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NYT – Justices Weigh Freezing Assets Against Hiring Lawyers

By 
WASHINGTON — Kerri and Brian Kaley, a New York couple, were unable to hire a lawyer to defend themselves against serious criminal charges because the government had frozen their assets. That seemed to trouble several justices at a Supreme Court argument on Wednesday.
But it was not clear that a majority of the justices could agree on a way to address the couple’s situation without cutting back on earlier decisions or intruding into what a government lawyer insisted was the job of the grand jury.

The Kaleys were accused of participating in a scheme to obtain and sell prescription medical devices. They said they were likely to win at trial because no one had been harmed by their conduct, a point two justices seemed to find plausible.

The couple’s lawyer, Howard Srebnick, said the case posed a fundamental issue.

“I ask that this court not rule that the government can beggar a defendant into submission,” Mr. Srebnick said. “I ask this court not to rule that the government can impoverish someone without giving them a chance to be heard through their counsel of choice.”

But the relief the Kaleys actually sought was substantially narrower. They did not challenge the general framework established by a pair of 1989 Supreme Court decisions, which ruled that freezing assets before a criminal trial was permissible, even if it frustrated the defendant’s ability to hire a lawyer, so long as there was probable cause that a crime had been committed and the assets were linked to the offenses described in the indictment.

All the Kaleys were seeking was a hearing at which they could try to show that they were entitled to use their money to defend themselves because the charges against them were flawed.

Justice Antonin Scalia said he was uncomfortable with the modest step of allowing a hearing but might be open to a bolder one.

“To save your client, I would prefer a rule that says you cannot, even with a grand jury indictment, prevent the defendant from using funds that are in his possession to hire counsel,” he said. “Don’t need a hearing.”

Later in the argument, he proposed another solution. “I don’t like casting into doubt the judgment of the grand jury,” he said, “but why couldn’t we say that when you’re taking away funds that are needed for hiring a lawyer for your defense, you need something more than probable cause?” he asked. “Couldn’t we make that up?”

Michael R. Dreeben, a deputy United States solicitor general, responded that earlier decisions by the court had ruled out that approach.

Some justices tried to assess the practical consequences of allowing the requested hearings. Justice Elena Kagan said that defendants had never prevailed in any of 25 such hearings conducted in a part of the country that allowed them.

“So what are we going through all this rigamarole for,” she asked, “for the prospect of, you know, coming out the same way in the end?”

Chief Justice John G. Roberts Jr., who emerged as the Kaleys’ primary defender, said those statistics were only part of the picture.

“Who knows how many hundreds of times the government would have sought to seize the assets but didn’t because they knew they would have to justify it at a hearing?” he asked.

Mr. Dreeben said that grand jury findings of probable cause often serve as a basis for jailing a defendant until trial. It followed, he said, that such findings may also serve as the basis for freezing tainted money.

Chief Justice Roberts rejected the comparison. “It’s not that property is more valuable than liberty or anything like that,” he said. “It’s that the property can be used to hire a lawyer who can keep him out of jail for the next 30 years. So the parallels don’t strike me as useful.”

Mr. Dreeben said that requiring hearings could allow defendants to have an early look at the government’s evidence, put prosecution witnesses at risk and frustrate efforts to pay restitution to crime victims.

Chief Justice Roberts jumped on the last point. A hearing, he said, could also establish whether there had been any victims, a question in dispute in the case, Kaley v. United States, No. 12-464.

http://www.nytimes.com/2013/10/17/us/justices-weigh-freezing-assets-against-hiring-lawyers.html?_r=0

WSJ – Cellphone-Wiretap Ruling Is a Headache for Prosecutors

Opinion Says Authority to Listen In on Calls Doesn’t Cross Federal-Court-District Boundaries

JOE PALAZZOLO

A recent ruling by the Fifth U.S. Circuit Court of Appeals in New Orleans said that while cellphones may move easily between the country’s 94 federal districts, the authority to tap them doesn’t. The ruling affects the wiretaps typically used in criminal investigations, especially by the Drug Enforcement Administration, which is part of the Justice Department.

Former law-enforcement officials said the Aug. 26 opinion is among the most significant in recent memory governing the use of such wiretaps and could pose administrative headaches for law-enforcement agencies, unless Congress stepped in, which most regard as unlikely.

The appeals court said that for the federal government to intercept calls on a cellphone, either the phone itself or the hub where agents listen in on the calls must be in the district of the judge who authorized the wiretap. The Justice Department had previously interpreted the law to allow it to continue intercepting calls on a phone that wandered outside of the district in which the wiretap was authorized, former officials said. Now, federal investigators in Louisiana, Mississippi and Texas—the states covered by the Fifth Circuit—run the risk of having evidence suppressed if a cellphone they have tapped crosses federal boundaries.

“God help you if the [suspect] is driving down the highway, having a conversation on his cellphone and crosses into another district,” said Mark Eckenwiler, a former Justice Department official who worked on the Fifth Circuit case. While the ruling is only legally binding on those states, defense lawyers across the nation are also likely to invoke it as they seek to get wiretap evidence against their clients thrown out, he added.

The Justice Department has asked the court for a month to consider its next step. A DEA spokeswoman referred questions to the Justice Department, which declined to comment.

In the Fifth Circuit case, DEA agents and federal prosecutors in southern Mississippi who were investigating a drug-trafficking organization received authorization from a local judge to tap the cellphone of Richard North, a Houston native whom they suspected of supplying local dealers with cocaine. Mr. North was stopped in May 2009 by Texas state troopers acting on information from federal investigators who believed he was on his way to make a delivery in Mississippi.

He was released after a search turned up no drugs, and he headed home to Houston. Unaware that his phone was tapped, he called a friend and was overheard telling her that the troopers had failed to uncover the cocaine hidden in his car, according to court documents. A DEA agent listening in from Louisiana forwarded the information to officers in Texas, who stopped him a second time and found the stash.

Mr. North pleaded guilty to conspiracy to distribute five kilograms of more of cocaine, but he reserved the right to challenge the wiretap on appeal to the Fifth Circuit.

The appeals court decided that the Mississippi judge erred in issuing the warrant, because the phone was in Texas, investigators were in Mississippi and the listening post was in Louisiana, putting them all in separate districts. “In short, the district court…lacked the authority to permit interception of cellphone calls from Texas at a listening post in Louisiana,” the Fifth Circuit said, in an unsigned opinion.

Federal law exempts “mobile interception devices” from jurisdictional requirements, and at least one appeals court, the Seventh U.S. Circuit Court of Appeals in Chicago, has interpreted such devices to include cellphones.

Hanni Fakoury, a staff attorney at the Electronic Frontier Foundation, a civil-liberties group, said in an email that the Seventh Circuit ruling allowed the Justice Department to seek out “a more advantageous jurisdiction (and a more sympathetic judge) before applying for a wiretap.” The Fifth Circuit, however, said “mobile interception device” refers to a device used to capture communications and not a mobile phone, restoring what Mr. Fakoury described as an important safeguard against prosecutors seeking judges believed to provide preferential treatment to the government.

Norman J. Silverman, a lawyer for Mr. North, said the decision was the first major “reining in” of the Wiretap Act since 1974, when the Supreme Court ruled that the power to authorize wiretap applications inside the Justice Department was restricted to a few top officials.

In the near term, law-enforcement officials may need to set up temporary listening posts in districts where wiretap warrants are issued, said Mr. Eckenwiler, now senior counsel at Perkins Coie LLP. That solution is unlikely to sit well with the DEA, which uses these kinds of wiretaps more than any other agency and relies heavily on regional listening posts outfitted with sophisticated eavesdropping technology and staffed full-time with federal employees and contractors, who transcribe and translate what they hear. Of the 1,354 federal wiretaps authorized in 2012, 94% were used in narcotics investigations, according to the administrative office of the U.S. Courts.

“If you want to run 15 intercepts, the best place to run them is in one place—not 15 places,” said David Wilson, a retired 32-year veteran of the DEA.

The Justice Department could funnel wiretap applications to the districts with regional listening posts, but that could create delays for cases in which taps need to “get up” quickly to determine deliveries and shipment of drugs, said Stephen J. T’Kach, a former Justice Department official who worked in the surveillance unit.

Write to Joe Palazzolo at joe.palazzolo@wsj.com

http://online.wsj.com/article/SB10001424127887323864604579067033554325594.html

From White Collar Professor Blog on Daubert Claim

11th Circuit Reverses Health Care Fraud Conviction

In an unpublished opinion by the 11th Circuit, the court  in United States v. Reddy reversed and remanded a conviction coming out of a 7 day trial that started with a 37 count Indictment and had convictions for all but five wire fraud counts.  This health care case included counts of mail fraud, wire fraud, health care fraud, and falsifying records in a federal investigation.  At the heart of the reversal is a Daubert claim. Looking at the proposed expert’s qualifications, reliability of the methodology, and relevance, the cout found that the error was not harmless in that what the expert “had to say about his peer review and accuracy of the work performed by” the accused “was highly probative and would have likely been helpful to the jury.”

The court did note that the Indictment should not have been dismissed premised upon another argument made by the defendant. The court said that Section 1347 is a federal offense and “the underlying conduct must have an interstate nexus or other ‘jurisdictional hook.'”  But the court noted that the “Indictment’s language generally tracks the statutory language” and therefore “is sufficient to withstand a motion to dismiss.”

The defense in this case was handled by the Altanta, Georgia law firm of Kish and Lietz.

(esp)

Another example of the use of Protective Sweep to do a Warrantless Search

4th Amendment  – S.D.Ala.: Defendant closed door on arresting officers, got dressed, and surrendered; protective sweep unjustified

USMS showed up at defendant’s house to arrest him. He came to the door in his underwear, and there was a locked security door between him and the officers. He said he’d unlock the door, and he closed the inside door. They heard sounds inside. The officers essentially panicked that he was arming himself, and they were preparing to pry the security door off when he opened it, unlocked it, and came out and surrendered. The protective sweep under Buie was unjustified because there was no reasonable belief anybody else was inside. Otherwise, Buie would justify an entry in every case. United States v. Simmons, 2013 U.S. Dist. LEXIS 106328 (S.D. Ala. July 30, 2013):

[More:]

First, Simmons’ “retreat” lasted only 45 seconds, which can hardly be characterized as a “long delay.” After he returned to the back door, unlocked the security door, stepped outside and was arrested, whatever suspicion may have been caused by his retreat was dispelled. The movement the deputies heard inside the house occurred in the 45-second interval after Simmons closed the door and before he came back and opened the security door. After Simmons came out, Tameka Jones also came outside, and there was no evidence that any movement was heard from inside after that point. This evidence—brief retreat, movement from inside, followed by the exit of two persons from the residence—does not justify the assumption that other people remained inside. See United States v. Archibald 589 F.3d 289, 300-01 (6th Cir. 2009) (officers could not know from hearing movement inside prior to arrest whether more than one person was inside).

To the extent that the government relies on the danger posed by the situation to justify the search, that reliance is misplaced. The charges against the Defendant cannot provide the basis for reasonable suspicion to conduct a protective sweep after the Defendant has been taken into custody and no longer poses a danger. See United States v. Colbert, 76 F.3d 773, 777 (6th Cir. 1996) (“[defendant’s] dangerousness is not germane to the inquiry into whether the police may conduct a protective sweep in response to a reasonable suspicion of a threat from some other person inside the home”). Likewise, generalizations about dangers posed by certain types of criminals are insufficient to support a protective sweep. United States v. Moran Vargas, 376 F.3d 112, 115-16 (2nd Cir. 2008) (finding that link between drug courier meetings and motel rooms and between drug traffickers and guns did not provide reasonable suspicion that a dangerous person was hiding in the motel room of suspected drug courier).

The government has placed particular emphasis on the danger this arrest situation posed to the officers. The risk of danger to law enforcement at the arrest scene does not provide reasonable suspicion that a person is lurking inside the residence. Otherwise, Buie would be rendered meaningless because every potentially dangerous arrest would justify a protective sweep. Furthermore, officers’ “perceived vulnerability” does not demonstrate a specific and reasonable belief that other persons are present and pose a danger. United States v. Archibald, 589 F.3d 289, 299-300 (6th Cir. 2009). This is especially true where the danger can be avoided or mitigated. Id. (if inability to see down hallway from inside front door posed danger, prudent course of action would have been to back away, not proceed through the door).

In this case, the deputies testified that they were vulnerable to attack after the arrest as they waited for a patrol car to transport the suspect. According to Buie, a protective sweep should last “no longer than it takes to complete the arrest and depart the premises.” Buie, 494 U.S. at 335. To reduce their vulnerability to attack from inside the house, the deputies could have used their considerable force (six to eight officers armed with side arms and long arms) to provide cover while they loaded Simmons into one of their cars and departed. The evidence established that it was their choice to wait on the premises for a patrol car when they easily could have transported the Defendant from the scene themselves.

http://fourthamendment.com/blog/index.php?blog=1&title=s_d_ala_defendant_closed_door_on_arresti&more=1&c=1&tb=1&pb=1

Cellphone privacy issue heats up

By Lyle Denniston

More than 80 percent of adult Americans have a cellphone, and they make heavy use of them: calling for more than 2.3 trillion minutes a year and sending nearly 2.2 trillion text messages annually.  And it is fair to assume that a good many of those users consider what they do with their devices to be private.  It is far from certain, though, that the Constitution protects cellphone privacy.  The courts are starting to give answers to that question.

Even as courts struggle with the issue of whether they have any role to play in reviewing the government’s sweeping global surveillance of all kinds of electronic communications, including cell phone calls and texting, other courts are deeply involved in examining the constitutionality of government monitoring of cell phone use as part of investigations of crime.

This week, in back-to-back decisions, two federal appeals courts explored the privacy issue, and came to quite different conclusions, though in different settings.   In both cases, the constitutional issue was the same: whether the Fourth Amendment requires the government to get a court-approved search warrant to monitor cell phone use.  One court said yes, the other no.

One of those rulings involved a routine illegal drug case originating in Boston, the other focused on three FBI investigations in Texas.  In the Boston case, officers learned where a suspect lived, and got other information about him, by examining the contents of a cell phone that the man had with him when he was arrested.   The focus of the Texas investigations remains under wraps but the case involves a request by federal agents to obtain tracking data from cell towers operated by telephone companies – in other words, electronic tracks of the places where a cell phone has been used.

In the Boston case, the officers did not have a search warrant; indeed, they believed that they did not need one.  They got access to the man’s cell phone at the police station, and they simply engaged it to get information, just as they might look into his pockets to make sure he had no weapons. They turned out to be wrong about their authority to do that.   The Circuit Court of Appeals for the First Circuit had ruled earlier, and essentially reaffirmed on Monday, that the officers’ operation of the cell phone to get calling data was a search, requiring a warrant under the Fourth Amendment.

A cellphone, according to the First Circuit’s view, is not just a telephone; some of those devices have huge electronic storage capacity, and they contain much that is highly personal in nature – photos, videos, messages of all kinds, contacts, Internet searches, purchases, financial and medical records.  To the millions of Americans who carry around such devices, with them virtually everywhere they go, they are a trove of private data, that court found.

In the Texas probes, the federal agents were relying upon a federal law, the Stored Communications Act of 1986, which allows access to cellphone data upon a government request based on less suspicion than would be required for a search warrant.  In a ruling on Tuesday, the U.S. Court of Appeals for the Fifth Circuit decided that no warrant was necessary.  It approved the applications for cellphone tracking data, finding that the location information belonged to the telephone company and was not private for the phone users.

Once an individual makes a call, leaving an electronic data point at the nearest cell tower, that location has been exposed to the telephone company, and the phone user cannot complain if the company later hands that information over to the government, the Fifth Circuit Court said.

Although the facts differ in significant ways, the issue for the courts in each instance was whether the users of the cellphones had a “reasonable expectation of privacy,” one that most people would respect.  Over the years, as technology has advanced, the Supreme Court has not moved in a straight line in defining when government use of a new device or method intrudes on privacy in violation of the Fourth Amendment.

Just recently, the Supreme Court ruled that it did not invade the privacy of a person arrested on suspicion of a serious crime for police to use the new technology of DNA testing to take a sample from the suspect to seek a possible link to a different crime.   But the year before, the court ruled that police ordinarily should get a warrant before they attach a GPS tracking device to monitor, for a period of time, the movements a suspect made in his car.

In earlier decisions, the court has allowed police to conduct aerial surveillance of someone’s outdoor yard, even though they could not go into the yard at ground level, but the court also barred police from using a heat-sensing device aimed at the exterior wall of a house to see if marijuana was being grown inside.   The court also has reached varying results on police authority to use drug-sniffing dogs.

So far, the court has had little opportunity to explore the Fourth Amendment implications of cellphones’ use.  In fact, it recently turned down two appeals seeking clarification of claims to cell phone privacy.

But the conflicts among lower courts on that very issue have been growing deeper, thus increasing the chances that the Justices will, perhaps soon, get drawn into a case that provides a clear-cut test.  The Boston case may be such a case, because the federal government had fought energetically against the need to obtain a search warrant to examine the contents of a cellphone obtained during an arrest procedure.

And, while the Texas investigations case is not subject to appeal to the Supreme Court, because it only involved an effort by the government to get a cellphone location data order from a court, and there was no formal party on the other side of the case, other federal appeals courts are considering the privacy issue surrounding such data in cases involving actual criminal convictions, and rulings in that setting might well wind up in the Supreme Court.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

http://blog.constitutioncenter.org/2013/08/cellphone-privacy-issue-heats-up/

Trial Insider – Police Dog’s Bad Record Upends Murder Conviction

by 

July 29, 2013

The state prosecution’s handling of this Los Angeles murder case just smells bad.  The 9th U.S. Circuit Court of Appeals overturned the murder conviction of Gilbert Aguilar Monday, because state prosecutors failed to disclose the police dog that identified Aguilar’s scent had a history of mistaken scent identifications.

The only question in Aguilar’s case was the identity of the shooter who killed John Guerrero in 2001 while his car was stopped at a stoplight.

Aguilar’s defense was that another young Hispanic man, Richard Osuna, shot Guerrero.

Prosecutors produced evidence that “Reilly” the police dog alerted to a scent allegedly showing Aguilar’s scent was present on the front passenger seat of a car carrying the shooter.

What the prosecution did not do was mention that Reilly had a history of making mistaken scent IDs, even though it had stipulated to Reilly’s mistakes in a different trial several months earlier.

In addition, the dog’s scent ID was the only evidence linking Aguilar to the car.  While evidence against Aguilar was weak, “substantial” evidence suggested Osuna as the potential killer, according to Judge William Fletcher.

Osuna’s brother was shot several days before Guerrero was shot.  Two witnesses testified that Osuna jumped into a white Volkswager Beetle to pursue Guerrero’s car. Another witness testified Osuna toler her he had shot a “fool.”  But he was never investigated as a suspect.  In fact, the prosecutor in this case “expressly told the police not to pursue an investigation of Osuna,” Fletcher wrote, because it would be a “wild goose chase.”

By contrast, there was no clear motive for Aguilar to shoot Guerrero, no physical evidence tied him to the crime and the faces of Aguilar and Osuna are very similar but Aguilar is older and significantly taller.

Fingerprints later recovered in the Volkswagon matched Osuna but not Aguilar, according to the opinion.

Eye witnesses identified Aguilar as the shooter, but several of those earlier gave police physical descriptions that matched Osuna, rather than Aguilar.  At trial, the witnesses changed their descriptions to match Aguilar.

He was convicted in 2006.

A California Court of Appeal upheld Aguilar’s conviction, rejecting the dog-scent evidence issue.  Aguilar then took his appeals to federal court.

Fletcher found the prosecution failure to tell Aguilar’s defense lawyers about Reilly’s scenting problems was what’s known as a Brady violation, a standard that requires the government to turn over, or disclose, evidence potentially helpful to the defense.

Whether or not the trial prosecutor knew about Reilly’s history, the dog’s handler did and had an obligation to disclose it, according to Fletcher.

Aguilar must be released or given a new trial.

He was joined by Judges Harry Pregerson and Mark Bennett, visiting from the Northern District of Iowa.

Case:  Aguilar v. Woodford, No. 09-55575

http://www.trialinsider.com/?p=3861

Lawyers look to Alabama Supreme Court on juvenile killer sentences after legislature fails to act

By Kent Faulk | kfaulk@al.com 
May 21, 2013 at 6:13 PM

BIRMINGHAM, Alabama – How Alabama judges will handle the sentencing of juveniles convicted of capital murder – for at least the immediate future — now appears to be in the hands of the Alabama Supreme Court after the Alabama Legislature failed to enact a bill addressing the issue.

A bill had been pending in the state legislature to address a U.S. Supreme Court ruling in Miller v. Alabama last June that bars automatic no-parole sentences for juvenile killers. The session ended Monday with no final action on the bill.

“We were very disappointed that the legislature didn’t act,” said Wendell Sheffield, the attorney for one of the teens awaiting trial on capital murder charges in the deaths of five people at a house in Ensley. “We have an act that’s unconstitutional. We have a client who is in jail on a no-bond.”

Sheffield is among several attorneys who have asked local circuit judges to toss out the capital murder indictments against their teen clients after the U.S. Supreme Court ruling.

Those teens include:

 Rashad Stoves (Sheffield’s client), one of three teens indicted on capital murder charges in the January 2012 shooting deaths of five men at a house in the Ensley Highlands neighborhood of Birmingham. Stoves was 17 at the time of the shooting.

– Larry Henderson was indicted on a capital murder charge in the June 6, 2010, shooting death of Alex Rogers, 69, after a dispute in Ensley. Henderson was 16 years old at the time of the shooting. Another man, Detrick McGee, also was charged in Rogers’ death but McGee was 18 at the time of that shooting.

– Andrew Amison, was 17 when Mobile police arrested him on allegations that he participated in the robbery and killing of Sam Richardson inside in Main Street Barbershop on Nov. 22, 2011. Last month Amison’s attorney asked Mobile County Circuit Judge Robert Smith to throw out the capital murder charge.

Judges denied the requests in the Stoves and Henderson cases. In March Sheffield and Donald Colee, who represents Henderson, argued their appeals to the Alabama Supreme Court.

The Alabama Supreme Court had not ruled in the appeal as of today in the Stoves and Henderson appeals. “I think everybody was thinking they (Supreme Court justices) were waiting on the legislature” to address the issue first, Sheffield said.

“We are definitely looking for some action on their (Alabama Supreme Court) part,” Sheffield said. “Everybody’s in limbo.”

The U.S. Supreme Court in 2005 had ruled that juveniles cannot face the death penalty. Since then when juveniles in Alabama have been convicted of capital murder, they have automatically been sentenced to life without the possibility of parole _ the only other option remaining under Alabama’s capital punishment law.

But in last year’s ruling the U.S. Supreme Court said that judges must have options to sentence juveniles to something other than life without the possibility of parole.

Many attorneys and judges believed the Alabama Legislature would enact a bill that would deal with the issue. The bill introduced in the 2013 state legislative session, which ended Monday, called for giving judges the option of sentencing a juvenile convicted of capital murder to life, with one shot at parole after 40 years.

State Sen. Cam Ward, R-Alabaster, who had sponsored the bill in the Alabama Senate, stated in an email this afternoon that the reason the bill didn’t pass was mainly because it got caught up “in the procedural log jam of the last day.”

“Also, you had some people who wanted to make it 70 years instead of 40 which in my opinion would have been unconstitutional,” Ward stated.

Sheffield said that if the Alabama Supreme Court were to grant their appeal in the quest to have the capital murder indictment tossed out, he believes the state prosecutors would move “very, very, quickly” to charge Stoves with murder.

If the Alabama Supreme Court were to rule against them, however, it would basically leave the question in place about what state judges can do in sentencing teens convicted of capital murder, Sheffield said. If that happened, they would continue the appeal, he said.

“We’re not going to let this drop,” Sheffield said.

If the bill had been approved, Sheffield said they would have challenged it anyway. One shot at parole after 40 years only gave “lip service, not substance” to the U.S.

“I think courts in this jurisdiction need direction from the Supreme Court of Alabama in how they need to proceed,” Sheffield said.

Tommy Nail, the presiding Jefferson County Circuit Court criminal judge, said today that the judges and lawyers are “left to our own devices” and will have wait until the Alabama Supreme Court renders a decision.