To The Manner Porn

United States v. Jennings, No. 10-1642-cr (2d Cir. July 22, 2011) (Kearse, Miner, Chin, CJJ)

For defendant Russell Jennings, looking at child pornography was a hard habit to break. He served a twenty-one-month possession sentence in a 2006 case then, in 2009, while on supervised release, did it again. For the 2009 case, he received a long prison sentence, plus a concurrent supervised release violation sentence on the 2006 case, and a lifetime term of supervised release.

His appellate claims related largely to the way the evidence against him in the 2009 case was developed. He argued that his probation officer was improperly involved in the procurement of the search warrant and criminal complaint, and that incriminating statements he made to the officer were obtained in violation of the Fifth Amendment. The circuit affirmed.

For the first argument, Jennings asserted that his probation officer lacked the statutory and constitutional authority to (1) meet with the prosecutor to plain the 2009 criminal investigation (2) swear out, apply for and execute a search warrant and (3) become involved in the criminal investigation by interrogating Jennings at the government’s direction and by swearing out the criminal complaint.

The circuit disagreed. The duties of a probation officer are set out in 18 U.S.C. § 3603, and include protecting the public from persons whose release proves threatening to the community. Thus, officers should report a releasee’s wrongdoing, and the officer here did not act beyond the scope of this authority when he put the information he developed into affidavit form that better allowed other agencies to perform their duties. Nor did the officer usurp the Executive Branch’s prosecutorial function, in violation the doctrine of separation of powers. The United States Attorney’s Office drafted the search warrant and criminal complaint based on information that the officer provided, which was not a separation-of-powers violation.

Relatedly, Jennings also argued that the probation officer’s one-week delay in reporting its violation findings to the court violated a statutory requirement that he do so “immediately.” The circuit found no plain error, since the statutory requirement of immediacy, set out in 18 U.S.C. § 3603(8)(B), covers only those persons conditionally released after having been found not guilty by reason of insanity or otherwise suffering from a mental disease or defect, but not persons on supervised release in general.

The circuit likewise rejected Jennings’ Fifth Amendment claim, which derived from a condition of supervised release requiring him to answer his probation officer’s questions truthfully. Since he gave incriminating answers to the officer during an interview about his violation conduct, Jennings argued that those answers were compelled and should be protected by the Fifth Amendment.

But, since Jennings did not invoke the privilege against self-incrimination during the interview, the statements could be used. The Fifth Amendment privilege is not “self-executing,” and thus statements made by a person to his probation officer are not covered, unless the officer threatened that invocation of the privilege would subject the person to a penalty. But merely requiring a releasee to answer his probation officer’s questions truthfully does not render the answer to those questions “compelled,” even if the officer deliberately sought incriminating evidence.

The Chose Tattoo

United States v. Greer, No. 09-4362-cr (2d Cir. February 4, 2011) (Walker, Cabranes, CJJ, Koeltl, DJ)

Michael Greer was convicted of possessing a gun and its ammunition. The gun was recovered in a trash can along with the keys to a Hyundai Sonata, while the ammunition was found in the car itself. The Sonata had been rented by someone named Tangela Hudson, and a police officer testified that Greer had a tattoo on his left arm that said “Tangela.” On appeal, he argued that using the tattoo to connect him to the car violated his Fifth Amendment right against self-incrimination.

The circuit agreed that the tattoo was “testimonial.” The mere exhibition of a physical trait is not testimonial because it is not a communication that contains an assertion of fact or belief. But here, the tattoo was “used to a very different end” - not to identify Greer, but rather its content - the name “Tangela” - was used to prove that Greer had a relationship with a person of that name, and thus as circumstantial evidence that he had constructive possession of the ammunition in a car rented by Tangela Hudson. It was accordingly both testimonial and incriminating.

But there was nevertheless no Fifth Amendment violation because the tattoo was “not compelled by the government,” even if force or compulsion might have been used by the police to reveal it. The court likened the use of the tattoo to the IRS’ ability to compel production of voluntarily prepared papers. The “voluntary tattooing of an incriminating word to Greer’s arm was, like the voluntary preparation of [tax] documents, not the product of government compulsion.”

PC World

It's been more than a month since the court issued a signed opinion in a criminal case. But here is its latest Per Curiam.

In Re Grand Jury Subpoena Issued June 18, 2009, No. 09-3561-cv (2d Cir. February 1, 2010) (per curiam). In this case, the court rejected a challenge to a subpoena for corporate records where the corporate entities had a sole shareholder, officer and employee, Douglas Rennick. The companies argued that they could resist the subpoena on Fifth Amendment grounds since Rennick was the only person capable of producing the records and his act of production would be testimonial and potentially self-incriminating.

The court noted that the "collective entity rule" prevented the corporations from invoking a Fifth Amendment privilege and that the custodian of corporate records, acting as a representative of the corporation, cannot refuse to produce them on Fifth Amendment grounds. The circuit has long
held that there was no exception to this for corporations that were essentially "one-man" operations, but here the corporations pointed out a more recent Supreme Court case, Braswell, that held that the custodian of a one-man corporation's records could not resist a subpoena, but that if the custodian were to stand trial, the government could not introduce evidence that the custodian himself produced the records, since he had acted in his representative capacity, not personally. Braswell left open the question whether a custodian could resist a subpoena if he could establish that the jury would "inevitably conclude that he produced the records."

Despite this language, the circuit held to the rule that there "simply is no situation" in which a corporation can avail itself of the Fifth Amendment privilege, calling it "sensible" because it (1) prevents the erosion of the collective entity rule, (2) recognizes that the decision to incorporate is freely made and generates both benefits and burdens, and (3) avoids creating a category of organizations "effectively immune form regulation" by being outside of the government's subpoena power.

Embassy Suite

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

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

The Trial Opinion

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

1. The Capital Indictment

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

2. The Classified Information Procedures Act

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

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

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

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

3. Severance

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

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

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

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

5. Sentencing Issues

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

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

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

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

The Fifth Amendment Opinion

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

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

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

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

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

The Fourth Amendment Opinion

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

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

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

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

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

Underprivileged

In re Grand Jury Subpoena Dated July 6, 2005, No. 05-6891-cv (2d Cir. November 16, 2007, posted December 10, 2007) (Pooler, Parker, Wesley, CJJ)

In January of 2005, an Eastern District AUSA contacted counsel for the unnamed appellant, a former mortgage broker, and advised that appellant was the subject of a grand jury investigation. Appellant proffered on January 12, 2005, and, sometime after that date, surreptitiously recorded his telephone conversations with another broker, who was also a subject of the investigation. At later proffer, appellant told the government about the tapes, which he said he had made “on advice of counsel to protect himself.” When the government subpoenaed those recordings, appellant resisted, claiming that they were privileged. The district court ordered compliance, and the circuit affirmed.

Appellant’s primary claim was that the recordings were work product. The circuit concluded that the recordings were “fact” work product, that is, the result of a factual investigation, and not “opinion” work product, which is entitled to greater protection, because opinion materials might reveal the mental impressions of counsel. On this point, the court faulted appellant’s presentation to the district court; he relied solely on a conclusory affirmation from counsel that claimed that appellant was acting on his instructions, but did not give the court the tapes themselves for in camera review.

The court then grappled with the degree to which the work product doctrine applies to grand jury proceedings, which fall into a gap between Civil Procedure Rule 23(b)(3), which privileges materials prepared in anticipation of civil litigation, and Criminal Rule 16(b)(2), which privileges materials prepared by the defendant or counsel during the investigation or defense, but only in a “pre-trial proceeding in which there is a known defendant.” The court held that a “grand jury is entitled to fact work product where the government shows that the grand jury has a ‘substantial need’ for the materials and that it has ‘exhausted other means of obtaining’” them.

Here, both prongs were satisfied, although the court’s reasoning is a bit skimpy. For the first prong, the court simply held that a grand jury must have “access to the data it needs,” which “clearly includes” the recordings. Thus, there was “no doubt” that the need was “substantial.” Not the most satisfying analysis: the grand jury needs it, thus its need is “substantial.” With respect to the exhaustion prong, the court did better. It rejected appellant’s argument the government could have asked him about the contents of the recordings; this would not likely have been productive, since appellant had already claimed that they were privileged. Moreover, the government could not get what it needed from the other participant in the conversations, since his own account of the conversations would not replicate the “unique memorialization” contained in the tapes themselves.

In a separate summary order, the court rejected appellant’s alternative arguments. With respect to the Fifth Amendment, since the tapes were voluntarily prepared, there was no compulsion. And appellant could not claim an act of production privilege; the government knew enough about the existence of the tapes and their location - most likely they were either with appellant or his counsel - and requiring him to produce them would not require him to incriminate himself by admitting these facts. Nor would production “implicitly authenticate” the recordings. Finally, the recordings could not be deemed memorializations of appellant’s own communications with his counsel, since they did not involve the attorney himself.

Attorney's Quick Change Of Heart Saves The Day

United States v. Razmilovic, No. 06-4198-cr (2d Cir. August 27, 2007) (Miner, Kaztmann, CJJ, Murtha, DJ).

Here, the district court’s precipitate grant of a mistrial barred the reprosecution of the defendants under the Double Jeopardy Clause.

At the end of a six-week fraud trial, and only 3 days of deliberation, the jury sent out a note, its first of this kind, saying that it was “at a dead lock. We have exhausted all our options.” The only action Judge Wexler took was to ask whether any defendant sought a mistrial. When two defendants so moved, the judge granted it.

Covering well trod ground, the Circuit concluded that there was no “manifest necessity” for a mistrial at such an early point, and thus that the two defendants who objected to the mistrial could not be reprosecuted. The court considered the complexity of the trial, the length of the deliberations, the fact that the district court took no action at all with respect to the jurors, and the overall lack of evidence “that further deliberations would have risked producing a verdict that the jurors would not have otherwise supported.”

Of perhaps more interest in this appeal is the court’s discussion of one of the two defendants, Borghese, who initially joined in his co-defendants’ motion for a mistrial, then quickly changed his mind and announced that he opposed it. The Circuit held that Borghese did not consent to the mistrial, and thus could not be retried. The change of position was immediate - it occurred “within seconds” of the declaration of the mistrial. In addition, the objection was made before the jury was discharged, and thus the court could have changed its decision.