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.

The Fourth Circuit Court of Appeals held that despite the significant changes in Confrontation Clause interpretation over the past several years hearsay remains admissible at sentencing.

Solomon S. Powell was convicted of mail fraud. He collected money for sale of merchandise over the internet, but he rarely delivered the merchandise. Though eight victims testified at trial at sentencing the court relied upon the investigation of Postal Inspector Evelyn Cross who testified at the hearing that he harmed over fifty people and that there was a loss of more than $200,000. This would have led to a guideline sentence of between 120 and 150 months. In an abundance of caustion the Court found that there were over 10 victims and a loss of $199,000, sentencing him to 102 months. While her report was thorough only the eight victims testified and the rest was based on hearsay.

Powell pointed to a line of Supreme Court cases, beginning with the 2004 case Crawford v. Washington limiting testimonial hearsay to cases where the witness is unavailable and where the defendant has had a chance to cross examine the witness. But the court held that once a person is convicted the right of confrontation no longer exists. The Supreme Court limited Crawford and its prodigy to evidence at trial and absent a change by the Supreme Court there was suffficient precedents to reject the confrontation clause at sentencing. It found that a wide variety of evidence is admissible at sentencing and that traditionally, as long as the evidence is reliable, hearsay has been admissible. As a result it upheld the sentence.

The District Court for the State of Arizona declared a judicial emergency and suspended statutory deadlines for starting criminal trials due to the heavy caseload and the lack of a full roster of judges. The court which had some of the most crowded dockets in the nation just suffered the death of its Chief Judge John Roll who was killed in the massacre in which Congressmember Gabrielle Giffords was shot in Tucson. The Court now has three vacancies. The recent crackdown on immigration cases has placed a significant strain on the court and increased its caseload.

The Speedy Trial Act, 18 USC 1861 sets various deadlines for criminal cases, Among others it requires that defendants be indicted within 30 days of being arrested and, with certain exceptions that trials be commence within 70 days. But Section 3174, allows the Judicial Counsel of the Circuit, in this case the Ninth Circuit, upon the request of the chief judge of the District Court to suspend the deadlines.

The suspension lasts through February 19, 2012.

The Constitutional requirement of a speedy trial is not necessarily affected by the suspension. The courts have never set a specific time in which defendants must be brought to trial. Rather they have considered each case on a individual basis. In Barker v. Wingo the Supreme Court set four factors that must be considered in determining whether there is a violation of the Sixth Amendment’s speedy trial provision. First the length of the delay. Second the government’s reason for the delay. Third, whether the defendant asserted his right to a speedy trial and finally the degree of prejudice to the defendant.

While a violation of the Speedy Trial Act does not necessarily mean there is a violation of the Sixth Amendment causing a dismissal of the case it certainly affects the first element which is the length of the delay. We can certainly expect numerous motions to dismiss in the District Court for the District of Arizona as a result of the suspension of the Speedy Trial Act deadlines. But we should expect that under the second factor the court will be unlikely to grant many motions in light of a strong governmental reason, the lack of judges to hear the cases. The defendants will have to show a strong prejudice such as the death of a percipient witness who was likely to exonerate them in order to win the motions.

The Fourth Circuit Court of Appeals reversed a conviction where the attorney, over the objection of her client agreed to an evidentiary stipulation.

Randolph Williams was charged with conspiracy to possess for distribution heroin. Heroin was sent from Panama addressed to the girl friend of Victor Johnson, a friend of Williams. Prior to the delivery a UPS employee became suspicious and turned the package over to law enforcement officers. A police officer dressed as a UPS employee delivered the package to the house shared by Johnson and his girlfriend. Johnson received the package. By prior arrangement he was to call Williams who was going to pick it up. Instead of course he was arrested at the time of delivery. He plead guilty and agreed to testify against Williams.

Prior to trial the U. S. attorney offered the following stipulation:

United States of America vs. Randolph Williams also known as Red, Criminal No 7:08-25, the Government and counsel for the defendant, Randolph Williams, that counsel being Lora Collins stipulate the following: that on October the 11th of the 2007 [sic] lieutenant [sic]Beth Rampey Vaughn a certified forensic chemist with the Spartanburg County Sheriff’s Office forensic laboratory located in Spartanburg, South Carolina, examined and analyzed the contents of the package addressed to Sabrina Hutchinson, 142 Westover Drive No. 5, Spartanburg, South Carolina, 29306 and seized by Eric Murphy of Customs and Border protection Louisville Kentucky, that the package was seized on October the 3rd of 2007 from the UPS sorting facility and submitted to forensic chemist Rampey Vaughn under ICE file No. GV13HE08GV0C1[ ], that forensic chemist Rampey Vaughn who has been qualified as an expert in the analysis of controlled substances in both state and federal courts within the District of South Carolina determined that this – that the package contained a total weight of 98.61–grams of heroin, a schedule I controlled substance. We do so stipulate, signed by Lora Collins, attorney for the defendant, and Assistant United States Attorney Regan A. Pendleton in Greenville, South Carolina

Williams refused to sign the stipulation and his counsel, with permission from the court signed it in his place. By signing the stipulation the attorney violated William’s Sixth Amendment right of confrontation. A defendant in a criminal case has the right to confront witnesses against him/her. A stipulation is an agreement between the parties that the jury may consider the agreement in lieu of hearing witnesses. While a defendant can waive the right of confrontation and agree to a stipulation, counsel for the defendant cannot waive the right over the objection of her client. While the Fourth Circuit had not ruled on the issue before it agreed with the unanimous opinion of other circuits and reversed the conviction.

The elements of the offense are:

(1) an agreement existed between two or more persons to possess with the intent to distribute heroin; (2) defendant knew of the conspiracy; and (3) “defendant knowingly and voluntarily became a part of the conspiracy.

The Court found that the error was not harmless since the stipulation practically made the first element of the offense and it reversed its conviction.

My question is why would the attorney, over the objection of her client, enter into the stipulation? An attorney is supposed to zealously represent her client. When representing a client you are, using your special skills to carry out the wishes of your client. Sometimes you may disagree with your client and you need to explain to your client why what he/she wants is not in his/her best interest but there is no evidence that requiring the prosecutor to prove her case, without the use of the stipulation, was in the defendant’s best interest. Perhaps the prosecutor wanted to use the stipulation because she was missing a witness. The case may have been dismissed without the stipulation. In which case the attorney’s action severely hurt the client. I cannot conceive of any reason in this case that the defense attorney would want to enter into a stipulation over the will of her client, unless she wanted to get the trial over fast so she could go on a vacation.

Winston McGhee (aka Pooh) sold cocaine base to a confidential informant in a controlled buy, witnessed by the State Police, who then followed him back to his hotel. ¹A hotel employee told the officers that McGhee, who’s name they did not know was staying in room six. The officers got a search warrant.

That evening they stopped McGhee as he entered the hotel and searched the room. They found a knife on McGhee. They strip searched him, finding marijuana in his shoe and a baggie in his buttocks. The baggie contained 31 smaller baggies of cocaine base.

After McGhee was indicted he moved to suppress the cocaine claiming that the strip search was illegal. Precedent in the First Circuit Court of Appeals holds that normally a search pursuant to an arrest calls for a search of the person. But with increasing justification searches involving more intrusive measures (strip search, visual inspection of genitals and buttocks, and manual intrusions into such orifices) may be appropriate.

The District Court held that a strip search was appropriate. As the appellate court pointed out McGhee had hidden marijuana in his shoes and put up a struggle during the strip search indicating that he would try to hide drugs. ²McGhee challenged the characterization of the search as a strip search, claiming that the officers pulled his legs apart to inspect his buttocks but the Court ruled that such actions were necessary, in light of his struggling, to complete the strip search.

McGhee was not charged with the sale to the informant but it was put into evidence to show that he intended to sell part or all of the cocaine base found in his buttocks. He objected to the use of the chemist who tested the cocaine base found in his buttocks testimony in so far as she testified about the work of a different chemist who tested and weighed the cocaine sold to the informant. He claimed, citing the Supreme Court cases: Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) that the use of the hearsay violated his right of confrontation. However the Court ruled that even if it violated his right of confrontation the violation was harmless. There was plenty of other evidence (the quantity, the packing, multiple cell phones significant sums of money even though McGhee was unemployed, etc.) indicating that McGhee meant to sell at least some of the cocaine base. The weight of the sample was irrelevant, according to the Court.

As a result the Court upheld the conviction.

The Sixth Circuit Court of Appeals reversed denial of a writ of habeas corpus due to a failure to comply with the Sixth Amendment’s right to counsel.

The Sixth Amendment guarantees the right of a defendant to have counsel present at all critical stages of the prosecution after the initiation of the adversarial process. Thus once charges are filed the prosecution cannot deny the defendant the right to have counsel present at significant events in the case. One of those significant event, of course, is the giving of a statement by the defendant. ¹

David Ayers was a security guard for the Cuyahoga Metropolitan Housing Authority. As part of his compensation and to insure the safety of the residents he was given a low cost apartment in the building. Accompanied by one of the residents he went to the apartment of Dorothy Brown to pick her up after she fell down. The next day her body was found with numerous injuries. Ayers was eventually arrested and indicted.

While he was in custody he was befriended by Donald Hutchinson, a fellow inmate assigned to the same jail pod as Ayers. Hutchinson contacted the inspectors assigned to Ayers’ case and told them that Ayers had admitted to murdering Brown. After the officers apparently hinted ² to Hutchinson that they needed to know what weapon Ayers used and how much money he stole from Brown, Hutchinson returned to the cell and obtained the information from Ayers. He then contacted the officers again and gave them the information.

In the trial court Ayers moved to suppress the statements given to the officers at their second meeting with Hutchinson. The trial court denied the motion but the appellate courts granted the writ of habeas corpus finding that the police use of Hutchinson to “intentionally create a situation likely to induce Ayers to make incriminating statements without the assistance of counsel” violated the Sixth Amendment.

Here is the problem with jail house snitches. Hutchinson, who was in custody for crimes of moral turpitude involving financial misconduct, gave three different stories on different occasions regarding what he had been told by Ayers. Therefore he is not very trustworthy and the use of his testimony at trial is questionable. Furthermore since the police could not questions Ayers without his attorney present without violating the Sixth Amendment, they should not be allowed to manipulate the situation by either hinting to Hutchinson that he find out the nature of the weapon and the money stolen or by asking him to find out the information.

Federal Judge Lewis A. Kaplan barred the testimony of Hussein Abebe in the trial of Ahmed Khalfan Ghailani for the 1998, Al Qaeda sponsored bombing of the U. S. embassies in Dar es Salaam, Tanzania and Nairobi, Kenya.

The CIA discovered Abebe through a statement given by Ghailani while being kept in a “black site” maintained by the CIA to interrogate detainees. Ghailani’s lawyers say that he was tortured into giving up Abebe’s name. While Judge Kaplan has not made a finding on whether or not torture was involved he said it was clear that Ghailani was coerced into giving up the name. United States courts have long held that evidence received by torture or coercion is inadmissible as evidence. Not only is evidence received as coerced testimony inadmissible but the fruits of such evidence is inadmissible. In other words prosecutors cannot use evidence directly related to coercion or torture. Evidence indirectly received may be admissible. For example if they received evidence of Adebe involvement from two sources, one coerced and the other not it might be admissible. But the only source in this case is the coerced testimony of Ghailani. Thus since Ghailani gave up the name of Abebe as a result of coercion, Abebe’s testimony is a fruit of the illegal interrogation and is inadmissible.

Not only is coerced testimony unreliable but the government should not be rewarded for the use of coercion or torture.

Abebe allegedly gave the dynamite to Ghailani, used in the bombing and his testimony is considered crucial to the government’s case.There is some fear that if the government is unable to convict Ghailani they will no longer use civilian trials to try those like Ghailani who are charged with terrorist crimes and housed at Guantanamo.

But Judge Kaplan said:

“But the Constitution is the rock upon which our nation rests. . . .We must follow it not only when it is convenient, but when fear and danger beckon in a different direction. To do less would diminish us and undermine the foundation upon which we stand.”

However, he also said that even if Ghailani is found innocent he may be detained for the rest of his life as an enemy combatant. But the New York Times cites Ben Wizner, a senior lawyer with the American Civil Liberties Union, as saying that the conventional wisdom about the Ghailani case was that the justice system works if he is convicted and fails if he is acquitted.

“But that’s not how we measure the effectiveness of a criminal justice system,” Mr. Wizner said. “The question is whether the government can present its case and whether the defendant can get a fair trial.”

In fact the government may get a better win if Ghailani is found not guilty and released. This would show the world, and particularly the Muslim world, that this is a country of laws and that we only punish the guilty.

A Maryland judge ruled that defendants have a right to be represented by counsel at the initial setting of bail.

In Rothgery v. Gillespie County, Texas, the Supreme Court held, “a criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction,marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”

In Maryland bail is decided by a commissioner. The hearings are not held in a courtroom. Nor are they transcribed or recorded making appeals difficult if not impossible. But as the trial judge stated:

“Ultimately, the initial bail hearing determines whether a defendant will be allowed to retain, or forced to surrender, his liberty during the pendency of his criminal case,”

As a result the court found sufficient similarities to Rothgery where not only was counsel not appointed prior to a bail hearing but no counsel was appointed until after the indictment. In both cases, however, the defendants were denied their liberty without counsel being appointed in violation of the Sixth Amendment.

The Tenth Circuit Court of Appeals reversed a District Court decision that the failure of counsel to either attend a presentence meeting between his client or to prepare the defendant for the meeting was not incompetence of counsel.

Patrick E. Washington was found guilty by a jury of crack cocaine related offenses. His counsel did not attend the presentence meeting between Washington and the probation officer. Nor did he prepare Washington for the meeting by telling him that his sentence could be increased for relevant conduct. Relevant conduct involves, in this case, crack cocaine related activity other than the specific incidents for which he stood trial. During the meeting with the probation officer Washington told the officer about prior crack cocaine sales. As a result he pushed the quantity up beyond 4.5 kilograms, the maximum for a two level reduction under the 2007 Crack Cocaine Amendments.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [sic] defense.” The right to counsel is available at all critical stages of the prosecution. The sentencing process is a critical stage and the failure of counsel to be aware of the importance of the nature of relevant conduct and the importance of the probation interview falls below the expected conduct of attorneys in Federal trials. As a result , Washington’s counsel was guilty of incompetence of counsel and Washington was hurt as a result thereof because he was not available for the level discount under the Crack Cocaine Amendments.

Kerry L. Smith was indicted on marijuana related charges in April 2007. He retained John Rogers to represent him. Both sides dealt with voluminous amounts of discovery. Various motions were filed and superseding indictments were issued. Approximately a year into the case Rogers requested a competency evaluation for Smith. It was completed in June of 2008. No trial date was set. On August 25, 2008 Smith filed a motion asking to substitute in Beau Brindley as his attorney. On September 8 the Court set a trial date of November 4 and denied the motion to substitute counsel because Brindley was scheduled to be in another trial on November 4.

When the court rejected Brindley, Smith requested that Rogers continue to represent him. With the court’s prodding, Rogers refused. The Court appointed Ronald Jenkins to represent Smith.

Three weeks later Smith plead guilty with a written plea agreement that among other points surrendered the right to appeal unless the sentence exceeded the guidelines.

Federal Rules of Criminal Procedure Section 11(b)(1)(N) requires that the district court “must inform the defendant of, and determine that the defendant understands . . . the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Though the appellate waiver was in the agreement the Court made no effort to independently inform Smith of the parameters of the waiver. The court mentioned it only in passing and then only to ask Jenkins whether there was a waiver.

The right to counsel of one’s choice is so fundamental that one should not be able to waive an appeal of its denial. The denial of the right to counsel of one’s choice brings into question the value of the waiver. Different counsel will handle different issues in different ways. If Smith had been granted the substitution he may not have plead guilty and if he had plead guilty he may not have agreed to waive the right to appeal. As the appellate court stated, “[i]f a defendant is erroneously denied the counsel of his choice, it is a structural error in the trial that brings into question the voluntary and intelligent character of the guilty plea itself. ”

The Seventh Circuit Court of Appeals found a clear violation of the Sixth Amendment right to counsel. Since no trial date had been set at the time the motion to substitute counsel was made, the interference with the court’s calendar was minimal and the court’s refusal to set a trial date when Brindley was available was uncalled for and a violation of Smith’s Sixth Amendment right to counsel.