” ¹

Israel Weingartin, a U. S. citizen, living in Belgium repeatedly sexually molested his daughter. When it became clear that he was no longer wanted in Belgium, he moved his family to Israel. In 1997 Weingartin and his daughter flew to New York where his father was dying. In 2008 they returned to the United States. During the trips he continued to molest his daughter. ²Whenever she complained he beat her.

Years later ³ when the abuse became known to New York authorities he was tried on a five count indictment. Counts One and Four alleged in relation to the travel from Israel to New York in 1997 that he violated 18 U.S.C. 2423(a) by transporting his daughter in foreign commerce for the purpose of engaging in illicit sexual conduct and 18 U.S.C. 2423(b) by traveling in foreign commerce to engage in illicit sexual conduct. Similarly he was charged in Counts Two and Five in relation to their 2007 travel from New York to Antwerp. Count Three, the subject of the decision involved a charge of violating Section 2423(b) for the travel from Belgium to Israel.

The general rule is that, unless the intent of Congress, is to contrary laws do not applies outside of United States territory. While the Court had no problem finding that Congress intended Section 2423 to apply outside of United States territory, at least as far as travel to or from the United States, it could find no proof of intent to apply the law for travel between two foreign nation without a nexus involving the United States. ⁴After all the statute applies to one who “travels in foreign commerce.” ⁵

Whether the “victory’ will mean anything to Weingartin is questionable. The case was returned to the District Court for resentencing. During the original sentencing he was sentenced to ten years on each of the first three counts to run consecutively and to ten years on each of the last two counts to run concurrently with each other and with the first three counts for a total of thirty years. The court using the same scheme could reduce the sentence to twenty years but it is not mandated to do so.