A nine month investigation led to the arrest of William Capers, a post office employee, for theft of money from Express Mail envelopes. Capers and a co-worker were arrested on the job, after postal inspectors set up a sting by watching them after the inspectors put cash and money orders inside Express Mail envelopes. Capers was interrogated in a supervisor’s office without Miranda warnings. Ninety minutes later he was again interrogated by the same inspector at another postal facility. This time he was Mirandized.

At trial Capers moved to exclude both statements and the Court granted the motion. The government appealed claiming that the second statement given after the Miranda warnings should have been admitted.

In Missouri v. Seibert. the defendant also gave an unMirarandized statement followed by a Mirandized statement. The Supreme Court plurality in Seibert held that it was unlikely that the defendant could believe that he could effectively waive his Miranda rights after he gave a full confession during his earlier statement. Justice Souter, speaking for the plurality named five criteria to be used to determine the voluntariness of an Mirandized statement given after an unMirandized statement:

(1) “the completeness and detail of the questions and answers in the first round of interrogation,” (2) “the overlapping content of the two statements,” (3) “the timing and setting of the first and second” interrogation, (4) “the continuity of police personnel,” and (5) “the degree to which the interrogator’s questions treated the second round as continuous with the first.

But since Souter did not speak for a majority a number of circuits have followed a concurring opinion by Justice Kennedy. Kennedy would first determine whether law enforcement officers intentionally used the two step routine to obtain a confession. If they did he would then determine whether curative steps had been taken to assure that the confession was voluntary. ¹ If there was no steps were taken to cure the unMirandized statement Justice Kennedy would exclude the Mirandized statement at trial.

Applying Kennedy’s concurrence the Second Circuit found that the postal inspectors intentionally violated Caper’s Miranda rights and took no step the cure the violation. Inspector Hoti, said that he did not Mirandize Caper’s first statement because he was in a rush to determine whether the codefendant was involved and to seize the money used in the sting. The Court found this to be an incredible reason and used it to find an intentional violation of Caper’s Miranda rights. Hoti was an experienced officer and he admitted he could have given Miranda warnings.

The second interrogation was a continuance of the first interrogation. The same three officers were present and it covered much of the same ground. Also Capers was not told that the first statement was probably inadmissible.

Thus the government did not meet its burden to show either the lack of deliberateness on Hoti’s part or that the violation of Caper’s Miranda rights was cured.

The Second Circuit Court of Appeals extended Batson claims to situations where an attorney purposely uses gender as a basis for peremptory challenges to jurors.

In Batson the Supreme Court ruled that it violates the Constitution for race to be a factor in the selection of jurors.

Dennis Paris was convicted of sex trafficking and prostitution related crimes in Connecticut. Prior to jury selection his lawyer announced that he planned to use his peremptory challenges against women since he felt they were less likely to give Paris a fair trial, considering the charges. At trial, after the defense attorney used his first four challenges against women the prosecutor made a Batson challenge. A Batson challenge starts with the opposing lawyer making a prima facie case that a lawyer is using race as a basis for peremptory challenges. Following the Batson challenge the side claiming the peremptory challenge is allowed to offer race-neutral reasons for the challenges. Third considering the totality of the circumstances the judge decides whether the challenged party has met its burden of proof to show that the challenges were not gender based.

The Second Circuit ruled that the use of gender in jury selection, as the Supreme Court ruled in Batson that the use of race in jury selection violates the Equal Protection Clause even if one gender is more likely to give a defendant a better trial than the other gender. According to the Court gender based jury selection hurts not only the parties but it also hurts the jurors and society at large.

A second Batson issue was raised during the trial. The prosecution’s first four peremptory challenges were against men. The defense made a Batson challenge. The Court found that the defense was unable to make a prima facie case. The majority of the members of the venire were men and after the defense excluded seven women the percentage of men on the panel was even greater. Therefore both the trial court and the appellate panel found that due to the high percentage of men left on the panel the defense was unable to make a prima facie case that the prosecution’s challenges were based on gender.

Personally four straight challenges of men seem like a sufficient basis for a prima facie case. It may not be a successful challenge but it should be sufficient to require the prosecution to put forth a gender neutral explanation. While the prosecutor did not announce that he/she was going to attempt to exclude men no one questioned the truth of the defense attorney’s allegation that women were better jurors for his defendant. Thus it is not unlikely that the prosecutor wanted all women on the jury,

In a multi-defendant prosecution for bank fraud the government informed the defendants that it planned to use statements made by co-conspirators, but not to call them as witnesses. The statements would come into evidence under an exception to the hearsay rule which allows the admission of statements made during the pendency and in furtherance of a conspiracy.

The defendants requested the complete notes taken during the proffers of those co-conspirators who’s statements the prosecution planned to use during trial. The trial court refused their request.

The Second Circuit upheld the ruling in United States v. Shyne et al. Under the Jencks Act which governs discovery of statements made by witnesses in a Federal criminal trial the government is required to provide statements made by a witness after the witness testifies but before cross examination. The Second Circuit held that since the Jencks Act does not mention non-testifying witnesses the proffers of the non-testifying co-conspirators is not discoverable.

But the Jencks Act is not the end of the question. Constitutional mandates trump the Jencks Act. The appellants raised Fifth and Sixth Amendment objections and of course the biggest exception to the Jencks Act is the Supreme Court Decision in Brady v. Maryland. In Brady the court ruled that due process requires the prosecution to provide the defense with mitigating evidence in the possession of the prosecution. The prosecution provided the defense with a letter listing the various mitigating factors for each of the co-conspirators. Assuming that the letter provides all the needed information, it does not help the defendants get the information into evidence.

The court did not discuss Rule 106 of the Rules of Evidence which states:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

How can a defendant move to admit the entire statement or know whether or not an entire statement has been entered if he/she is not given discovery of the entire proffer which is in the possession of the prosecutor?

Is the Sixth Amendment requirement of a fair trial met if the prosecutor has the entire proffer while the defense only has a summary of those parts the prosecutor wants to give him/her?

Glen Marcus was convicted of engaging in unlawful forced labor and sex trafficking between January 1999 and October 2001. The problem is the statute making forced labor and sex trafficking illegal was not enacted until 2000. Therefore much of the evidence at trial concerned acts that were legal at the time they were committed.

Of course someone cannot be convicted for committing a legal act. The Constitution and basic rules of fairness prohibit ex post facto laws which penalize events that happened prior to the passage of a statute making an event illegal. For some reason neither defense counsel nor the judge realized that some of the acts were performed prior to the effective date of the statute. Therefore no instruction was given to the jury informing them of the effective date of the statute.

Marcus’ appellate attorney caught the error and raised the issue before the Second Circuit Court of Appeals. The problem is that generally you cannot raise an issue that was not raised in the trial court. An exception occurs however for “plain error.” The issue raised before the Second Circuit and before the Supreme Court is how to define “plain error.”

The Second Circuit ruled “if it was possible for the jury—wh[ich] had not been given instructions regarding the date of enactment—to convict exclusively on [the basis of] pre-enactment conduct, then the conviction constitutes a violation” of the Ex Post Facto Clause and must be reversed.

The Supreme Court, while not ruling on the issue of whether “plain error” occurred, returned the case to the Second Circuit finding that its definition of “plain error” was wrong. Citing Puckett v. United States the Supreme Court ruled that a five part test exists to find “plain error:”

(1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.

The Second Circuit’s “possibility test” fails to meet the third and fourth element. A mere possibility neither affects the outcome of the trial or the fairness of the trial. therefore the Supreme Court returned the case to the Second Circuit for further consideration.

Justice Stevens dissented. He pointed out that Rule 52(b) of the Federal Rules of Criminal Procedure which mandates the use of the “plain error” test merely states:

A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.

Therefore Justice Stevens believes that the only issue should be whether the use of evidence of events that occurred before the law was enacted and the failure to inform the jury of such violated a substantial right of Glenn Markus and he would reverse the conviction. It makes sense–doesn’t it.

Damion Townsend was charged with conspiracy to distribute at least 50 grams of cocaine base and an unspecified amount of cocaine, possession with intent to distribute cocaine base, and possession of a firearm during and in furtherance of a drug transaction. He was convicted on the conspiracy charge only.

Townsend drove his close friend, Jones, who unbeknownst to him was a government informant, and Winfree around New York City to complete some errands and to purchase some cocaine from Scrap in a deal arranged by Jones. Then at Jones urging they went to Townsend’s house where Jones converted the cocaine into cocaine base.

He raised two issues on appeal: insufficiency of he evidence, and the admission of prior bad act testimony.

But winning a case on appeal is no easy task. For many issues the appellate court gives great deference to the trial court and the jury verdict. When it comes to sufficiency of the evidence the

Court ‘must review the evidence in the light most favorable
to the government, drawing all reasonable inferences in its favor.Reversal is warranted only if no rational factfinder could have found the crimes charged proved beyond a reasonable doubt. In other words, a court may grant a judgment of acquittal only if the evidence that the defendant committed the crime alleged was nonexistent or . . . meager.”

(citations omitted)

Since the test is if there is any evidence that Townsend conspired to sell base cocaine, the appellate court won’t overrule the trial court. Here Townsend claimed that the informant who he had known since childhood was not credible. Thus it is a question whether or not the jury believed the informant. Since the jury could have believed the informant the appellate court did not reverse the conviction. This is probably a good rule. Our country’s criminal laws are bases on the common law’s faith in the jury system. The jury composed of peers of the defendant is the trier of the facts. The members of the jury, not the appellate judges saw the witnesses and determined which witnesses to believe and which witnesses not to believe. And I for one prefer to put my faith in a jury than in a jaded judge.

The second issue is that the prosecutor introduced two prior incidents in which Townsend sold guns to Jones. This is called prior bad acts evidence (21 USC 402(b). Theoretically it cannot be used to show Townsend’s bad character. It can only be used to prove an issue that is in contention. But as the majority points out The Second Circuit has an “inclusionary approach.” The standard of review is an abuse of discretion. In other words before the appellate court will consider reversing a conviction for an error in admitting the evidence it must find that the trial court’s decision was arbitrary and irrational. Once it finds that the decision is arbitrary and irrational it applies the harmless error test.

“An erroneous ruling on the admissibility of evidence is harmless if the appellate court can conclude with fair assurance that the evidence did not substantially influence the jury.”

In other words it is nearly impossible.

But in this case it is a close call. It is arbitrary and irrational if the alleged prior incident is not relevant to some issue that is before the court.

“To determine whether a district court properly admitted
other act evidence, we consider whether “(1) the prior acts evidence was offered for a proper purpose; (2) the evidence was relevant to a disputed issue; (3) the probative value of the prior act evidence substantially outweighed the danger of its unfair prejudice; and (4) the court administered an appropriate limiting instruction.”

The majority opinion found it relevant on the issues of knowledge and intent both of which it found to be disputed. It also went to show the relationship between Townsend and the informant. But the minority opinion pointed out that the intent and the knowledge necessary for sell firearms is different from what is needed in a drug transaction. Furthermore, the relationship between Townsend and Jones was not in question. All agreed it was close. Therefore it could only be used as illegal character evidence and should have been excluded.

The dissent also claimed that the trial court should have excluded the evidence under the Federal Rules of Evidence section 403 which excludes evidence whose probative value is highly outweighed by the prejudicial value to the defendant. The trial court failed to take into consideration the fact that even if the evidence is relevant it can be excluded if it shows the propensity of the defendant to commit crimes. While neither opinion raises the issued under Section 403 the evidence can be excluded, where although the evidence is relevant it waste too much time to put it in. Here they had a least one witness testify about the guns and put both guns into evidence. For the minimal value if any of using the guns it took up a significant amount of time and should have been excluded on the section 402(b) and 403 issues.

Friday, we looked at the problems that immigrants have with the law. Today we look at another aspect of the problem.

Juan Teresco was convicted of attempted assault, an aggravated felony, much like the thee problem of Satbir Singh we discussed, Friday.

As a result of his 1997 conviction, Turesco, a citizen of El Salvador was deported. After being deported he came back to the country. In 2006 he was arrested in New York and he gave the name of Danny Ortega. After being told that it was a crime to lie to a Federal agent, he admitted that he was Juan Turesco. He also admitted that he was born in El Salvador and that he had been deported. At the time of his arrest the officers found an ID in the name of Danny Ortega on him. He was indicted for illegally reentering the country.

But Turesco’s troubles were just beginning. He told his lawyer, a Federal Public Defender that his name was really Danny Ortega and that he was a US citizen. He gave his lawyer a copy of a birth certificate for Danny Ortega. His lawyer then forwarded the birth certificate to the US attorney expecting a dismissal of the case.

But instead the US attorney got a superceding indictment charging Turesco with illegally entering the country, falsely claiming to be a United States citizen and an aggravated identity theft.

At trial, the government called the real Danny Ortega and Ortega’s mother to show that Turesco lied about his identification. They also called the INS agent who witnessed Turesco’s being placed on a plane and being deported in 1997.. Furthermore they called a fingerprint expert to testify that Turesco’s fingerprints were identical to the fingerprints of the person deported in 1997.

Turesco was convicted on all three counts. He was sentenced to 125 months on the illegal reentry and lying about his citizenship. He was give a 24 month consecutive sentence on the aggravated identity theft count,

The trial judge refused to give an instruction that the jury had to find that the government had to prove beyond a reasonable doubt that Turesco knew that the identification belonged to someone else. Therefore the appellate court reversed the conviction on count three which was an aggravated identity theft based on the recent Supreme Court decision in Flores-Figuroa v. Holder (See post of May 6, 2009) finding that the government had to prove beyond a reasonable doubt that the defendant knew that the false ID belonged to someone else.

After the trial judge gave most of his instructions he adjourned the court for the day. The next morning he told the lawyers that the marshals told him that Turesco refused to come to court. Turesco’s lawyer asked the court to wait until he could go to the detention center to get his client. The court refused. The judge instructed the jury to ignore Turesco’s absence from the court. While a co-counsel represented Turesco, his lawyer went and got him. Although Turesco had earlier begged to come to court, the marshal had refused to double cuff him which was necessary due to a shoulder injury. His attorney asked for a mistrial on Fifth and Sixth amendment grounds. The court denied the motion. During deliberation the jury asked to see Turesco and their request was granted.

The appellate court found that Turesco had a right to be present but that the right could be waived. It further found that the trial court had not held the necessary evidentiary hearing to determine if Turesco waived the right. But it also found that due to the overwhelming amount of evidence and due to Turesco’s presence when the jury wanted to see him the error was harmless and he would have been convicted anyway.

The lesson is don’t lie to the authorities. Don’t talk to the authorities but in any case don’t lie to them. The second lesson is don’t lie to your lawyer. It sure got Turesco is a lot more trouble when he said that Ortega’s birth certificate was his. And the third lesson is does anyone really believe Turesco deserves 125 months for his violation of the law?