Atticus Summer 2014

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Summer 2014 | Volume 26 | Number 2

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Message from the President by Aaron Mysliwiec

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Criminal Liability Under EEA by Justin M. Sher and Mark Cuccaro

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Freedom to Annoy by Ron L. Kuby

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Willful Blindness by John Cline

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Thirteen Not Always Unlucky by Patrick Michael Megaro

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Privacy on the Line by Justine Harris and Matthew Keller

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NACDL Annual Meeting

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Cutting Edge CLE Offerings and Fall Schedule

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Where to Self-Report a White Collar Offense By Marjorie J. Peerce and Nathaniel Z. Marmur

New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers

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atticus@nysacdl.org www.nysacdl.org

90 State Street, Suite 700 Albany, New York 12207

Phone: 518-443-2000 Fax: 888-239-4665


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Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Publication of the New York State Association of Criminal Defense Lawyers President Aaron Mysliwiec, Manhattan President-elect Wayne C. Bodden, Brooklyn

Message from the President

First Vice President Andrew Kossover, New Paltz Vice Presidents Danielle Eaddy. Brooklyn Michael Shapiro, Manhattan Andre Allen Vitale, Rochester John S. Wallenstein, Garden City Robert G. Wells, Syracuse Secretary Arnold J. Levine, Manhattan Treasurer Lori Cohen, Manhattan Executive Director Jennifer Ciulla Van Ort Board of Directors Michael T. Baker, Binghamton Bruce A. Barket, Garden City Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Marc Fernich, Manhattan Jonathan S. Fishbein, Delmar Alice Fontier, Manhattan David I. Goldstein, Chestnut Ridge James W. Grable, Jr., Buffalo Jessica Horani, Manhattan Timothy Hoover, Buffalo Greg D. Lubow, Tannersville Brian Melber, Buffalo Marshall A. Mintz, Manhattan Kenneth Moynihan, Syracuse Timothy P. Murphy, Buffalo Lisa Peebles, Syracuse Donald G. Rehkopf, Jr., Rochester Joshua Saunders, Brooklyn Susan Walsh, Manhattan Past Presidents Lawrence S. Goldman Paul J. Cambria, Jr. Jack T. Litman Mark J. Mahoney David L. Lewis William I. Aronwald Thomas F. Liotti Ira D. London Jeanne E. Mettler Murray Richman Gerard M. Damiani Marvin E. Schechter Kathryn M. Kase Russell M. Gioiella James P. Harrington Richard J. Barbuto Martin B. Adelman Joshua L. Dratel Ray Kelly Daniel N. Arshack Lisa Schreibersdorf Craig Schlanger George R. Goltzer Kevin D. O’Connell Richard D. Willstatter Benjamin Ostrer

By Aaron J. Mysliwiec

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elcome to NYSACDL’s first ever “White Collar Crime” issue. We’re thrilled to present the work of several distinguished authors on the topics of willful blindness (“conscious avoidance”), strategic considerations involved in making self-disclosures, criminal liability under the Economic Espionage Act, and constitutional and evidentiary challenges to cell site location data. Together, the articles cover a range of timely subjects. We are hopeful that both new and seasoned practitioners will find this issue useful. It is with some reluctance, however, that I even use the term “white collar crime” to describe this issue. I fear it lends credence to the Balkanization of the criminal defense bar into groups such as state v. federal, trial v. appellate, upstate v. downstate, indigent v. retained, and “blue collar” v. “white collar” criminal defense lawyers. Sometimes we ourselves adopt these terms for marketing purposes. At other times, critics use the terms to denigrate different groups within the defense bar and within our membership, and thereby attempt to divide the interests among lawyers. Hopefully, we have learned from recent events that there are many issues where we must speak with a unified voice and proudly embrace the catch-all title of “criminal defense lawyer”. As all of us have come to expect, there will always be another round of attacks on our ability to defend clients and to go toe-to-toe with the government. Among those we have seen recently are the government’s policy of reading emails exchanged between clients in BOP custody and their lawyers, numerous high profile Brady violations, reams of unfair prosecutorial discovery practices, and the District Attorneys Association of New York’s (DAASNY) initiative to “reform” state “white collar crime” laws. The last one is, among other things, an attempt to enhance sentences (further shifting power from the judiciary to prosecutors through charging decisions) and to make the state

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criminal system more like the federal one. Those DAASNY goals are in direct conflict with the justifiable backlash against the federal criminal justice system during the last decade and with the positive reform that has occurred at both the state and federal level. NYSACDL is the only statewide organization that has members from all of the various criminal defense lawyer constituencies that I described above. We have several hundred members from around the state. We need several thousand to become an even stronger voice for making the state and federal criminal justice systems fairer. “White collar” cases and decisions frequently have significant impact along the entire continuum of criminal law cases, and vice versa. Arbitrarily separating cases by category merely impedes the defense bar’s ability to marshal its forces effectively, and achieve success through greater solidarity. With this issue, we hope to provide a great resource to existing members and to reach out to those New York State criminal defense lawyers who have not yet joined our ranks. There is much work to be done. A

Editors

Benjamin Ostrer John S. Wallenstein Jessica Horani Richard J. Barbuto, Book Review Editor

A publication of the New York State Association of Criminal Defense Lawyers ©2013 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

In Memoriam Edward D. Wilford, Esq. With profound sadness, NYSACDL notes the sudden and unexpected passing of member Edward D. Wilford, on August 9. Ed was an extraordinarily talented lawyer, and a beloved mentor to many. In his all-too-short time with us, he handled many high profile cases, with the skill and fervor that won him the respect of all he encountered, bench and bar alike. Young lawyers looked to Ed for advice and guidance, and he always made the time to provide it. He was a consummate gentleman, a fabulous lawyer, and a good friend. On the tough days, Ed Wilford was one of the giants of the defense bar we could look to for inspiration and rejuvenation. On the good days, seeing Ed made them better. We will miss him terribly, but continue to be inspired by his work and his life. Rest in peace, brother.

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Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


From the Editors’ Desk

W We welcome information from all members concerning verdicts and results. Email submissions to atticus@nysacdl.com or to any of the editors.

Read a good book lately? Write a review of it, and submit to our Book Review Editor, Dick Barbuto. Contact Dick at rbarbuto1@hotmail.com

e are very proud of this issue, our first to feature articles related to “White Collar” crime. The editors extend our heartfelt thanks to our authors, prominent practitioners all, who took the time from their busy schedules to write instructive, thoroughly researched articles that will benefit all of us. Thanks also go to NYSACDL President Aaron Mysliwiec, who coordinated the efforts and harassed everyone to get the job done; and isn’t that the president’s role, after all? This summer marks a dual milestone; the 50th anniversary of the Criminal Justice Act and the Civil Rights Act of 1964, both of which brought the promise of some measure of justice to the people of this country. The job is far from done, as we know, and each day brings new challenges to the justice system from legislators interested not in justice or fairness, but re-election and power. Often, those of us who toil each day in the trenches of the criminal justice system find ourselves fighting an uphill battle against those who are unshaken in their belief that anyone arrested must be guilty, and that any shortcut leading to conviction and harsh sentencing is justified. There’s an old famous drawing by Charles Bragg, a leading legal illustrator, of a man in a rumpled suit, tie askew, glasses tilted over his face, briefcase in hand, shielding a small, frightened person who peers out from around the lawyer’s legs. That is who we are; the last line of defense for many, standing between the people and the awesome power of the government. We sincerely hope that the unfulfilled promises of those landmark laws will someday come to fruition. No lawyer more personified the hope of those laws than our Ed Wilford, whose untimely and tragic passing is noted prominently in this issue. His quest for justice for all people, his legal acumen, his humor, and most of all his humanity, will be his legacy. We mourn the loss of our brother at the bar, and our friend. — Benjamin Ostrer, John S.Wallenstein, Jessica Horani

THE EDITORS APOLOGIZE Sometimes we are defined by what we can fit between the covers, not by the quality of the writing. We had so many excellent submissions for this premier White Collar issue that lack of space forced us to cut. Our apologies to Michael Shapiro, whose article on the definition of property under the Hobbs Act and other laws will appear in the next issue.

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Dispatches from 90 State Submit an Article to Atticus Members wishing to submit articles for inclusion in Atticus should submit them via email to atticus@nysacdl.org. Questions regarding submission may be directed to: Jennifer Van Ort, Executive Director, NYSACDL 518-443-2000 jlvanort@nysacdl.org

The editors reserve the right to modify any submission for style, grammar, space and accuracy. Authors are requested to follow these guidelines: 1. Use footnotes rather than endnotes. 2. When a Case is mentioned in the text, its citation should be in the text as well. 3. Articles longer than 4 pages may be edited or serialized.

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Jennifer Van Ort Executive Director

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s we enter the latter months of 2014, NYSACDL is poised to complete another successful year serving our members and friends throughout New York State. As you will see in this issue, our CLE Committee Co-Chairs and Seminar Coordinators have developed a robust and diverse fall season of CLE seminars that will meet the needs of criminal defense practitioners with a variety of interests. We are also looking forward to upgrading our web site and database systems to provide more efficient ease of use for members and friends, as well as enhanced resources and information.

I strongly encourage you register early for our upcoming CLE seminars. We were thrilled that our annual Cross to Kill seminar in April of this year sold out and I do not want you to miss out on any of our fall opportunities in which you may be interested. We will start out the season with our Convictions of the Innocent seminar on September 19 at New York Law School. This seminar, with top-notch featured faculty, will take an in-depth look at wrongful convictions in New York State and prepare you for handling these important cases to ensure the best for those in these unfortunate situations. Our New York Law School series continues on October 24 with an expanded Federal Practice seminar with local, regional and national faculty that will include a variety of topics for both the experienced and new Federal practitioner. In between, we will travel to Syracuse on October 18 for another interesting and educational seminar – the plans for this fall seminar will include a special twist on the usual, so stay tuned for that important announcement. Then it will be off to Buffalo for another SuperStar Trial Seminar on November 7th which will again feature experienced local and national faculty and a special panel discussion that you won’t want to miss. We round out the year with trips to Poughkeepsie and a return to New York City for our annual Hudson Valley Seminar on November 14 and Weapons for the Firefight on December 5. Our Hudson Valley Seminar co-coordinators have worked hard to bring some of NYSACDL’s past top-rated presenters to Poughkeepsie, as well as focusing on topics important to practitioners in that region. Weapons for the Firefight, as always, and its high-caliber faculty will prepare you for the variety of issues you face daily in your practices.

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


I strongly encourage you to view the featured faculty and topics on the CLE Seminar Calendar later in this issue and mark your own calendars now to attend one or several of these first-rate seminars this fall. As a reminder, we do also videorecord most of our seminars, so should you happen to miss a presentation, you can purchase it for online viewing at your convenience (access never expires once your purchase has been made). The process of purchasing these online seminars is one of the many services that will be streamlined with the updates to our web site and database system I mentioned above. Members can also look forward to streamlined membership renewals, CLE seminar registration, and access to membership history, CLE Certificates of Attendance, and many other premium features once the transition is complete. I am pleased that we will be able to enhance our member services with this new system and we remain committed to looking for enhancements such as this that will improve the quality of our services, which, in turn, enhance the quality of service you can provide to your clients. As always, thank you for your commitment to protecting the rights of criminal defendants in New York State and for choosing a NYSACDL membership as one of the tools you use to fulfill that commitment. A

Find NYSACDL on Facebook, LinkedIn & Twitter

The New York State Association of Criminal Defense Lawyers Foundation Announces a New Benefit for Members Upon request, the Foundation will organize panels of at least three “judges” to moot appellate arguments in locations across New York State. The Foundation guarantees a moot court panel for any member in New York State who has a criminal case before the Court of Appeals or the United States Court of Appeals for the Second Circuit. For attorneys with arguments before an Appellate Division, the Foundation will organize a moot court panel as resources allow.

Volunteer Moot Judges Include:

Martin Adelman Joshua Dratel Claudia Trupp Paul Cambria Susan Abraham Marc Fernich

James Grable Julia Kuan Ben Ostrer Alan Lewis Michael Shapiro Greg Lubow

Jonathan Fishbein Aaron Mysliwiec Mitchell Dinnerstein Dan Arshack Matthew Kluger David Woodin

and Attorneys from the Federal Defenders Office of New York To request a panel of judges, or if you have questions about the program, contact NYSACDL’s Executive Director, Jennifer Van Ort 518/443-2000 • jlvanort@nysacdl.org

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers

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Medical & Law School Teaching Experience Excellent Communicator References Available

David M. Benjamin, Ph.D. 617-969-1393 Email: medlaw@doctorbenjamin.com Website: www.doctorbenjamin.com

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Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers

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nysacdl Legislative Committee 2014 Legislative Committee: Andy Kossover, Co-Chair (New Paltz) Lisa Schreibersdorf, Co-Chair (Brooklyn) Bruce Barket (Garden City) Wayne Bodden (Brooklyn) Jonathan Fishbein (Albany County) Greg Lubow (Greene County) Aaron Mysliwiec (New York City) Kevin O’Connell (New York City) Alan Rosenthal (Syracuse) Josh Saunders (Brooklyn) Andre Vitale (Rochester) Nikki Zeichner (New York City) If you have any specific issues you would like to bring to the legislative committee, contact the chair, Andy Kossover. If you have any relationships with your local politicians, or believe your local district attorney would support sealing or discovery reform, it would be helpful for the legislative committee to be aware of that as well. Feel free to contact any of the members above if you are interested in participating in legislative work. It is particularly helpful if you have an expertise that we can draw on in those final moments of the session when bills are being proposed and passed very quickly.

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Members

Areas of Interest

Andy Kossover, Co-Chair

Discovery Reform, Sealing, Public Defense, Forensics, Letters to the Editor

Lisa Schreibersdorf, Co-Chair

Age of Criminal Responsibility, Sealing, Public Defense, Mental Health, Immigration

Bruce Barket

Discovery Reform

Wayne Bodden

Discovery Reform, Police Interrogations

Jonathan Fishbein

Letters to the Editor

Greg Lubow

DWI, Public Defense, Sealing/Expungement

Aaron Mysliwiec

White Collar Crime,

Letters to the Editor

Kevin O’Connell Age of Criminal Responsibility, Public Defense, Discovery Reform, Letters to the Editor, Sealing/Expungement Alan Rosenthal

Parole Reform, Diversion, Sentencing, Sealing/Expungement

Josh Saunders

Public Defense, Bail Reform

Andre Vitale

Public Defense, Forensics

Nikki Zeichner

Parole Reform

Andy Kossover

Lisa Schreibersdorf

In an effort to make Atticus even better, the editors would like to start a "letters to the editor" feature. We encourage members to tell us what they like, what they don't like and to comment about anything in the magazine. Letters should be no longer than 100 words and should be sent to atticus@nysacdl.org. We cannot, however, guarantee that all letters will be printed.

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Criminal Liability Under The Economic Espionage Act

Justin M. Sher is a partner at Sher Tremonte LLP, a litigation boutique focusing on white collar criminal investigations and business litigation in New York City.

Mark Cuccaro is an associate at the firm. They may be reached by phone at 212.202.2600 and by email at jsher@shertremonte.com and mcuccaro@shertremonte.com.

By Justin M. Sher and Mark Cuccaro

A manager at a company recruits a star employee from a competitor with promises of higher pay and opportunity for advancement. Hoping to impress his new employer, the star employee brings with him valuable information. It may be a section of source code for a high-frequency trading algorithm, a customer list that took years to compile, schematics for an engineering break-through, or a secret cupcake recipe. Many businesses and employees know this scenario is likely to lead to civil litigation over misappropriation of trade secrets and related civil claims. What they may not know is it may also trigger criminal liability. Indeed, whether you represent the manager, the company, the star employee or the competitor, criminal practitioners should be familiar with the Economic Espionage Act.

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Trade SEcrets Continued from previous page

The Key Provisions of the EEA Recent years have seen a rise in federal criminal prosecutions for theft of trade secrets under the Economic Espionage Act of 1996, codified at 18 U.S.C. §§18311839 (the “EEA”). The statute has two main parts. Section 1832 criminalizes ordinary trade secret theft. Section 1831 criminalizes so-called “economic espionage,” i.e., the provision of trade secrets to foreign countries. Conviction under Section 1832 for trade secret theft requires a showing that the defendant knowingly misappropriated a trade secret with the intent to economically benefit someone other than the owner, and with the intention or knowledge that the offense will injure the owner. The elements of a criminal violation under the EEA are similar to the elements of a civil claim in most jurisdictions.1 The definition of “trade secret” under the EEA is also similar to definitions in the civil context.2 It includes all forms of financial, business, scientific, or technical information, whether tangible or intangible, that the owner has taken reasonable measures to keep secret and that derives independent economic value from its secrecy. See 18 U.S.C. §1839. Misappropriation includes the duplication, download, destruction, communication, receipt, purchase, or possession of a stolen trade secret. Attempts and conspiracies to violate the statute are also criminalized. Individuals convicted under the statute face a fine and up to ten years in prison. Corporations convicted under the statute face a fine of up to $5,000,000. In addition, in imposing sentencing, the court is required to order the forfeiture of any proceeds or property derived from the violation, and may order the forfeiture of any property used to commit or to facilitate the commission of the crime. See 18 U.S.C. §1834. The primary difference between the offense of ordinary trade secret theft under §1832 and the offense of economic espionage under §1831 is that economic espio-

See, e.g. Strata Mktg., Inc. v. Murphy, 317 Ill. App. 3d 1054, 1068, 740 N.E.2d 1166, 1176 (Ill. 2000) (to state a claim under the Illinois Trade Secret Act, a plaintiff must allege that the information at issue was “(1) a trade secret; (2) misappropriated; and (3) used in the defendant’s business”); Sylmark Holdings Ltd. v. Silicone Zone Int’l Ltd., 5 Misc. 3d 285, 297, 783 N.Y.S.2d 758, 770-71 (N.Y. Sup. Ct. 2004) (to establish a claim of misappropriation of trade secrets, a plaintiff must show “(1) that it possesses a trade secret, and (2) that defendant is using that trade secret in breach of an agreement, confidence, or duty, or as a result of discovery by improper means.”) In this regard, theft of trade secrets is similar to the federal law governing securities fraud, which fails to make a clear distinction between civil and criminal liability. See Samuel W. Buell, What is Securities Fraud, Duke L.J. Vol. 61:511 (Dec. 2011) (arguing, “the line between civil and criminal liability has become unacceptably blurred.”) 1

Section 1(4) of the Uniform Trade Secret Act defines “trade secret” as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Similarly, comment b of section 757 of the Restatement of Torts defines trade secret as “any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.”

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nage requires a showing that the defendant either intended or knew that the misappropriation of the trade secret would “benefit any foreign government, foreign instrumentality, or foreign agent.” Economic espionage under §1831 also carries with it a stiffer penalty, in part due to a 2012 amendment labeled the Foreign and Economic Espionage Penalty Enhancement Act: individuals can now be imprisoned for up to 15 years and fined up to $5,000,000 and corporations can be fined for up to $10,000,000 or 3 times the value of the stolen trade secret to the organization. Sections 1831 and 1832 are otherwise very similar. Both require a showing of knowing misappropriation of a trade secret and define trade secret and misappropriation the same way. Both criminalize attempts and conspiracies to commit the underlying offense equally.

Recent Trends in EEA Prosecution The protection of American companies’ trade secrets has been a priority of the Obama administration, which is increasingly using criminal prosecutions under the EEA as a means to that end. A white paper issued by the White House in 2013 entitled Administration Strategy on Mitigating the Theft of U.S. Trade Secrets warned that “[F]oreign competitors of U.S. corporations, some with ties to foreign governments, have increased their efforts to steal trade secret information” and declared that the investigation and prosecution of trade secret theft is a “top priority” for the U.S. Department of Justice (“DOJ”). The DOJ reported a 70 percent increase in prosecutions under the EEA between 2008 and 2013. Similarly, the FBI reported a 39 percent increase in trade secrets investigations between 2009 and 2013. Most recently, the DOJ announced the indictment of five Chinese nationals under the EEA for allegedly stealing trade secrets relating to Westinghouse power plants. Despite these reported increases, prosecutions under the EEA remain relatively rare. There are still typically no more than 10-20 prosecutions a year, which pales in comparison with the more commonly invoked federal criminal statutes. The Department of Justice’s internal guidelines list the factors considered by the government in deciding whether to bring a prosecution under the EEA: (a) the scope of the criminal activity, including evidence of involvement by a foreign government, foreign agent or foreign instrumentality; (b) the degree of economic injury to the trade secret owner; (c) the type of trade secret misappropriated; (d) the effectiveness of available civil remedies; and (e) the potential deterrent value of the prosecution. Prosecutions have occurred for trade secret theft in a wide variety of fields, including financial technology, pharmaceuticals, telecommunications, and the automotive industry. A significant number of recent prosecutions under the EEA have involved trade secret theft for the benefit of companies based in China. Continued on next page

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Trade SEcrets Continued from previous page

Representative Prosecutions Under the EEA A few representative cases are described below:

United States v. Jin, 733 F.3d 718 (7th Cir. 2013). In November 2011, Customs and Border Protection officers at Chicago’s O’Hare Airport stopped Hanjuan Jin, a former Motorola software engineer, while she was carrying 1,000 sensitive Motorola documents, $30,000 in cash, and a one-way ticket to China. Jin was in the process of traveling to China to turn over stolen trade secret information detailing the company’s ‘‘push-to-talk’’ iDEN technology to a Beijing-based company providing communication systems for the Chinese military. Jin was convicted in a federal court in Illinois and sentenced to 48 months in prison. Her conviction has been upheld by the Seventh Circuit Court of Appeals. United States v. Agarwal, 726 F.3d 235 (2d Cir. 2013). Samarth Agarwal was a proprietary trader at the French bank Société Générale (SocGen). Without authorization from his employer, Agarwal printed and took home more than a thousand pages of SocGen’s high frequency trading system’s source code. Agarwal intended to move to a position at a rival high frequency trading firm, where he would use these trade secrets for its benefit. Agarwal was arrested at his home by FBI agents on the day he was to begin work at the new firm. Following his conviction for theft of trade secrets by a federal court in New York, Agarwal was sentenced to three years’ imprisonment, which he is currently serving. His conviction has been upheld by the Second Circuit Court of Appeals. United States v. Cao, 13-cr-00150 (S.D. Ind.). Two former Eli Lilly & Co. scientists, Guoquin Cao and Shuyu Li, were indicted in federal court in Indiana for allegedly disseminating trade secrets valued at more than $55 million to a Chinese competitor. The defendants have been accused of electronically sending their employer’s trade secrets to a major Chinese pharmaceutical company that recently began competing in U.S. markets. The trade secrets allegedly misappropriated pertain to new treatments for cancer, cardiovascular disease, and diabetes. Trial is currently scheduled for January 2015. United States v. Kolon Industries, 12-cr-137 (E.D. Va.). Kolon Industries, a Korean company, and several of its employees have been indicted for allegedly conspiring to steal trade secrets from DuPont relating to the production of the synthetic fiber Kevlar. The defendants allegedly hired former DuPont employees in a “consulting” capacity for the purpose of extracting trade secret information from them. In a related civil lawsuit between DuPont and Kolon, a jury awarded damages of $919 million to DuPont in 2011. This verdict was overturned in April 2014 due to the exclusion of certain evidence at trial. In the pending criminal matter, the government is seeking the forfeiture of over $225 million. The forfeiture sought represents all of the gross profits from the sale of the defendants’ Heracron product, which allegedly is derived from DuPont’s Kevlar trade secrets. This case is particularly significant in that it shows the DOJ’s willingness to target foreign corporate defendants and seek massive forfeitures in doing so. A trial date has not yet been set due to procedural difficulties in serving the defendants in Korea.

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Aleynikov and the Theft of Trade Secrets Clarification Act Successful defenses to charges brought under the EEA have been few and far between. One conspicuous example is the Sergey Aleynikov case, which took advantage of the EEA’s requirement of a nexus with interstate or foreign commerce. Aleynikov was a computer programmer for Goldman Sachs, who worked on the source code for the company’s proprietary high-frequency trading system. Just prior to leaving to work at a competitor in June 2009, Aleynikov downloaded more than 500,000 lines of Goldman Sachs’s proprietary trading code to his home computer, with the intention of using that code at his new job. Shortly thereafter, Aleynikov was arrested by the FBI. He was later convicted by a jury of violating the EEA and sentenced to 97 months of imprisonment. Aleynikov’s conviction was overturned on appeal in United States v. Aleynikov, 676 F.3d 71, 75 (2d Cir. 2012). As initially drafted, Section 1832 of the EEA required that the trade secret at issue be “related to or included in a product that is produced for or placed in interstate or foreign commerce.” The Second Circuit Court of Appeals held that this requirement was not met in Aleynikov’s case because the high-frequency trading system at issue was not related to a product produced for or placed in interstate commerce.3 As a direct result of the Aleynikov holding, Congress amended the EEA with the Theft of Trade Secrets Clarification Act of 2012. Under this amendment, the statute now applies to all trade secrets that are “related to a product or service used in or intended for use in interstate or foreign commerce.” (emphasis added). As a result of this broader language, no subsequent challenges to EEA charges on interstate/foreign commerce grounds have been successful.

Advice for Clients on EEA Issues Companies should be advised to take precautions to ensure that they and their employees avoid running afoul of the EEA’s provisions by receiving the trade secrets of others. Employees whose work directly or indirectly involves sensitive information, especially those in a management position, should be trained to identify and appropriately address potential violations of the trade secret laws. In furtherance of that goal, such employees should be instructed on the essential provisions of the EEA. It may be helpful to provide a clear written summary of what constitutes a trade secret in the given industry in an employee handbook. In addition, mandatory training may be advisable for departments where the risk of trade secret controversies is particularly high. Compliance and legal personnel should be directly involved in this process, and

Shortly after his acquittal on the federal trade secret charges, Aleynikov was indicted by the State of New York for Unlawful Duplication of Computer Related Material (N.Y. Penal Law § 156.30) and Unlawful Use of Secret Scientific Material (N.Y. Penal Law § 156.30). His trial on these charges has not yet occurred. Aleynikov’s second prosecution demonstrates that practitioners and clients need to be wary of both the EEA and its state law analogs.

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Trade SEcrets Continued from previous page make themselves readily available to any employee who needs assistance with sensitive trade secret issues that arise. Whatever educational process is adopted, all employees should be informed that the unauthorized use of a competitor’s trade secrets is both a violation of the company’s policies and a crime. The company should be clear and emphatic in stating that it does not wish to and will not receive trade secrets from competitors, and that any employee found engaging in such conduct will be terminated. Companies should be particularly wary of interactions with employees and former employees of competitors. Consulting arrangements with current employees of competitors – a fact pattern common to a number of recent prosecutions – should be avoided absent special circumstances justifying the arrangement. While hiring a former employee of a competitor is generally appropriate and permissible, extra care should be taken to avoid any appearance of impropriety. The reasons for hiring the employee should be thoroughly documented, establishing a clear record should the hiring be scrutinized down the line. The records should show that the employee had the necessary skills, professional background, and experience to perform the specific duties required for position for which he or she was hired. Any former employee being hired should be expressly instructed not to bring any trade secrets with them as a condition of their new employment arrangement. It is also important for companies to closely monitor acquisitions to ensure there are no potential trade secret violations lurking in the newly acquired entities. For example, during the due diligence phase leading up to acquisitions, acquirers should pay close

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attention to any completed or pending litigation or investigations relating to trade secrets. Warning bells should go off if the acquired company has suddenly and inexplicably developed a product or service that would typically take a significantly longer period of time to develop. Another possible sign of trouble is the presence of employees with ill-defined roles who previously worked for competitors, as in the Kolon Industries case. Potential corporate victims can also benefit from counseling under the EEA. Companies with research and development departments should make sure that they are properly compartmentalized to reduce the risk of leaks. Employees with access to sensitive materials should be required to sign robust nondisclosure and confidentiality agreements. Access to trade secrets should be restricted to only those who need such access in order to perform their responsibilities. Employees should be educated on the consequences, both civil and criminal, of misappropriating trade secrets. As suggested above, new hires should be carefully scrutinized, especially those with connections to foreign competitors. In the event that a company suspects that a misappropriation of trade secrets has already occurred, it should weigh the pros and cons of involving the federal criminal authorities. One advantage is that the government can marshal its substantial investigative resources to assemble the evidence and prosecute suspected trade secret thefts, potentially sparing the trade secret owner the time and expense of doing so on its own in a civil proceeding. As many trade secret theft cases have connections to foreign countries, the government’s generally greater ability to obtain foreign discov-

ery creates a further advantage over civil litigation. Another advantage is the increased deterrent effect of criminal prosecution and the threat of prison time for would-be violators of the statute. However, there may also be disadvantages to enlisting government assistance. The principal disadvantage is that once a criminal investigation is initiated, the government, and not the owner of the trade secrets, will assume complete control of the process. The government may seek to stay any parallel civil proceeding while the criminal action is pending. In addition, while the EEA requires the courts to take “necessary and appropriate measures to preserve the confidentiality of trade secrets,” these measures are subject to judicial discretion and a criminal trial can still lead to an increased risk of dissemination of the trade secrets.

Conclusion As the importance of intellectual property in the global economy rises, prosecutions under the EEA are likely to rise as well. Researchers with sensitive information, managers recruiting fresh talent from competitors, employees looking to impress their new employers – and the companies they work for – would all be well advised to consult criminal practitioners concerning the provisions of the EEA. A

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Freedom to Annoy By Ronald L. Kuby

The great William M. Kunstler once famously said: “This is New York, and there’s no law against being annoying.” As usual, Bill was not wrong—he was just ahead of his time. On May 13, 2014, the Court of Appeals, in People v. Golb, ___NY3d___, 2014 NY Slip Op 3426 [2014] unanimously declared Penal Law §240.30(1) to be unconstitutional. The subsection criminalized acting with “intent to harass, annoy, threaten or alarm” another when one engages in any form of communication “in a manner like to cause annoyance or alarm.” That’s right; it was illegal to intend to annoy someone in a manner likely to annoy them. The law had been the bête noire of the civil liberties community for decades, being used to criminalize and obtain orders of protection against the crazy and the critical, the dissident and the daft, and the quixotic and the querulous.

Ronald L. Kuby has been a lawyer in New York City for more than 25 years, successfully representing clients in some of the most high-profile criminal and civil rights actions in the United States.

As an annoying person myself, I was pleased to have wielded the hammer that pounded the final nail into that coffin. But much of the hard work was done by my predecessors and contemporaries in the criminal defense and civil liberties communities. As far back as 1977, the Appellate Term, Second Department, avoided finding the law void-for-vagueness by giving it a sharply limiting construction, cabining it to the narrow exceptions for speech entitled to no constitutional protection. People v. Smith, 89 Misc.2d 789 (App. Term, 2d Dep’t 1977). The First Department, in 1985, found the law unconstitutional as applied to a disgruntled litigant who insisted on distributing a self-published magazine devoted exclusively to the alleged perfidy of his lawyer, said distribution occurring in venues where the lawyer and his clients frequented (including outside of his grandson’s bar mitzvah!). People v. Dupont, 107 a.D.2d 247 (1st Dept. 1985). The Court of Appeals spoke in People v. Dietze, 75 N.Y.2d 47 (1989), construing what constituted a “threat,” and made it clear that the statute could be applied only to communications outside the protections of the First Amendment. And in Vives v. City of New York, 305 F.Supp2d 289 (S.D.N.Y. 2003), rev’d on other grounds, 405 F.3d 115 (2d Cir 2004), Chris Dunn and the NYCLU won a federal court finding that a declaration of the law’s unconstitutionality was “inevitable.” But I would be remiss if I did not note the role that the previous and current District Attorney of New York County played in the law’s demise, electing to criminalize, overcharge, over-try, and over-litigate a case that could have and should have been disposed of, years ago, without trial. Retired Continued on page 45

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Willful Blindness: Beyond Global-Tech

by John Cline

I. Introduction In Global-Tech Appliances, Inc. v. SEB S.A., 1 the Supreme Court addressed willful blindness for the first time. Global-Tech settled the debate over the legitimacy of the judge-made willful blindness doctrine. It also resolved the key question about the scope of the doctrine. The Court made clear that a defendant’s “deliberate indifference” to the disputed fact is not enough. To be willfully blind, a defendant must take “deliberate action” (or make “active efforts”) to avoid knowledge. But perhaps because the Court’s discussion of willful blindness occurred in an obscure patent infringement case, the courts of appeals have been slow to apply its lessons in criminal cases. This essay outlines the law of willful blindness before Global-Tech, summarizes the Supreme Court’s decision, describes the reaction of the federal courts of appeals to that decision, and discusses the willful blindness issues that remain in Global-Tech’s wake.

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John Cline is an attorney in San Francisco, California. He has tried criminal cases in federal district courts from New York to California and state courts from Maryland to New Mexico. He has argued appeals in the United States Supreme Court, nine federal circuits, and the appellate courts of several states. In addition to conducting trials and appeals nationwide, John represents witnesses, subjects, and targets in grand jury proceedings and other investigations. He handles habeas corpus proceedings in federal and state courts. He writes amicus curiae briefs on criminal law issues in the United States Supreme Court and the federal courts of appeals. And he writes and speaks widely on criminal law issues.

II. Willful Blindness Before Global-Tech

was enough for the defendant to choose not to look, or if he had to cover his eyes.

Until 2011, the Supreme Court had not squarely addressed the concept of willful blindness (also known as conscious avoidance and deliberate ignorance). All courts of appeals except the D.C. Circuit had embraced the doctrine,2 and courts generally agreed that willful blindness had two elements: (1) that the defendant was aware of a high probability of the existence of the disputed fact, and (2) that he consciously avoided confirming the fact.3

III. Global-Tech

That broad agreement among the circuits masked an important question. The government typically argued actual knowledge and willful blindness as alternative theories and sought jury instructions on both. The evidence that supported actual knowledge would generally meet the government’s burden of production on the “high probability” prong.4 The issue usually became, therefore, whether the government had produced evidence that the defendant deliberately avoided knowledge. The central debate was whether deliberate inaction—a failure to investigate—was enough, or whether the defendant had to take active steps to avoid knowledge.5 In colloquial terms, courts asked if it 1

131 S. Ct. 2060 (2011).

2

See id. at 2070 n.9 (citing cases).

See, e.g., United States v. Carlo, 507 F.3d 799, 802 (2d Cir. 2007); United States v. Heredia, 483 F.3d 913, 917 (9th Cir. 2007) (en banc); United States v. Svoboda, 347 F.3d 471, 480 (2d Cir. 2003).

3

To obtain an instruction on willful blindness, the government must produce evidence from which a rational jury could find each prong proven beyond a reasonable doubt. See, e.g., United States v. AinaMarshall, 336 F.3d 167, 170 (2d Cir. 2003).

4

The Supreme Court addressed this question in Global-Tech. An eightJustice majority defined the elements of willful blindness as follows: “(1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact.”6 The Court emphasized the requirement that the defendant take “deliberate actions” to avoid learning the key fact. It declared: “We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts.”7 The Court faulted the Federal Circuit for requiring only “deliberate indifference”: “[I]n demanding only ‘deliberate indifference’ to that risk [that the disputed

Compare, e.g., United States v. L.E. Myers Co., 562 F.3d 845, 854 (7th Cir. 2009) (“[W]e have held that to support an inference of deliberate ignorance, there must be evidence that the defendant took steps to make sure that he did not acquire full or exact knowledge of the nature and extent of the illegal activity. Failure to display curiosity is not enough; the defendant must affirmatively act to avoid learning the truth.”) (emphasis in original; internal quotation omitted) with United States v. Svoboda, 347 F.3d 471, 481 (2d Cir. 2003) (sufficient if defendant made a “conscious effort to avoid confirming an otherwise obvious fact,” without requiring any affirmative act).

5

6

131 S. Ct. at 2070.

7

Id. at

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Willful Blindness Continued from page 21 fact existed], the Federal Circuit’s test does not require active efforts by an inducer to avoid knowing [the fact].”8 The Court found the evidence sufficient to support a finding of willful blindness, because the jury could have inferred that the defendant “took deliberate steps to avoid knowing [the disputed] fact.”9 The Supreme Court’s repeated references to action—”deliberate actions,” “active efforts,” “deliberate steps”—and its express rejection of the Federal Circuit’s “deliberate indifference” standard leave no doubt that a mere failure to investigate does not suffice for deliberate ignorance. A failure to investigate— even a deliberate failure to investigate— is simply “deliberate indifference” by another name.

IV. The Aftermath Of Global-Tech The courts of appeals have had mixed reactions to Global-Tech in criminal cases. The Third and Eighth Circuits revised their criminal pattern jury instructions to include the “deliberate actions” requirement.10 The commentary to the Seventh Circuit’s criminal pattern instructions acknowledges that Global-Tech “provided an arguably narrower definition of the sort of willful blindness that equates to knowledge” and suggests that district judges “consider” whether to adopt the Global-Tech

8

Id. at 2071 (emphasis added).

9

Id. at 2072 (emphasis added).

Some circuits have thus far not fully embraced the distinction the Supreme Court drew between “deliberate indifference” on one hand and “active efforts” to avoid knowledge on the other. The Second Circuit, for example, recently affirmed a willful blindness instruction that omitted the “deliberate actions” requirement.14 The First, Fifth, Sixth, and Eleventh Circuits have done likewise.15 As discussed in the next part, however, these courts have not clearly explained their understanding of Global-Tech, and they may yet bring themselves into line with the Supreme Court’s requirements.

V. Remaining Issues Global-Tech answered one question: whether the judges may adopt a willful blindness mens rea where the statute

Pattern Criminal Jury Instructions of the Seventh Circuit, Instruction 4.10, Committee Comment (2012 ed.). 2070-71 (emphasis added). 11

12 United States v. Jinwright, 683 F.3d 471, 478-79 (4th Cir. 2012), cert. denied, 133 S. Ct. 843 (2013).

13 Luvdarts, LLC v. AT&T Mobility, LLC, 710 F.3d 1068, 1073 (9th Cir. 2013); United States v. Yi, 704 F.3d 800, 804-05 (9th Cir. 2013).

14 United States v. Whitman, 555 Fed. Appx. 98, 2014 U.S. App. LEXIS 2942, at *13-*14 (2d Cir. 2014) (unpublished).

10 Third Circuit Model Criminal Jury Instructions § 5.06 (2014); Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit § 7.04 (2013).

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definition.11 The Fourth12 and Ninth13 Circuits appear to have adopted the Global-Tech requirements, although it remains to be seen how rigorously those courts will apply them.

15 United States v. Reichert, 747 F.3d 445, 449-51 (6th Cir. 2014); United States v. Grant, 521 Fed. Appx. 841, 848 (11th Cir. 2013) (unpublished); United States v. Denson, 689 F.3d 21, 24-25 (1st Cir. 2012), cert. denied, 133 S. Ct. 996 (2013); United States v. Brooks, 681 F.3d 678, 702-03 (5th Cir. 2012), cert. denied, 133 S. Ct. 836 (2013).

requires knowledge. Despite some lingering uncertainty, it also resolved the debate over the second element of willful blindness: “deliberate actions” to avoid knowledge are required. GlobalTech did not address a third question that has split the circuits: the appropriate harmless error analysis for an erroneous willful blindness instruction. We address these issues in turn. A. The Legitimacy of the Willful Blindness Doctrine. Beginning with then-Judge Anthony Kennedy’s dissent in a seminal willful blindness case,16 some judges have maintained—correctly, in my view— that when Congress establishes a mens rea of knowledge, judges may not substitute willful blindness for that statutory requirement.17 To do so disregards congressional intent and amounts to forbidden common law crime creation. If Congress wants to recognize willful blindness as a substitute for knowledge, it can say so—as it has done in some statutes, including the Foreign Corrupt Practices Act.18 However persuasive this view may be, it did not carry the day in Global-Tech. Justice Kennedy reiterated it in his GlobalTech dissent, but no other Justice joined

16 United States v. Jewell, 532 F.2d 697, 706 (9th Cir. 1976) (en banc) (Kennedy, J., dissenting).

17 See, e.g., United States v. Heredia, 483 F.3d 913, 930-33 (9th Cir. 2007) (en banc) (Graber, J., dissenting); Ira P. Robbins, The Ostrich Instruction: Deliberate Ignorance as a Criminal Mens Rea, 81 J. Crim. L. & Criminology 191 (1990). For an elegant argument on this point, see former Solicitor General Kenneth W. Starr’s amicus curiae brief on behalf of NACDL in Heredia.

18 15 U.S.C. § 78dd-2(h)(3)(B); see also 31 U.S.C. § 3729(b)(1)(A)(ii) (civil False Claims Act).

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him.19 It is fair to conclude that, absent congressional action, the judge-created willful blindness doctrine is here to stay. B. The Substance of the Willful Blindness Instruction. Global-Tech establishes that the second prong of the willful blindness standard requires “deliberate actions” to avoid knowledge. As noted, the Third and Eighth Circuits have revised their pattern instructions to include this requirement. It remains to be seen whether other circuits with pattern instructions—the First, Fifth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits— will similarly modify their pattern instructions to comply with Global-Tech. Some of those pattern instructions already suggest that more than a failure to investigate is necessary to satisfy the second willful blindness prong. For example, the First Circuit instruction requires proof that the defendant “willfully made himself/herself blind to [the] fact” or “deliberately closed his/her eyes to the fact.”20 The Fifth Circuit instruction requires proof that the defendant “deliberately closed his eyes to what would otherwise have been obvious to him.”21 The Sixth, Tenth, and Eleventh Circuit instructions contain similar language.22 19 Global-Tech, 131 S. Ct. at 2072-73 (Kennedy, J., dissenting).

20 Pattern Criminal Jury Instructions for the District Courts of the First Circuit, Instruction 2.14 (1997).

But to ensure that jurors do not take this language to be merely figurative, not requiring actual physical action, these pattern instructions should be revised to provide specifically that the defendant take deliberate actions or make active efforts to avoid learning the disputed fact. As support for its formulation of the willful blindness doctrine, Global-Tech includes a footnote citing cases from a number of circuits.23 Some courts have taken this footnote as an endorsement of their existing instructions, without an express “deliberate actions” or “active efforts” requirement.24 This reads too much into the footnote. The Supreme Court set out a precisely drawn twopart standard, including the “deliberate actions” requirement, and it reiterated that requirement several times, specifically distinguishing it from the Federal Circuit’s “deliberate indifference” standard. Rather than cling to different, weaker standards based on a single footnote, all circuits should follow the example of the Third and Eighth Circuits and bring their instructions in line with Global-Tech. C. Willful Blindness and Harmless Error. Suppose a district court gives a willful blindness instruction without evidentiary support—where, for example, the government does not present evidence from which a jury could find beyond a reasonable doubt that the defendant took deliberate actions to avoid knowledge. What happens on appeal?

21 Fifth Circuit Pattern Jury Instructions (Criminal Cases), Instruction 1.37A (2012). 23

Sixth Circuit Pattern Criminal Jury Instructions, Instruction 2.09 (2014); see also Tenth Circuit Criminal Pattern Jury Instructions, Instruction 1.37 (2011) (“deliberately blinded himself”); Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Instruction 8 (2010) (“deliberately closed [his][her] eyes”).

22

Global-Tech, 131 S. Ct. at 2070 n.9.

24 See, e.g., United States v. Goffer, 721 F.3d 113, 128 (2d Cir. 2013); United States v. Brooks, 681 F.3d 678, 702-03 (5th Cir. 2012), cert. denied, 133 S. Ct. 836 (2013).

The answer, in the Sixth and Eleventh Circuits (and possibly the Third and Fourth Circuits), is nothing, as long as the government presents sufficient evidence of actual knowledge.25 These courts hold that the error in giving a willful blindness instruction without evidentiary support is automatically harmless as long as the evidence supports a finding of actual knowledge, because the jury is presumed to ignore the unsupported instruction. Other circuits take a different and, in my view, more realistic approach. These courts hold that the erroneous willful blindness instruction is harmless only if “it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” even without the improper instruction.26 Some circuits—including the Second, Eighth, and Tenth—have decisions that point both ways.27 See, e.g., United States v. Hanzlicek, 187 F.3d 1228, 1235-36 (10th Cir. 1999); United States v. Mari, 47 F.3d 782, 785-86 (6th Cir. 1995); United States v. Stone, 9 F.3d 934, 937-42 (11th Cir. 1993); see also, e.g., United States v. Lighty, 616 F.3d 321, 378-79 (4th Cir. 2010) (citing Mari); United States v. Leahy, 445 F.3d 634, 654 n.15 (3d Cir. 2006) (citing Mari).

25

26 United States v. Covington, 133 F.3d 639, 645 (8th Cir. 1998); see, e.g., United States v. Ciesiolka, 614 F.3d 347, 354-55 (7th Cir. 2010); United States v. Aguilar, 80 F.3d 329, 333 (9th Cir. 1996); United States v. Ojebode, 957 F.2d 1218, 1228-29 (5th Cir. 1992).

27 Compare, e.g., United States v. Ferrarini, 219 F.3d 145, 154 (2d Cir. 2000) (erroneous willful blindness instruction harmless only when there is “overwhelming evidence” of actual knowledge), with United States v. Adeniji, 31 F.3d 58, 63-64 (2d Cir. 1994) (appearing to endorse automatic harmless error approach). Compare United States v. Hanzlicek, 187 F.3d 1228, 1235-36 (10th Cir. 1999) (adopting automatic harmless error approach), with United States v. Hilliard, 31 F.3d 1509, 1517 (10th Cir. 1994) (adopting harmless beyond a reasonable doubt approach). Compare United States v. Hernandez-Mendoza, 600 F.3d 971, 979-80 (8th Cir. 2010) (adopting automatic harmless error approach), with United States v. Covington, 133 F.3d 639, 645 (8th Cir. 1998) (applying “harmless beyond a reasonable doubt” standard. But see United States v. Hernandez-Mendoza, 611 F.3d 418, 418-19 (8th Cir. 2010) (order denying rehearing) (asserting that conflict in circuits is illusory).

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Willful Blindness Continued from page 21

Global-Tech did not address this split in the circuits. The proper harmless error test will likely assume increased significance as courts of appeals implement the more stringent “deliberate actions” willful blindness standard. The Supreme Court presumably will resolve the issue, and end the circuit split, in an appropriate case.

Practice Tips A willful blindness instruction—especially an instruction that does not comply with Global-Tech—can have a devastating impact at trial. Consider the following steps when the government proposes the instruction: 1. Citing Global-Tech, oppose the instruction unless the government has presented evidence from which the jury could find beyond a reasonable doubt that the defendant took “deliberate actions” or made “active efforts” to avoid knowledge. Emphasize that mere failure to investigate suspicious circumstances is not enough. 2. If the district court insists on giving the instruction over your objection, request that the court include the “deliberate actions” element. The Third Circuit pattern instruction is a useful model. 3. In addition, request that the court instruct the jury that it may not find willful blindness based solely on recklessness or negligence. Global-Tech has definitions of these terms that you can include in your proposed instruction to ensure that the jury understands their meaning. 4. The Second Circuit also requires that the jury be instructed that it may not find willful blindness if “the defendant actually believes that [the fact] does not exist.” United States v. Kaiser, 609 F.3d 556, 566 (2d Cir. 2010). Although this language poses some risk of shifting the burden of proof to the defense, consider requesting it if you think it would be helpful under the circumstances of your case.

There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. — Justice Hugo Black , Griffin V. Illinois (1964) 22

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Is Not Always An Unlucky Number By Patrick Michael Megaro

I

n 1999, at the age of twenty-two, Cornealious Michael Anderson, III, a native of St. Louis, Missouri, was arrested after he and a friend robbed a Burger King manager using a BB gun. He was tried and convicted of armed robbery, and sentenced to 13 years in the Missouri Department of Corrections. Two weeks into his sentence, his family posted an appeal bond (which was unopposed by the Prosecutor), and he was released in June, 2000. His co-defendant pled guilty and received a ten-year sentence. After an unsuccessful appeal to the Missouri Court of Appeals, he was granted certiorari by the Missouri Supreme Court. In 2002, his appeal was denied in a 4-3 vote. At that point, under Missouri law, his appeal bond was supposed to have been terminated, and he should have been incarcerated. No warrant ever issued for his arrest, and nobody ever notified the Supreme Court that he was still out on bond.

Patrick Michael Megaro is a member of NYSACDL. His practice these days is primarily appellate work in various state and federal jurisdictions. Before his flight to the sunny South, he practiced in New York City .

Mr. Anderson filed a pro se motion for post-conviction relief a few months after the Missouri Supreme Court denied his appeal. In the first paragraph on the first page, he wrote that he was still out on bond. At the end of the motion, he supplied his home address in St. Louis, Missouri. He eventually hired an attorney, who represented him until the motion was denied after oral argument. At the hearing, which took place in 2004, the court was told that he was still out on bond. At that point the Prosecutor stood up and declared that he had checked with the Missouri Department of Corrections and confirmed that Anderson was, in fact, in custody. Later that day, Anderson contacted his attorney to find out what had happened in court, and his attorney informed him that there must have been a mistake, but that Continued on page 42

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Privacy On The Line Constitutional and Evidentiary Challenges to Historical Cell Site Location Evidence By Justine A. Harris and Matthew Keller1

Matthew Keller is a defense attorney focused on criminal litigation and regulatory defense work. Mr. Keller was an associate at Kramer Levin Naftalis & Frankel LLP. and has served as law clerk to the Honorable I. Leo Glasser, USDC,EDNY, and at the Staff Attorney’s Office of the United States Court of Appeals for the Second Circuit. He currently teaches at Brooklyn Law as an Adjunct Legal Writing Instructor.

24

Justine Harris is a founding member of Colson & Harris LLP, a criminal defense firm in New York City. Â She has defended individuals in sensitive federal grand jury investigations and various regulatory proceedings, and has successfully handled cases involving complex charges of insider trading, securities fraud, bank fraud, RICO, terrorism, obstruction of justice, bribery and tax fraud. Prior to opening her own

firm, Ms. Harris was an Assistant Federal Defender at the Federal Defenders of New York (2001-2010), an associate at Kramer Levin Naftalis & Frankel (1997-2001), and a law clerk to the Honorable Eugene H. Nickerson, USDC,EDNY.

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E

Special gratitude to Nicole Mormilo (Brooklyn Law School ’16) for her edits and contributions.

1

As Chief Justice Roberts noted last Term, cell phones are now “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Riley v. California, 134 S. Ct. 2473, 2484 (2014).

2

See Electronic Communications Privacy Act (ECPA) (Part II): Geolocation Privacy and Surveillance: Hearing Before the Subcomm. on Crime, Terrorism, Homeland Sec. & Investigations of the H. Comm. on the Judiciary, 113th Cong. 50 (2013) (statement of Matt Blaze, Associate Professor, University of Pennsylvania).

3

lectronic surveillance has become a mainstay of law enforcement. Wiretaps, GPS monitoring, social media evidence, texts and emails are now routine elements of a prosecution. Increasingly, cell site location evidence is being added to this repertoire. Because cell site location evidence can identify the location of a user’s cell phone and users keep their phones on their persons at all times,2 location data is a fast, inexpensive and, increasingly, more accurate substitute for old-fashioned physical surveillance. But unlike physical surveillance, cell site evidence can locate a defendant in private places and can effectively track a person’s every move over a prolonged period of time. It can be a form of invasive and extended 24-hour surveillance that would have been neither possible nor practical with physical observation. In many cases, the government has sought and obtained this evidence without a warrant or showing of probable cause, a practice that raises troubling Fourth Amendment questions. Recent trial court and appellate decisions provide the defense practitioner with powerful new legal precedents to challenge the warrantless acquisition of cell site data. Moreover, even if the constitutional arguments fail, there are myriad alternative grounds to preclude the prosecution’s use of cell site location evidence. Cell Site Location Data – What Is It and How is It Obtained? Cell site location data is produced as a result of how cellular networks operate: cell phones connect to the wired telephone system through a network of base stations, or cell sites, maintained by wireless operators such as Verizon and AT&T. “When turned on, [c]ell phone handsets periodically (and automatically) identify themselves to the nearest base station (that with the strongest radio signal) as they move about the coverage area.”3 Accordingly, whenever you make or receive a call, or send a text, email or Internet data over the network, the wireless operator creates a record of the connection. Likewise, Continued on page 28

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Nysacdl at Nacdl Annual Meeting July 30 through August 2 marked the NACDL Annual Meeting in Philadelphia, which featured the installation of Ted Simon as NACDL President. All in attendance enjoyed the hospitality of the City of Brotherly Love, including special tours of the historic City Hall, Independence Hall, and the Foundation for Criminal Justice dinner at the National Constitution Center. We were honored by a keynote address from United States Attorney General Eric Holder, and enjoyed an excellent CLE program. NYSACDL was well represented at the NACDL meeting. Enjoying the net-

working and the festivities were President Aaron Mysliwiec, Vice-President John Wallenstein, Directors Ken Moynihan and Susan Walsh, and Past Presidents Larry Goldman, Mark Mahoney, Bill Aronwald, Murray Richman, Josh Dratel, Dan Arshack, and Richard Willstatter, as well as NYSACDL member and New York Criminal Bar Association President Stacey Richman. Our partnership and affiliation with NACDL is strong. NACDL Executive Director Norman Reimer attended our June Board meeting, and NYSACDL Executive Director Jen Van Ort regu-

The poor man looks upon the law as an enemy, not as a friend. For him the law is always taking something away. — Attorney General Robert F. Kennedy Law Day speech, 1964 (l-r) John Wallenstein, Ken Moynihan, Stacey Richman, Aaron Mysliwiec, Norman Reimer at FCJ Dinner in Philadelphia

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larly attends networking meetings with other state EDs. Watch the website for a special membership offer, discounting membership dues if you join NYSACDL and NACDL together. As an NACDL affiliate, NYSACDL works closely with the national leadership, and our strong presence and talented membership is valued by all. This is an important symbiosis; as Ben Franklin once said (in a slightly different, and more lethal, context) “we must all hang together, or we shall most assuredly all hang separately.�

NYSACDL President Aaron Mysliwiec and John Wallenstein pose under a projection of the Foundation seal

Left: Attorney General Eric Holder addresses the NACDL

Forensic psychological evaluations and expert witness testimony in criminal law Stephen Reich, Ph.D., J.D., Director, Psychologist and Lawyer 141 EAST 55TH STREET SUITE 2A NEW YORK, NY 10022 212.935.6133 www.forensicpsychologyexperts.com

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Privacy on the Line Continued from page 25

records are created when the recipient’s phone signals a nearby cell site so that the network can effectively and reliably complete the communication. Signals are also transmitted to the base station whenever the phone automatically checks for new emails or in order to maintain a constant Internet connection. Collectively, these records comprise the “historical” cell site data often sought by law enforcement for use in criminal investigations.4 When cell site location evidence is at issue, the defense should first request discovery to determine how the evidence was obtained. Law enforcement agencies request historical cell site location data in two principal ways. First, they can target records for a specific phone over a specified time period. Second, they may seek a “cell tower dump,” or the records of every cell phone that connected to a particular cell tower, or group of cell towers, over a specified time period. Both tools are routinely used by law enforcement. While individual requests tend to cover longer periods of time (weeks or a month), cell tower dumps often cover shorter periods of time, but, especially in densely populated areas, can capture location data for an enormous number of people.5 The Stored Communications Act and the Conflicting Case Law Discovery about cell site location evidence should also include a copy of the order or warrant that authorized the government to obtain the requested information. While the practices of prosecuting offices vary, and the choice of the investigative method will obviously depend on the facts of a particular case, prosecutors have often obtained cell site location evidence (whether a dump or

28

specific request) by means of a judicial order pursuant to 18 U.S.C. § 2703(d). Section 2703 is a provision of the Stored Communications Act (“SCA”),6 which governs the circumstances under which the government may access “a record or other information pertaining to a subscriber to or customer of ” certain cellular service providers. To obtain an order for location records under the SCA, the government need not demonstrate probable cause, as it would to obtain a warrant. Rather, to obtain stored records, the government need offer only “specific and articulable facts showing that there are reasonable grounds to believe that the . . . records . . . sought[] are relevant and material to an ongoing criminal investigation.”7 The purpose of the SCA, enacted in 1986 as part of the Electronic Communications Privacy Act,8 was to strengthen the privacy rights of users of the thennascent Internet. Because users’ private information is stored on the Internet remotely and by private companies, early online privacy advocates recognized the legal difficulties posed in applying “robust Fourth Amendment protections” to such information.9 The SCA attempted to remedy this by offering users “a range of statutory privacy rights against access to stored account information held by network service providers.”10 While the SCA was originally designed to fill constitutional privacy gaps for online users, recent litigation over the meaning of the law has focused overwhelmingly on its exceptions. For the criminal practitioner, the main exception is § 2703(d), allowing a governmental entity to obtain non-content “record[s] or other information” through the use of a court order, rather than a warrant.11 Until recently, the only two circuits to address the constitutionality of § 2703(d)

These records are historical in the sense that the records have already been “created, collected, and recorded by the cellular service provider at the time the court authorizes a request for that information.” See In re Application of the United States of America For An Order Authorizing Disclosure Of Location Information Of A Specified Wireless Telephone (Gauvey Opinion), 849 F. Supp. 2d 526, 535 n.4 (D. Md. 2011). In contrast, “prospective” location data includes “any location information generated after the date of the court order permitting the government to obtain that information.” Id; see ECPA Reform and the Revolution in Location Based Technologies and Services: Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 111th Cong. 81–85 (2010) (statement of The Honorable Stephen Wm. Smith, United States Magistrate Judge, Southern District of Texas). Because prospective data allows for ongoing government tracking of an individual’s movements (or, at least, her phone’s movements), requests for such data are considered more invasive and are not the subject of this article.

4

For additional background information on the frequency of cell tower dumps, see Brief for ACLU as Amici Curiae Supporting Respondents, In the Matter of the Application of the United States of America for an Order Pursuant to 18 U.S.C. §§ 2703(c) and 2703(d) directing AT&T, Sprint/Nextel, T-Mobile, Metro PCS and Verizon Wireless to Disclose Cell Tower Log Information (Francis Opinion), No. M-50, 2014 U.S. Dist. LEXIS 76155 (S.D.N.Y. May 30, 2014), available at https://www.aclu.org/ sites/default/files/assets/5.20.2014_aclu_tower_ dump_brief_to_m.j._francis.pdf ).

5

Stored Wire and Electronic Communications and Transactional Records Access, 18 U.S.C. §§ 270112 (1986).

6

7

Id. § 2703(c)(1), (d) (2009).

See Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848.

8

See Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1212 (2004).

9

10

Id.

11 Section 2703(c) describes the types of noncontent records the government may obtain, see 18 U.S.C. § 2703(c)(2), and, notably, provides that the government “is not required to provide notice to a subscriber or customer” when receiving records under this section, see id. § 2703(c)(3).

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The Third Circuit was the first federal court of appeals to rule on the sufficiency of a 2703(d) order as a means to obtain historical cell site information. See In the Matter of the Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government (Third Circuit Opinion), 620 F.3d 304 (3d Cir. 2010). While the Court there rejected the lower court’s finding that cell phones themselves serve as tracking devices and that a request for historical location information therefore required a showing of probable cause, it held that the “specific and articulable facts” standard in 18 U.S.C. § 2703 created only a floor. In any given case, a court, after balancing the government’s need with the privacy interests at stake, could require a greater showing of probable cause before granting the government access to those records. Id. at 319. In 2013, the Fifth Circuit held that compelling the production of historical cell site records on statutory grounds was not “per se unconstitutional.” See In re Application of U.S. for Historical Cell Site Data (“Fifth Circuit Opinion”), 724 F.3d 600, 615 (5th Cir. 2013). 12

13 Several district courts, both before and since the Third Circuit’s decision in 2010, have concluded that there is no expectation of privacy in cell site location data and the government can obtain it without a warrant. See United States v. Graham, 846 F. Supp. 2d 384, 402-03 (D. Md. 2012); United States v. Benford, No. 2:09 Crim. 86, 2010 WL 1266507 at *2-3 (N.D. Ind. Mar. 26, 2010); see also In re Applications of United States for Orders Pursuant to Title 18 U.S. Code Section 2703(d) (Stearns Opinion), 509 F. Supp. 2d 76, 80-81 (D. Mass. 2007); In re Application of U.S. for an Order for Disclosure of Telecomm. Records And Authorizing the Use of a Pen Register And Trap And Trace (Gorenstein Opinion), 405 F. Supp. 2d 435 (S.D.N.Y. 2005). Other courts have reached the opposite conclusion. In 2010, several magistrate judges, including Magistrate Judge Orenstein in the Eastern District of New York, held that to obtain historical cell site information for a prolonged period, the government was required under the Fourth Amendment to secure a warrant, based on a showing of probable cause. In the Matter of the Application of the United States of America for an Order Authorizing the Release of Historical CellSite Information (Orenstein Opinion), 736 F. Supp. 2d 578 (E.D.N.Y. 2010); see also In re Application of the United States of America for Historical Cell Site Data (Smith Opinion), 747 F. Supp. 2d 827, 83740 (S.D. Tex. 2010); In the Application of the United States of America For an Order: (1) Authorizing the Use of a Pen Register and Trap and Trace Device; (2) Authorizing Release of Subscriber and Other Information; and (3) Authorizing the Disclosure of LocationBased Services (Austin Opinion), 727 F. Supp. 2d 571, 583-84 (W. D. Tex. 2010). In 2011, Judge Garaufis of the Eastern District of New Yorkruled the same way in In re Application of the United States of America for an Order Authorizing the Release of Historical Cell-Site Information, 809 F. Supp. 2d 113 (E.D.N.Y. 2011); see also In re Application of United States of America for an Order Pursuant to 18 U.S.C. § 2703(d) (Owsley Opinion I), 2012 WL 3260215, at *2 (S.D. Tex. July 30, 2012).

A magistrate judge in Texas, citing the privacy concerns of third parties whose records were disclosed in a “dump,” held that cell site data “are protected pursuant to the Fourth Amendment from warrantless searches” and that a warrant was required. In the Matter of the Application of the United States of America for an Order Pursuant to 18 U.S.C. §2703(d) directing Providers to Provide Historical Cell Cite Locations Records (Owsley Opinion 2), 930 F. Supp. 2d 698 (S.D. Texas September 26, 2012). See also The Honorable Brian L. Owsley, The Fourth Amendment Implications of the government’s use of Cell Tower Dumps in its Electronic Surveillance, 16 U. Pa. J. Const. L. 1 (2013). On May 30, 2014, after substantial briefing from the ACLU and the government, Magistrate Judge Francis of the Southern District of New York found that cell site location data was not subject to a legitimate expectation of privacy. See Francis Opinion, No. M-50, 2014 U.S. Dist. LEXIS 76155 (S.D.N.Y. May 30, 2014). 14

15 United States v. Davis, No. 12-12928, 2014 WL 2599917, *8 (11th Cir. June 11, 2014).

16 United States v. Jones, 132 S. Ct. 945 (2012). While recognizing that Jones was not controlling, the Eleventh Circuit convincingly explained that cell phone location data is in most cases more private than car location data: “One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.” Davis, 2014 WL 2599917 at *8.

17

Katz v. United States, 389 U.S. 347, 361 (1967).

orders – the Third and the Fifth – had refused to impose a warrant requirement, although the Third Circuit ruled that a court could, in its discretion, require a warrant under § 2703(c) of the SCA in some cases.12 District court decisions reviewing requests for cell site records for particular phones are split,13 and the two magistrate judges considering the constitutionality of warrantless cell tower dumps have reached contrary results.14 But on June 11, 2014, the Eleventh Circuit Court of Appeals held in United States v. Davis, that “cell site information is within a subscriber’s reasonable expectation of privacy” and therefore the government was required to obtain a warrant based on probable cause before it could obtain cell site records.15 The Davis Court rooted its decision in the Supreme Court’s decision in United States v. Jones,16 which held that a defendant’s Fourth Amendment rights were violated when agents, without a warrant, attached a GPS transmitter to the defendant’s car and then tracked the car’s location for a month. The Eleventh Circuit’s decision, together with the Supreme Court’s recent opinions in Jones and Riley v. California, arm the advocate with powerful legal precedents to support a constitutional challenge to cell site location evidence obtained without a warrant. Moving to Suppress Cell Site Location Information as Obtained in Violation of the Fourth Amendment The linchpin for the Fourth Amendment analysis is the test enunciated by the Supreme Court in Katz v. United States,17 namely, whether there is an “actual and reasonable expectation of privacy” in the location information

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Privacy on the Line Continued from previous page transmitted by cell phone signals. Establishing that there is such a right requires overcoming two longstanding arguments. First, travel on public roadways traditionally has not been considered a search under the Fourth Amendment. In United States v. Knotts,18 the Supreme Court held that discrete journeys that could be monitored by physical surveillance do not become “private” simply because they are now the subject of electronic surveillance.19 Second, even if cell site location information could place individuals in more private settings, some courts have held that location data is not private because it has been voluntarily and knowingly communicated to a third party – the wireless service provider. Two Supreme Court cases are regularly cited to support this “third party disclosure doctrine”: Smith v. Maryland,20 which held that a customer had no reasonable expectation of privacy in dialed phone numbers conveyed to telephone company; and United States v. Miller,21 which held that the Fourth Amendment was inapplicable to bank transaction records conveyed to a third party. However, Courts have reexamined and modified these doctrines in response to the rise of requests for cell site location information, and advocates should use these new decisions to foreclose a court’s reliance on the older cases. Aggregate Location Data Is Qualitatively Different Although law enforcement has long had the ability to observe and monitor physical movements on public roads, courts have recognized that the prolonged and comprehensive nature of electronic surveillance changes the privacy analysis. While there may be no expectation of privacy when traveling from one place to another, citizens do have an

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expectation of privacy in the totality of their movements over a period of time. Indeed, Justice Alito’s concurring opinion in Jones, joined by three other Justices, concluded that the defendant’s reasonable expectations of privacy were violated by the “long-term monitoring of the movements of the vehicle he drove.”22 As the D.C. Court of Appeals set out in Maynard, the decision on review in Jones, a Fourth Amendment version of the “mosaic theory” – that the whole reveals more than the sum of the parts – explains why cumulative location information is private: Prolonged surveillance . . . can reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movement can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of a particular individuals or political groups – and not just one fact about a person, but all such facts.23

18

United States v. Knotts, 460 U.S. 276 (1983)

19

Id. at 283-85.

20

Smith v. Maryland, 442 U.S. 735 (1979)

21

United States v. Miller, 425 U.S. 435 (1976)

22

Jones at 958 (Alito, J., concurring in the result).

23 United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010). See also Orenstein Opinion, 736 F. Supp. 2d 578; Garaufis Opinion, 809 F. Supp. 2d 113.

24 The year after deciding Knotts, the Supreme Court held in United States v. Karo that “the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence. 468 U.S. 705, 714, 104 S. Ct. 3296, 3302 (1984).

The “mosaic theory” is not the only basis on which to distinguish the warrantless surveillance permitted by Knotts from historical cell site records. Cell site location information, unlike discrete physical surveillance, can identify an individual’s location in uniquely private

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25

Davis, 2014 WL 2599917 at *8.

As Judge Garaufis noted in his 2011 opinion, this rationale for deeming location data private may not be sufficient to overcome the third party disclosure doctrine. Garaufis Opinion, 809 F. Supp. 2d at 122, n.1 (“Consequently, if the third-party-disclosure doctrine applied to cell site-location records, then the fact that cell site-location records may show movements within the home would provide no additional basis for finding that the government’s collection of cell site-location data constitutes a Fourth Amendment search, regardless of the Supreme Court’s holding in Karo.”).

26

27

28

Id. at 117. Id.

See Francis Opinion, 2014 U.S. Dist. LEXIS 76155 at *18 (citing United States v. Madison, 2012 Dist. LEXIS 105527, 2012 WL 3095357, at *27 (S.D. Fla. July 30, 2012)) 29

30 See United States v. Graham, 846 F. Supp. 2d 384, 399 (D. Md. 2012).

31 To the extent cellular service providers notify their customers of the information they collect in privacy policies and other documentation, it has been found that most consumers do not read such policies. See M. Ryan Calo, Against Notice Skepticism in Privacy (and Elsewhere), 87 Notre Dame L. Rev. 1027, 1032 & n.34 (2012). Users generally expect that their cellular service providers’ privacy policies protect them from disclosure of their location and other information. See, e.g., Joseph Turrow et al., Research Report: Consumers Fundamentally Misunderstand the Online Advertising Marketplace, Samuelson Clinic and Annenberg Public Policy Center Report (Oct. 2007), www.law.berkeley.edu/ files/annenberg_samuelson_advertising.pdf.

Indeed, the Third Circuit, which ultimately found that a warrant was not required, did not accept the government’s claim that a caller voluntarily shares his location information in any meaningful way.[don’t see the start to this quote]” “Third Circuit Opinion”, 620 F.3d at 317. Especially when a cell phone user receives a call, or a text message, “he hasn’t voluntarily exposed anything at all.” Id. at 317-18. 32

settings –the home, for example–which have always been deemed protected from unreasonable searches.24 For this reason, the Eleventh Circuit found the mosaic theory unnecessary “to establish the invasion of privacy in the case of cell site location data.”25 It held that cell site location data for even a short period would be entitled to privacy protection because a cell phone, unlike the GPS device on a car at issue in Jones, can accompany its owner anywhere, including places not subject to physical surveillance. As the Court explained, “Even on a person’s first visit to a gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is private if it was not conducted in a public way. . . . When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts.”26 Indeed, in Knotts the Supreme Court anticipated that its ruling might not withstand the test of time, warning that if “dragnet type law enforcement practices” such as “twenty-four hour surveillance of any citizen . . . without judicial knowledge or supervision” should occur, “there will be time enough then to determine whether different constitutional principles may be applicable.”27 Tracking a person’s movements through cell site location data amounts to a form of continuous and invasive surveillance that could not have been accomplished in an analogue world, and should therefore trigger application of “different constitutional principles.”28 Rebutting the Third Party Disclosure Doctrine Cell site location evidence is also testing the limits of the third party disclosure doctrine. Several courts have relied upon the doctrine to conclude that

cell site data is not within a legitimate expectation of privacy. Citing it “common knowledge” that “communications companies regularly collect and maintain all types of non-content information regarding cell phone communications,”29 courts have concluded that since a caller “voluntarily transmit[s] signals to cellular towers in order for their calls to be connected,” there is no expectation of privacy and thus no Fourth Amendment protection for location data.30 Other courts have moved away from reflexively finding that a cell phone user “voluntarily” discloses his or her location information. For all the statistics purporting to show awareness that cell site data is collected and stored, there are reports and studies to the contrary.31 Beyond that, it is hard to maintain that any such disclosure is “voluntary” or “meaningful” for purposes of the Fourth Amendment, when a smartphone communicates with a cell tower even just to maintain access to the Internet or when it receives a text. Other than turning the phone on, the subscriber takes no action to trigger the disclosure and recording of these signals.32 But these arguments against application of the third-party disclosure doctrine may be short-lived. As the public becomes more sophisticated about cell phone technology and service providers’ practices, privacy arguments that hinge on a caller’s ignorance that location data is tracked and stored by service providers may not survive. Indeed, Magistrate Judge Orenstein of the Eastern District of New York noted in one of the earliest opinions imposing a warrant requirement: “[W]ith the growing availability and popularity of commercial applica-

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Privacy on the Line Continued from previous page tions that allow a mobile telephone user to affirmatively broadcast her location, I assume that most people are – or will soon be – aware of that fact.”33 Given that human communication is now conducted in technologically complex ways that involve a variety of third party service providers, it may well be necessary, as Justice Sotomayor suggested in Jones, “to reconsider the premise than an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”34

in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.35

Rather than asking a trial court to reexamine the doctrine, the advocate may choose to invoke the ample precedent supporting application of one of its exceptions. First, the Supreme Court has recognized that the public’s “awareness” may not always be the proper litmus test for whether there is a legitimate expectation of privacy. Katz, after all, did not root the right to privacy in what the public knew the contours of the privacy right to be, but rather on what they expected it to be. In Smith, the seminal third party disclosure decision, the Supreme Court cautioned that when subjective expectations of privacy have been conditioned to expect mass surveillance, the scope of the privacy right should be determined by a normative inquiry, i.e. by what the privacy right should be:

Another powerful exception to the thirdparty disclosure doctrine is the so-called “content exception,” namely, that the content of our communication remains private, even if handed over to a third party for delivery. Mail is voluntarily disclosed to the Post Office, yet as the Supreme Court established in Ex parte Jackson,37 sealed envelopes are entitled to Fourth Amendment protection. In United States v. Warshak, the Sixth Circuit applied the “content exception” to electronic communications.38 There, the Court held that the government could not compel production of the contents of a subscriber’s emails without first obtaining a warrant based on probable cause, even where the emails were delivered through or maintained by a commercial internet service provider.

For example, if the government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role

Revealing “a picture of [a person’s] life so intimate that he expects no one except perhaps his spouse to have it,”39cell site location data can be considered the equivalent to protected “content” – the sealed envelopes and the private emails protected in Ex Parte Jackson and Warshak. Because it aggregates the totality of an individual’s movements over time, cell site location evidence contains far more information than the dialed phone numbers at issue in Smith. It delivers a host of personal data and

32

What we expect our rights to be with respect to location data may thus be better measured by federal and state legislation relating to the scope of privacy protection, rather than what the public understands about cell site technology and service provider’s storage policies.36

33

Ornstein Opinion, 736 F. Supp. 2d at 592.

34

Jones, 132 S. Ct. at 957.

35

Smith, 442 U.S. at 741, n.5.

36

Orenstein Opinion, 736 F. Supp. 2d at 588-89.

37

Ex parte Jackson, 96 U.S. 727, 732-33 (1877).

38 United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010).

39

Orenstein Opinion, 736 F. Supp. 2d at 584.

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40

Riley, 134 S. Ct. 2473 (2014).

41 Specifically, the Supreme Court recognized, “Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.” Id. at 2490. In addition, the Supreme Court declined to apply the Smith third-party doctrine to permit police officers to search a call log without a warrant, noting that a call log typically contains “more than just phone numbers; they include any identifying information that an individual might add[.]” Id. at 2493. In the cell site location context, Smith should be similarly circumscribed: location data is, like the identifying information added by an individual in their contacts, “more than just phone numbers.”

42

Id. at 2494.

43

United States v. Leon, 468 U.S. 897 (1984).

44

Id. at 920-21.

45 United States v. Davis, No. 12-12928, 2014 WL 2599917, at *10.

46 Id. at *11 (applying good-faith exception where, “[a]t that time [of the government application for § 2703 order], there was no governing authority affecting the constitutionality of this application of the [SCA]”).

47

Third Circuit Opinion, 620 F.3d at 319.

information that should not be accessible to the government merely because a defendant used his cell phone. Finally, the Supreme Court’s decision in Riley v. California,40 decided at the end of the 2013 Term, can be used to support a Fourth Amendment right to privacy in cell site location data. Riley held that warrantless searches of cell phones could not be conducted as a search incident to arrest. But the Court also spoke generally about the vast quantity of sensitive and private data stored on a cell phone, including location data, which police officers should not be entitled to access without a warrant.41 Importantly, the Riley Court recognized the uniqueness of the cell phone in Fourth Amendment jurisprudence: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”42 Given what the cell phone has become – a portable office containing our most intimate affairs – Riley suggests that robust privacy protections should be in place and that it cannot be the rule that simply carrying a cell phone gives the government carte blanche to know your location at all times. The Good Faith Exception and Other Challenges Even if a court is willing to impose a warrant requirement for cell location data, advocates may still have to overcome the government’s invocation of the “good-faith exception” to the exclusionary rule set forth in United States v. Leon.43 In Leon, the Supreme Court held that “when an officer acting with objective good faith has obtained a search warrant from a judge . . . and acted within its scope,” the exclusionary rule should not be employed to “[p]

enaliz[e] the officer for the magistrate’s error.”44 In the Eleventh Circuit’s recent decision in Davis, the court applied Leon to § 2703 orders, finding that the officers “acted in good faith reliance” on the order and, therefore, “even if there was a defect in the issuance of the mandate, there is no foundation for the application of the exclusionary rule.”45 Given courts’ growing concern over the constitutionality of warrantless seizures of location data, the government may not be able to resort to Leon for long to excuse failures to obtain a warrant.46 Nevertheless, to prevent the result in Davis, advocates should promptly put the government and the Court on notice of an intent to challenge any effort to obtain cell site location data without a warrant. While cell site evidence may have been obtained long before indictment – perhaps usually the case with tower dumps –the government often seeks to obtain location evidence in the course of preparing for trial. Accordingly, putting the government and the court on notice of the issue early, perhaps in a discovery letter, may force the court to consider whether a warrant should be required rather than mechanistically authorizing acquisition of the records by means of a judicial order pursuant to § 2703(d). Moreover, even if efforts to suppress cell site location information fail, the advocate should still challenge the § 2703 warrant or order on its terms. Where the authorization for cell site data is pursuant to § 2703(d) order, the advocate should examine the order to determine whether there are in fact “specific and articulable facts” justifying the government’s request for the historical cell site evidence.47 Where

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Privacy on the Line Continued from previous page the Government obtained a warrant, be prepared to challenge the warrant as insufficiently particular. Especially in the context of cell tower dumps – which have the potential to reveal location data about thousands of individuals over a lengthy period of time – there are strong grounds for such a challenge. A cell tower dump encroaches into the privacy of potentially thousands of cell phone users who the government does not suspect of any wrongdoing.48 By design, cell tower dumps capture a great deal of non-pertinent information and may not even name an individual suspect or cell phone number. Essentially fishing expeditions for a suspect, they arguably constitute precisely the form of “general warrant” the Framers were intent on eradicating.49 Finally, defense attorneys should argue that no § 2703 order or warrant for a cell site dump is proper without a retention protocol for the cell site location information of innocent third parties,50 a notification to such parties that their location information was obtained in a cell site dump,51 and a certification by the government that other investigative procedures have been exhausted.52 Challenging the admissibility of cell site data on evidentiary grounds If the cell site evidence survives constitutional challenges, advocates may have other grounds to seek exclusion of the evidence. While the technology is constantly evolving, historical cell site data still only shows the location of the phone provider’s cell tower, not the location of the phone. This is because a given phone’s engagement with a tower does not show immediate proximity to that tower, only presence within that tower’s range. How precise the data is at identifying the caller’s location thus

34

depends on the scope of the tower’s coverage area. Because cell phone towers have overlapping coverage areas, especially in densely populated urban areas, experts have cautioned that unless other data is verified, cell site data does not even establish that the cell phone was closest to the site processing the call, as opposed to another cell site. This is because a multitude of “factors other than geographic location can affect signal strength.”53 John B. Minor, a communications expert who has worked with both prosecution and defense teams in criminal and civil cases across the country, explains that weather or even a minor maintenance problem like a loose wire on a cell site can downgrade signal strength or quality and force re-routing a phone’s signal to another, more distant cell phone tower. Beyond that, signals can get reflected off of water, refracted through windows or other large glass surfaces, or absorbed by an interfering landmass. To determine the “true coverage” of a cell phone tower at any given particular time, the defense should subpoena the service providers’ maintenance logs, detailing both planned and unplanned service interruptions, and demand production of the carrier’s “drive test” results at or close to the time of the relevant incident. “Drive test” data captures the actual signal strength at a particular time, thereby determining the site’s “true coverage” area. To the extent the cell site data has been obtained by means of a “tower dump,” Mr. Minor notes that service providers maintain additional data in the “Home Location Register (HLR) and Visitor Location Register (VLR),”which can identify particular phones passing through a carrier’s network, even if the device is idle or passive. The service providers’ drive test data, maintenance logs, and the HLR/ VLR logs should all be reviewed by an

48 One magistrate judge has found that an application for a cell site dump may be denied where the government has failed “to address the privacy rights for the Fourth Amendment concerns of . . . innocent subscribers whose information will be compromised as a result of the cell tower dump. . . .” Owsley Opinion 2, 930 F. Supp. 2d 698, 702 (S.D. Tex. 2012).

49 In re Search of Info. Associated with the Facebook Account Identified by Username Aaron.Alexis that is Stored at Premises Controlled by Facebook, Inc., 2013 WL 7856600, at *4 (D.D.C. Nov. 26, 2013).

50 The attorney can argue that cell site dump orders must require the government to return all irrelevant location records to the provider “as soon as practicable” after review. In re Search of Cellular Telephone Towers (Owsley Opinion 3), 945 F. Supp. 2d 769, 771 (S.D. Tex. 2013); see also United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1180 (9th Cir. 2010) (Kozinski, J., concurring) (“The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.”).

51 See Fed. R. Crim. P. 41(f )(1)(C); United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986) (failure to provide notice of a search “casts strong doubt on [a warrant’s] constitutional adequacy”); United States v. Villegas, 899 F.2d 1324, 1337 (2d Cir. 1990) (“[I]f a delay in notice is to be allowed, the court should nonetheless require the officers to give the appropriate person notice of the search within a reasonable time after the covert entry.”); Owsley Opinion 3, 945 F. Supp. 2d at 771.

52 Cf. Wire and Electronic Communications Interception and Interception of Oral Communications: Procedure for interception of wire, oral, or electronic communications, 18 U.S.C. § 2518(1) (c) (1998) (requiring government wiretap applications to explain “whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous”).

53 Aaron Blank, The Limitations and Admissibility of Using Historical Cellular Site Data to Track the Location of A Cellular Phone, 18 Rich. J. L. & Tech. 3, 16 (2011).

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While the FBI sometimes claims to conduct its own “drive test,” Mr. Minor warns that those tests are typically not contemporaneous with the relevant incident and not conducted with the same precision as those performed by the carriers themselves. 54

55 United States v. Valle, No. 12 Cr. 847 (PGG), 2014 WL 2980256 (S.D.N.Y. Jun. 30, 2014).

56 United States v. Yeley-Davis, 632 F.3d 673, 684 (10th Cir. 2011); Wilder v. Maryland, 991 A.2d 172, 199-200 (Md. Ct. Spec. App. 2010).

expert to determine whether and how they affect the strength of the government’s evidence.54 Indeed, depending on what the government is trying to establish with the cell site data, its lack of precision could be the basis for a motion to exclude the evidence on relevance grounds. While a caller’s location in a particular area may be relevant to establish the caller’s location in a large geographical area, the defense should be wary of prosecutorial claims that cell site data puts a defendant in a precise spot. For example, in the much publicized “cannibal cop” case in the Southern District of New York, the government sought to introduce cell site location evidence to support is claim that the defendant, Gilberto Valle, was on a particular block at a particular time and therefore conducting “surveillance” of his alleged victims.55 The defense argued that the evidence should be precluded because, among other things, given the tower’s broad coverage area, the evidence failed to show that Mr. Valle had been on the same block where his alleged victim lived. Rather, all the cell site data showed was that Mr. Valle could have been anywhere on the Upper East Side or Central Park. Given the many reasons that Mr. Valle, a New York City Police Officer, might have travelled to a particular Manhattan neighborhood, the defense argued that the evidence’s prejudicial effect outweighed its probative value. Before the judge ruled on the

motion, the government withdrew its attempt to introduce that evidence. Despite the many technical complications associated with cell site location data, the government often seeks to introduce cell site evidence by means of a paralegal or agent. But the defense should insist on the jury hearing the evidence from a communications expert. Many courts have concluded that “testimony concerning how cell phone towers operate constitute[s] expert testimony because it involve[s] specialized knowledge not readily accessible to any ordinary person.”56 Given the risk that cell site data can be misinterpreted or its significance exaggerated by the prosecution, cell site data is best introduced by way of an expert. For years, and largely without oversight from the courts, law enforcement agencies have used cell site location records to investigate and prosecute crimes. While these twenty-first century tracking mechanisms can be valuable tools for keeping us safe, the significant privacy intrusions they entail have been downplayed. However, recent court decisions now recognize that obtaining cell site evidence without a warrant raises serious questions about the privacy trade-off associated with using and possessing a cell phone. Those decisions give criminal defense advocates new tools to ensure that cell site evidence is obtained properly and used fairly. Those tools should be put to good use. A

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Cutting Edge CLE NYSACDL is noted for our innovative, interesting and informative CLE programs, which we present at various locations around the state each year. Seminar Registration Available at www.nysacdl.org Questions? Call the NYSACDL office at 518-443-2000 or email jlvanort@nysacdl.org. Fall Seminar Calendar (Topics, Faculty and Sponsors as of 8/15/14) Convictions of the Innocent

Superstar Trial Seminar

Friday, September 19, 2014 • 9am-4:45pm (Lunch Included) New York Law School, New York 6.5 Skills Credits Featured Faculty & Topics An Overview of Wrongful Convictions and Cultural Causes – Ronald L. Kuby, Esq. The Prosecution’s Perspective – William Darrow, Esq., New York County District Attorney’s Office Ronald Sullivan, Jr., Esq., Conviction Review Unit, Brooklyn District Attorney’s Office Handling Prosecutorial Misconduct – Joel Rudin, Esq. The 440 Motion – Claudia Trupp, Esq., Center for Appellate Litigation Understanding Cases of False Confessions – Dr. Saul Kassin, Professor of Psychology, John Jay College of Criminal Justice Lead Sponsor Find Law, Thomson Reuters

Friday, November 7, 2014 United States Courthouse, Buffalo 7.5 Skills Credits Featured Faculty Reid H. Weingarten, Steptoe & Johnson LLP, Washington, DC & New York City Brian T. Kelly, Esq., Nixon Peabody LLP, Boston Lisa Zornberg, Esq., Lankler Siffert & Wohl LLP, New York City Robert Wells, Esq., Syracuse, NYSACDL Vice President James P. Harrington, Harrington & Mahoney, Buffalo, NYSACDL Past President Homicide Acquittals in US v. Martinez (WDNY) (07/11/14) – Panel Discussion Featuring: Andrew C. LoTempio, Esq. Angelo Musitano, Esq. Premium Lead Sponsors Dopkins & Company, LLP LexisNexis

Cross-Examination – A Day of Study and Practice: Effectively Utilizing Our Most Dangerous Tool Saturday, October 18, 2014 Onondaga Community College, Syracuse Join us at our annual Fall Syracuse CLE for a day focused on this most important trial skill. The day will include a plenary session with instruction, led by NYSACDL Vice-President Robert Wells, Esq. and Past-President Craig Schlanger, Esq., among others. Following, faculty and attendees will break into small groups to craft and present cross-examinations on a hypothetical case.

Important Topics for Federal Practice Friday, October 24, 2014 – 9am-5pm (Lunch Included) New York Law School, New York 6 Skills Credits, 1 Ethics Credit Featured Faculty & Topics Cooperation, Proffers & Reverse Proffers – Nicolas Bourtin, Esq., Sullivan & Cromwell LLP Deferred Prosecution Agreements – Peggy Cross-Goldenberg, Esq., Federal Defenders of New York Trends in Federal Criminal Cases – John D. Cline, Esq. Federal Sentencing Topics – Anthony S. Barkow, Esq., Jenner & Block Katya Jestin, Esq., Jenner & Block Marjorie J. Peerce, Esq., Ballard Spahr Stillman & Friedman LLP Important Ethical Issues for Federal Practice – Michael Ross, Esq. Lead Sponsor Find Law, Thomson Reuters

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CLE

Hudson Valley Seminar

Friday, November 14, 2014 Poughkeepsie Grand Hotel, Poughkeepsie Featured Faculty Paul Shechtman, Esq., Zuckerman Spaeder LLP Steven B. Epstein, Esq., Barket, Marion, Epstein and Kearon, LLP

Weapons for the Firefight Friday, December 5, 2014 St. Francis College, Brooklyn Featured Faculty Benjamin Brafman, Esq., Brafman & Associates, P.C. Andre Vitale, Esq., Monore County Public Defender’s Office, NYSACDL Vice President John Schoeffel, Esq. Peter Mitchell, Esq.

Long Island Seminar With Special Focus on Brady Issues January 5, 2015 Touro Law School, Central Islip Co-Sponsored by NYSACDL, Suffolk County Bar Association & Suffolk County Assigned Counsel Plan

If you have an idea for a cle program, or wish to participate on the cle committee, please contact any of the cle chairs : Bruce Barket, Jim Grable, Tim Hoover, Arnold Levine or Andre Vitale. Email addresses are included in the committee listing on page 43 of this issue. We welcome your input! Dates are subject to change, and specific topics are flexible.

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


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Where To Self-Report A White Collar Offense

By Marjorie J. Peerce and Nathaniel Z. Marmur

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magine the CFO of a large public company seeks your advice, presenting the following facts: He has been participating in a revenue recognition scheme intended to “smooth” the company’s earnings over several years. He engaged in the scheme at the urging of the CEO of the company, and created false documents such as invoices and contracts. The client did not profit from the crime, his income is not dependent on the company’s stock, and his bonus is not tied to the company’s earnings. The CEO, however, exercised options, resulting in $100,000 in illicit gains through stock sales. Finally, the client tells you that he has been using his company’s credit card for personal expenses totaling $60,000.

Marjorie J. Peerce and Nathaniel Z. Marmur are litigation partners at Ballard Spahr Stillman & Friedman LLP in New York. Ms. Peerce focuses on federal and state criminal matters, principally in white collar criminal defense, regulatory matters, and complex civil litigation, and Mr. Marmur devotes his practice to federal and state criminal cases, complex civil litigation, and appeals.

Adapted from an article submitted to the 2014 ABA National Institute on White Collar Crime.

Certain employees have begun to suspect that something is amiss, and the scheme is poised to unravel. You are unaware of any prosecutorial knowledge of the problem, but you believe it inevitable that criminal charges will result. You advise the client that unless he intends to try the case his best hope is to “get ahead” of the problem by self-reporting. The threshold question, then, becomes, to whom? To the federal authorities, or to the state? This decision can have serious implications for your client’s ultimate sentence. Among other things, you will want to consider the values and costs of cooperation in each jurisdiction; the potential application of the sentencing guidelines and the state sentencing scheme as well

as post-sentencing considerations; the relationship between the competing jurisdictions, and the state’s double jeopardy law (does it bar prosecution following a federal case?). This article highlights these and other considerations to help you make this important decision. You recognize, based on the above facts, that your client has potentially committed federal crimes, such as mail and wire fraud and securities fraud. Using New York as an example, he has also likely committed state crimes such as violations of the Martin Act (securities fraud), larceny, scheme to defraud, and creating and maintaining false business records.

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Self-Reporting Continued from previous page Let’s begin with cooperation. Assuming your client is willing to help the authorities, where will his information and assistance yield the greatest benefit at the time of sentencing? Under the policies of the U.S. Attorneys’ Offices in the Southern and Eastern Districts of New York (and likely in most other federal jurisdictions), a cooperating defendant is generally required to admit to all criminal wrongdoing and any knowledge of wrongdoing by others,

To provide your client competent advice, you should be familiar with the policies of the respective offices in your jurisdiction. For example, will your client have to admit additional wrongdoing in only one of the jurisdictions, and will that carry significant sentencing consequences? Is there information about others (say a relative) that he wishes not to disclose, and will he be able to withhold that information in one jurisdiction but not another? Will only one of the jurisdic-

State or federal jurisdiction?

and to plead guilty to the top possible charge. After the cooperation is complete, the government writes a Section 5K1.1 letter, allowing the judge to depart below the applicable sentencing guidelines range. In New York State, and in particular in New York County, where many white collar prosecutions take place, a cooperating defendant is generally required to plead to the top count. If the cooperation is successful, he is permitted to withdraw the plea to the top count and enter a plea to a lower felony or a misdemeanor. New policies in the New York County District Attorney’s Office are beginning to mirror the policies of the local U.S. Attorney’s Offices, requiring full disclosure of the client’s wrongdoing and any wrongdoing by others.1

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tions require him to file amended tax returns as a condition of cooperation? How do the federal judges in your districts sentence cooperators? Do they only depart a set amount of levels, no matter how valuable the cooperation was, or will they consider a significant reduction? Is there flexibility in sentencing cooperators A related consideration is the prosecutor’s policy regarding proffers, particularly if you are unsure whether your client’s information will result in a cooperation agreement. Although most “Queen for a Day” agreements begin with the general promise that your client’s statements says cannot be used against him in the direct case, the exceptions to that rule vary among jurisdictions. The current Southern and Eastern District proffer agreements, for example, allows the government to use a defendant’s statement for leads, for impeachment if he takes the stand, and even to rebut factual assertions (Eastern) or arguments (Southern) made by counsel at trial or testimony by defense witnesses. If you are still considering trying the case, then think about whether bringing the client to a particular jurisdiction might, as a practical matter, limit that option.

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in your state? These are all considerations at this stage. Another critical factor is the difference between the federal and state sentencing schemes. Loss (or gain) is the key driver for sentencing the federal white collar defendant. In this case, the government likely will claim that the gain of $100,000 from the CEO’s stock sales and the $60,000 from the credit card theft should be counted as the loss for purposes of calculating your client’s guidelines range. You will need to consider whether the government will insist on counting the drop in market capitalization (i.e., harm to the shareholders) that you believe will occur when the fraud is revealed, which you estimate will be about $100 million. If you think so (based on your knowledge of office policy toward relevant conduct), that factor alone could drive you seek a state prosecution. The dispute over the loss amount is at the beginning of the guidelines conundrum, but is of significant importance because of the outsized role loss plays in sentencing. Other guideline factors to consider include potential role adjustment, the number of victims, and enhancements relating to fraud involving a public company. That your client did not personally gain from the scheme is something the court should consider in assessing whether the loss overstates the seriousness of the offense. After the range and departures and variances have been determined, the court has near absolute discretion to impose any sentence it deems appropriate, considering the nature and circumstances of the offense and the history and characteristics of the defendant (absent mandatory minimums not addressed with a cooperation agreement).

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Again, knowing your district’s practice is important. Can you estimate the value a judge will give you for self-reporting? Do the judges in your district exercise their broad authority to impose a below-guidelines sentence, or do they adhere tightly to the range?

little difference on the federal side, because intended loss is currently part of the guidelines scheme for loss purposes. But in New York, an attempt generally lowers the offense level by one grade, for example, making a Class B felony a Class C felony.

may get a promise from the prosecutor to support a parole application. The federal system, by contrast, gives much more discretion to the judge at the sentencing phase, but affords less flexibility about release once a sentence is imposed.

Next, what is your client’s potential state sentence? In New York, the seriousness of the offense, and therefore the sentencing range, is often based on the value of the money or property involved but more rigidly than the guidelines. For example (assuming a nonviolent first offense), a larceny where the property value exceeds $3,000 is a Class D felony, which carries a possible sentence of 2 1/3 to 7 years. A larceny where the value of the property exceeds $50,000 is a Class C felony with a possible sentence of 5 to 15 years. When the loss exceeds $1 million, it is a Class B felony with a possible sentence of 8 1/3 to 25 years. Defendants can receive probationary sentences for Class C, D, and E felonies, but a minimum sentence on a Class B felony is 1-3 years’ incarceration.

Another key difference is that sentencing in the federal system is subject to great discretion by the judge, guided by—but generally not bound by—any plea agreement. Your state may, like New York, have a practice of entering plea agreements that provide for agreed-upon sentences, whereby the defendant can withdraw his plea if the court will not impose the sentence. This certainly may be of great value to your client.

It may also be worth considering where will your client serve his sentence. Many New York State prisons are hours away from New York City and do not have

False business records offenses are low-level (either a misdemeanor or an E felony), as are Martin Act violations. This last fact may be surprising: in New York, a securities fraud, no matter how big, is at most an E felony punishable by a maximum of 1 1/3 to 4 years in prison. The same is true of a scheme to defraud. So, depending on your state, it is possible that your client—who engaged in a large securities fraud, but did not personally benefit or direct significant proceeds to another—would do better in state court. Another consideration is whether the criminal plan succeeded. This makes

Moreover, unlike the federal system, where your client would be sentenced to a set amount of months, subject only to limited reduction for “good time” or perhaps the completion of a drug or alcohol treatment program, white collar defendants in New York are sentenced to indeterminate terms of imprisonment for a nonviolent offense, with a range of years. The ultimate time served depends largely on the determination of a parole board. This may also influence your advice. Is your client likely to engage in good behavior and get early parole? Will he qualify for an early release program such as work release or boot camp? State policies, some official and some not, may effectively prevent him from taking advantage of these benefits. A “highprofile” defendant may be less likely to get parole on his first attempt. On the other hand, a cooperating defendant

“camp” type facilities that the federal system has for low-risk offenders. You will need to assess whether your client will qualify for a camp and whether the judge is likely to recommend the facility you request. It is also possible that the state’s double jeopardy law may affect your decision. If the state has codified an exception to the dual sovereignty doctrine, as New York has, then it may not be able to prosecute your client after a federal prosecution for the same offense. The converse is not true: the federal government may bring charges notwithstanding a prior state action (although the Petite policy in the U.S. Department of Justice manual provides you some discretionary relief ). Though somewhat Continued on next page

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Self-Reporting

Thirteen Not Unlucky

Continued from previous page

Continued from page 36

rare (particularly in the cooperation contexts), if you believe that the federal government has sufficient interest in the matter that it will insist on its proverbial pound of flesh from your client even after a state prosecution, you may well consider approaching the federal government first. Likewise, if the state will have a worse take on your client—or you believe a state sentence may be harsher there— you may want to take the case federally, particularly if that will “double jeopardy out” the state. On the other hand, if the state sentence could be more lenient, and you do not fear a subsequent federal case, going to the state could ultimately be in your client’s interest. All of this should be viewed through the lens of the relationship between your state and federal prosecutors so you can assess the likelihood of both seeking to prosecute. Two other quick considerations. First, a defendant is “convicted” upon plea in New York, but upon sentence in federal court. This may make a difference if a

professional license requires reporting or if rights (e.g., indemnification) may be terminated or obligations triggered by the formality of a conviction. You will need to check each licensing authorities rules as well as whether they have issued guidance about when a federal conviction needs to be reported. Second, for non-citizens, immigration consequences should be considered. The federal government may have more sway in advocating for a visa or exemption for a cooperator. On the other hand, the state may be more willing to allow a cooperator to plead to a particular misdemeanor, which may make all the difference when it comes to keeping a defendant in the country, depending on the offense of conviction The level at which a case is handled, whether it be in state or federal court, can make a great difference to a defendant. Knowing the differences between those jurisdictions is critical to rendering effective counsel. A

They can’t change the law, they can’t change the facts, and they can’t change the subject. – David Boies

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the Department of Corrections and the Prosecutor would eventually figure it out, and told Anderson to wait for the inevitable order to surrender. That day never came. From 2000 until 2013, Mike Anderson lived a completely normal life. He married, had a child, divorced, re-married, cared for a stepson and had two more children with his wife. He learned a trade as a master carpenter, worked as a union carpenter, built a house in St. Louis with his own hands, incorporated and ran his own licensed construction business, coached youth football, and volunteered at his church. He never left St. Louis, updated his driver’s license, and even received two traffic tickets in thirteen years – his only contact with the criminal justice system. He never attempted to change his identity or hide from the public, filing for business licenses, corporations, registering vehicles in his name, and paying state, federal, and local taxes. Throughout the entire time, the Department of Corrections had him listed as a prisoner, until July, 2013, after a computer alerted that it was time to release Anderson. This was when someone realized that there was no body to match the name in the computer system. On July 25, 2013, eight U.S. Marshals executed an arrest warrant, issued days earlier, forcibly entered the Anderson home while he was getting his two-year old ready for the day, and told him that he now owed the State of Missouri thirteen years – starting that day. His wife was out of state on a business trip, and had no idea of his past. She came home immediately to find herself alone with four children, a mortgage, and her partner whisked away to prison to begin serving a thirteen-year sentence.

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Thirteen Not Unlucky Continued from previous page The Anderson family could not find an attorney in Missouri willing to touch the case. One attorney took $3500 from the family and then told them there was nothing that could be done, and refused to refund them anything. They finally contacted my then-firm in Florida. I got myself admitted pro hac in Missouri, and then filed a petition for a writ of habeas corpus, arguing that the State had waived jurisdiction by failing to execute on the judgment and sentence, Due Process forbade execution of a judgment and sentence thirteen years later, commonlaw laches applied, and it would be cruel and unusual punishment to require this man to serve his sentence thirteen years after the fact, after all his accomplishments, which would effectively make this a twenty-six year sentence. The case was filed in Mississippi County, Missouri - a courthouse with no metal detectors, two judges for the entire county, in a small town three hours south of St. Louis, because Missouri venue rules require habeas petitions to be in the county where the body is located. The last time this situation had apparently occurred in Missouri was 1912 in a reported case, in which the habeas petitioner had won. There was caselaw dealing with this situation around the country, with mixed results. Meanwhile, a reporter, Jessica Lussenhop, broke the story in The Riverfront Times, a small local paper. She then convinced National Public Radio to feature the story on their program, This American Life. She even tracked down the victim of the robbery, who agreed

to be interviewed. The victim went on record as saying that at first he was angry when he found out that Anderson had not served his sentence, but after he found out the type of life Anderson had led, he was firmly convinced that incarcerating him would be unjust, and publicly stated that the State of Missouri should release him to his family. After the program aired, hundreds of people around the country bombarded me with emails of support and sympathy. One person suggested I start a petition on Change.org. I took their advice and started a petition, and it went viral on Facebook and social media. Before I knew it, we had 10,000 supporters. The Missouri Attorney General responded to my habeas petition, arguing against all of my points, but argued to the court that I should file an action for declaratory judgment seeking credit for time served while Anderson was out on bond. They even cited caselaw that supported the proposition that he could receive credit for time served while he was mistakenly out on bond. Major media outlets picked up the story and it went viral on mass media. My client was interviewed at the prison, his wife was interviewed and I was interviewed. My objective was to get the word out and get public support on our side. It worked. Our change.org petition soared to 35,000+ supporters. Viewers and newspapers readers wrote letters to the editor. People took it upon themselves to send letters of support directly to the Governor, the Attorney General, and to the court.

I took the Attorney General’s suggestion, filed an action for declaratory judgment, and simultaneously filed a petition for executive clemency with Governor Jay Nixon. All bases were covered. The court ordered the attorneys to attend a hearing on May 5, 2014. My partner and I flew to St. Louis, picked up my client’s wife, and met the rest of the family in Charleston, Missouri to attend court. The media presence was overwhelming. It took only ten minutes for the court to rule in our favor. After hearing argument, the Honorable T. Lynn Brown addressed my client directly, telling him he believed he was a changed man, that he had done the honorable thing for the past 13 years, and that further incarceration would serve no legitimate purpose whatsoever. He credited Anderson for 13 years of jail time, ruling that the sentence was satisfied in full. In a stroke of luck, officials from the Missouri Department of Corrections were at the courthouse, and my client was immediately released into the arms of his wife, parents, and extended family. On Monday morning, May 5, 2014, Cornealious Michael Anderson, III awoke in a prison cell with twelve years and two months left to serve on his sentence. On Monday night, Cornealious Michael Anderson, III was in a hotel room in New York City with his wife and four children. Twenty-four hours after his release from prison and discharge from his sentence, Cornealious Michael Anderson, III was at the top of the Empire State Building, marveling at the New York City skyline (which none of them had ever seen before), and tasting freedom. A

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Brief Examinations

Briefly examined by Dick Barbuto

Savannah Law by William Eleazar, (Elex Publishers 2009)

This novel will bring us all back to law school. It has third year students doing clinical work in a criminal law program, a first year haughty, know it all, the professor you loved to hate, faculty meetings full of the nonsense that only faculty members think is important and a benevolent dean of the school. It also has two stalkers, one being the law professor, and a real trial where one of the third year law students winds up trying a felony case against one of the best known criminal defense lawyers in the country. Did I mention a judge with black robe disease? Want to guess who emerges victorious?

The reviewer of this book, Dick Barbuto, is a past president of NYSACDL. He has practiced criminal law in multiple jurisdictions, both state and federal.

Savannah Law is a fun read but keep in mind that it is a novel. I had trouble with the third year law student trying felony cases. The characters are well drawn, the plot is only slightly over the top and some of the story lines are left unfinished. BUT, never fear, there is a sequel. The book is not going to make anyone forget Scott Turow’s 1L but it is a good beach/airport read. It also has some good descriptions of Savannah, a city that everyone should visit.

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Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


Freedom to Annoy Continued from page 36 Justice Carol Berkman also deserves credit for refusing the defense request for a limiting instruction that specifically would have eliminated the word “annoy,” in accordance with prior case law. Justice Berkman not only adopted the unconstitutional application of the law; she did so with her customary gusto. The real question is not how did the law die; but rather, how did it survive for so long? The answer is that it was just so damn useful to the cops, prosecutors, and courts. People are forever voicing their ire at this or at that. The internet has dramatically increased the volume and scope of their critiques, and decreased the mental filtering time between composition and “send.” Demanding citizens battle civil servants, landlords quarrel with tenants, customers complain about service providers, and the like. When a “victim” called the

police or the DA, an annoying communicant would be arrested; then an order of protection would automatically be issued against the objects of his or her ire. Under threat of contempt, the defendant was forced to cease his communications, thereby putting distance between the two warring parties, albeit at the price of freedom of speech. In the fullness of time, after the defendant has shown that he or she has moved on, the charges would be reduced or the case dismissed.

the very bursts of anger that led to their status as “ex.” The pending prosecution and the restraining order provided potent deterrence to future communications; by ending the war of words, the law was useful in preventing escalation into more serious conduct. As I was congratulating myself after reading aloud the New York Times article about my victory, my wife said “I hope no woman gets killed because of what you did.” Me too. A

The most persistent use of this unconstitutional law and process has been to help women convince ex-boyfriends and ex-husbands about the “ex” part of the relationship. DA’s around the State file thousands of cases annually against former spouses or partners who insist on “winning her back” with endless unwanted entreaties, often punctuated by

YOUMAN, MADEO & FASANO, LLP ATTORNEYS AND COUNSELLORS AT LAW 299 BROADWAY SUITE 810 NEW YORK, NY 10007 TEL: 212-791-7791 - 212-594-6030

Immigration Consultants to the Criminal BAR

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers

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nysacdl Membership

The Largest Criminal Defense Bar Association in New York State

PROMOTING EXCELLENCE IN CRIMINAL DEFENSE • OUR MEMBERSHIP IS OUR GREATEST STRENGTH President

Aaron Mysliwiec, Manhattan

President-elect

Wayne C. Bodden, Brooklyn

First Vice President Andrew Kossover, New Paltz

Vice Presidents

Danielle Eaddy, Brooklyn Michael Shapiro, Manhattan Andre Allen Vitale, Rochester John S. Wallenstein, Garden City Robert G. Wells, Syracuse

Secretary

Arnold J. Levine, Manhattan

Treasurer

Lori Cohen, Manhattan

Executive Director Jennifer Ciulla Van Ort

President’s Club Members

Life Members

Daniel Arshack Myron Beldock Peter E. Brill Anthony J. Colleluori Terrence M. Connors Anthony Cueto Gerard M. Damiani Telesforo Del Valle, Jr. Joshua L. Dratel Herald Price Fahringer Russell M. Gioiella Lawrence S. Goldman E. Stewart Jones Kathryn M. Kase Ray Kelly Terence L. Kindlon Gerald B. Lefcourt David L. Lewis Thomas F. Liotti Florian Miedel Aaron Mysliwiec Brian Joseph Neary Thomas J. O’Hern Paul D. Petrus Frank Policelli Murray Richman Todd J.W. Wisner

Michael Dowd Kevin D. O’Connell Benjamin Ostrer Richard D. Willstatter

Sustaining Members F. Stanton Ackerman James A. Baker Barry Berke Benjamin Brafman William M. Brodsky Brian DeSesa Gerald DiChiara Peter A. Dumas George Galgano Mario Gallucci Michael A. Garzo, Jr. David I. Goldstein George Goltzer James P. Harrington Daniel J. Henry, Jr. Jack Hoffinger John Ingrassia

Keith Lavallee James E. Long Greg D. Lubow Mark Mahoney Gary P. Naftalis Marcos A. Pagan III Steven K. Patterson Joel B. Rudin Anastasios Sarikas Scott B. Tulman John S. Wallenstein Harvey Weinberg James W. Winslow

NYSACDL Welcomes Our New Members (As Of august 11, 2014) Bronx County Shilpy Goswami

Arielle Simon Marianne Yang

California

Michigan

John D. Cline

Richard Convertino

Erie County

Nassau County

Onondaga County

Leah Nowotarski Nicholas Romano

Peter Coleman Theodore Hastings

Robert A. Coville Rosemary Lepaine John R. McQuillan Jeremiah J. Ouimette Dan Petrone John Sharon Lee C. Stoddard Joseph M. Wentland

Kings County

New York County

Orange County

Ibrahim Abohamra Susannah Karlsson Susan Mitchell Jillian Modzeleski Guido Moreira Sydney Peck Guy Raimondi Brendan Rigby

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Justin Auslaender Robert Caliendo Michael Delakas James Koenig Allison Lewis Ritu Rana Kelly Sharkey Steven Wershaw

Joshua Horowitz Nicholas Patullo

Oregon

Jason Mohabir

Queens County Kenneth Cullen

Reynaldo Cusicanqui Michelle Fields Mahmoud Rabah Richard Torres

Richmond County Matthew Blum

Suffolk County Len Audaer David Bernstein

Westchester County Vincent deMarte

a complete membership list is available on the website www.nysacdl.org/member-directory/

Atticus | Volume 26 Number 1 | Spring 2014 | New York State Association of Criminal Defense Lawyers


Join the Committee

NYSACDL standing committees are chaired by members in good standing who are appointed by the President. Committee membership is a rewarding opportunity for members to network with colleagues throughout the state and to explore various issues in depth. Members are invited to join committees to further the important work of our association. If you are interested in joining a standing committee (listed below), please contact the committee chair or the Executive Director’s office: jlvanort@nysacdl.org, 518-443-2000, for more information. Amicus Curiae Committee

Chairs: Marc Fernich (maf@fernichlaw.com), Brendan White (brendan@whiwhi.com) Members: Timothy Murphy, Richard Willstatter

Annual Dinner Committee

Chair: Wayne Bodden (wcb40@aol.com) Members: Lori Cohen, Danielle Eaddy, Andrew Kossover, Aaron Mysliwiec, Benjamin Ostrer, John Wallenstein

Continuing Legal Education Committee

Chairs: Bruce Barket (bbarket@barketmarion.com), James Grable (jwg@connors-vilardo.com), Timothy Hoover (THoover@ phillipslytle.com), Arnold Levine (NYCcrimlaw@aol.com), Andre Vitale (AVitale@monroecounty.gov) Members: Michael Baker, Wayne Bodden, Danielle Eaddy, Andrew Kossover, Brian Melber, Benjamin Ostrer, Lisa Peebles, Michael Shapiro, John Wallenstein, Robert Wells

Contracts Committee Chair: Andrew Kossover Member: David Goldstein

Indigent Defense Committee

Chair: Andre Vitale (AVitale@monroecounty.gov) Members: Joshua Saunders, Susan Walsh

Finance and Planning Committee Chair: Lori Cohen (locohen@aol.com) Members: Aaron Mysliwiec, Kevin O’Connell, Benjamin Ostrer, Michael Shapiro

Lawyers Strike Force Assistance Committee

Chair: Aaron Mysliwiec (am@fmamlaw.com) Members: Marc Fernich, Timothy Hoover, Richard Willstatter

Legislative Committee

Chairs: Andrew Kossover (ak@kossoverlaw.com), Lisa Schreibersdorf (lschreib@bds.org) Members: Bruce Barket, Wayne Bodden, Jonathan Fishbein, Greg Lubow, Aaron Mysliwiec, Kevin O’Connell, Alan Rosenthal, Joshua Saunders, Andre Vitale, Nikki Zeichner

Letters to the Editor Committee

Chair: Aaron Mysliwiec (am@fmamlaw.com) Members: Alice Fontier, Andrew Kossover, Marshall Mintz, Joshua Saunders, Lisa Schreisbersdorf, Susan Walsh

Membership

Chairs: Greg Lubow (gdlubow@gmail.com), Aaron Mysliwiec (am@fmamlaw.com), Robert Wells (dfndr@hotmail.com) Members: Bruce Barket, Mitch Dinnerstein, Peter Dumas, David Goldstein, James Grable, Timothy Hoover, Andre Vitale

Prosecutorial and Judicial Complaint Committee

Chair: Michael Shapiro (MShapiro@clm.com) Members: Daniel Arshack, Danielle Eaddy, Alice Fontier, Lawrence Goldman, Florian Miedel, Thomas O’Hearn, Benjamin Ostrer, Donald Rehkopf

Publications Committee

Chairs: Benjamin Ostrer (ostrerben@aol.com), John Wallenstein (jswallensteinesq@aol.com) Members: Richard Barbuto, Jessica Horani, Lisa Peebles

White Collar Crime Committee

Chairs: Joshua Dratel (jdratel@joshuadratel.com), Aaron Mysliwiec (am@fmamlaw.com) Members: Robert Caliendo, James Grable, Timothy Hoover, Arnold Levine, Brian Melber, Kenneth Moynihan, Michael Shapiro, Robert Wells, Richard Willstatter

The trial lawyer does what Socrates was executed for: making the worse argument appear the stronger. — Judge Irving Kaufman

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers

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Nysacdl

New York State Association of Criminal Defense Lawyers

Membership Application

Our Mission

Please print or type

Name: ______________________________________________________

n

To promote study and research in the field of criminal defense law and the related arts.

n

To disseminate and advance by lectures, seminars, and publications the knowledge of the law relating to criminal defense practice.

n

To promote the proper administration of criminal justice.

n

To foster, maintain and encourage the integrity, independence and expertise of the defense lawyer in criminal cases.

n

To foster periodic meetings of defense lawyers and to provide a forum for the exchange of information regarding the administration of criminal justice, and thereby

n

To protect individual rights and improve the criminal law, its practices and procedures.

Firm Name:__________________________________________________ Address:____________________________________________________ City/State/Zip: ____________________ County: _____________________ Phone:__________________________ Fax:________________________ Email:_______________________________________________________ Website:_____________________________________________________ Bar Admission State:_______________ Year Admitted:________________

Please circle membership type *All memberships include $15 donation to the NYSACDL Foundation, Inc. o Please check here to remove.

Lifetime Member

$2500

President’s Club

$515

Sustaining Member

$315

Regular Member

$215

Regular Member

$140

Associate Member

$190

Income over $50,000 In practice over 5 years Income under $50,000 In practice less than 5 years Full-time public defender Non-lawyer

Retired Attorney

$90

Law Student/Recent Law School Alumni (less than one year since completion) $50 School: __________________________

Graduation date: __________________

Membership dues can be paid by check or charged to American Express, MasterCard, or Visa. Please make your check payable to NYSACDL and send it to: NYSACDL Office 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665

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Please charge to my credit card. Credit card #: ____________________________________________ Exp. date: _______________________________________________ Signature of applicant: _____________________________________ Date:___________________________________________________

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers


nysacdl Member Benefits Member Biographical information in our Member Profile – Members can now include brief biographical information (positions held, bar admissions, schools attended, honors or publications) in our online searchable Membership Directory. This directory is available to the general public and is referenced by those seeking counsel and assistance throughout the state. NYSACDL LISTSERV – NYSACDL offers both a Federal and State Practice Listserv which provide members with invaluable forums in which to pose questions, seek information, exchange ideas and share resources with members statewide. CLE SEMINARS – NYSACDL is an Approved Provider accredited by the New York State CLE board. We sponsor numerous CLE seminars during the year throughout the state at reduced rates for members. Practical nuts and bolts topics alongside cutting edge issues make our CLE programs invaluable to new members as well as those with years of trial experience. Our speakers are among the most respected and experienced criminal defense attorneys and leading experts in the country. NCDC SCHOLARSHIP PROGRAM – NYSACDL members in good standing are eligible to apply for the Twelve Angry Men scholarship to the annual National Criminal Defense College in Macon, Georgia.

to the criminal justice system thereby providing a respected voice of the defense bar in Albany. Members have an avenue to become involved and stay informed. Our members were involved in the recent reforms of the Rockefeller Drug Laws. AMICUS BRIEFS – NYSACDL provides amicus assistance on issues of particular import. COMMITTEE MEMBERSHIP – NYSACDL committees are active in areas throughout the state and work on issues vital to strengthening the criminal defense community. Membership on a committee provides an excellent opportunity to pursue specific interests, serve the criminal defense bar and to network with lawyers throughout the state. MENTORING AND STRIKE FORCE ASSISTANCE – NYSACDL members provide mentoring and assistance for other members. If a question or need arises, a member will be there to give assistance. NYSACDL members are ready to step in to help other members who are subpoenaed, threatened with contempt, or otherwise under attack for the vigorous representation of the accused.

LEGISLATIVE ADVOCACY – NYSACDL’s Legislative Committee, working with a retained lobbyist, develops and pursues positions on legislative issues relating CONSISTENCY | EFFICIENCY

TRANSPARENCY | ACCURACY

NYSACDL Foundation

Save the Date!

Thursday, January 29, 2015 Grand Hyatt New York 6 pm – Cocktail Reception 7:30 pm – Dinner Annual Award Ceremony and Installation of Wayne C. Bodden, Esq. as the 2015 NYSACDL President

A simple and easy-to-use tool that accurately performs the widely varied and often highly complex calculations used in determining inmates’ release dates in New York.

www.SentenceCalculator.com To sign up for a FREE one-month trial or for more information, visit www.sentencecalculator.com or email info@sentencecalculator.com

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers

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Justice, sir, is the great interest of man on this earth. It is the ligament which holds civilized beings and civilized nations together. — Daniel Webster

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Atticus | Volume 26 Number 1 | Spring 2014 | New York State Association of Criminal Defense Lawyers


NYSACDL Online Video CLE Seminars Earn CLE credit quickly and conveniently from the comfort of your office or home with NYSACDL’s online video CLE seminars. These video reproductions of some of our most popular recent CLE seminars are sure to fulfill your educational needs for a great price!

Available for purchase at www.NYSACDL.org • Individual Presentations • Series Packages

$25/Credit Hour $50-$150

Topic Areas Available Include: Alcohol & Drug Related Cases Featured Faculty Include Marc Fernich, Esq John Ingrassia, Esq. Arnold Levine, Esq. Aaron Mysliwiec, Esq. Hon. Patricia Nunez Karen Smolar, Esq. Lisa Schreibersdorf, Esq.

Susan Necheles, Esq. Peter Quijano, Esq. Roland Riopelle, Esq John Rosen, Esq. Russell Schindler, Esq. Gerald Shargel, Esq. Wesley Serra, Esq Bobbi Sternheim, Esq. Donald M. Thompson, Esq.

Sentencing & Appeals

Ethics

Featured Faculty Include Donna Aldea, Esq. Hon. Mark R. Dwyer Eunice Lee, Esq. Claudia Trupp, Esq. Patricia Wrath, Esq.

Direct & Cross Examination Including Expert Witnesses Featured Faculty Include Samuel Adam, Jr., Esq. James Benjamin, Esq. Benjamin Brafman, Esq. Terrence Connors, Esq. Richard Convertino, Esq. Peter Gerstenzang, Esq. Jay Goldberg, Esq. George R. Goltzer, Esq. Susan Kellman, Esq. Ray Kelly, Esq.

Featured Faculty Include Donald G. Rehkopf, Jr., Esq. Michael Ross, Esq. Yvonne Shivers, Esq.

Federal Practice

Featured Faculty Include Marc Agnifilo, Esq. Helen Cantwell, Esq. Amy Millard, Esq. Richard Willstatter, Esq.

Forensic & Scientific Evidence Featured Faculty Include John Cunha, Esq. Alan Gardner, Esq. Jessica Goldthwaite, Esq. Shilpy Goswami, Esq. Jerry Grant Professor Maria Hartwig Allison Lewis, Esq. Mark Loudon-Brown, Esq. Amy B. Marion, Esq. Professor Erin Murphy, Esq. Benjamin Ostrer, Esq. Marvin Schechter, Esq. Mark L. Taff, MD Richard Torres, Esq.

Media Related Cases Featured Faculty Include Daniel Arshack, Esq. Bruce Barket, Esq.

Registration date coming soon? NYSACDL Video Seminars provide a quick, easy & inexpensive way to complete your credits for BOTH New York & New Jersey. NYSACDL Members Receive One Free Hour of Video CLE Per Calendar Year – Take Advantage of Yours Today!

Atticus | Volume 26 Number 2 | Summer 2014 | New York State Association of Criminal Defense Lawyers

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Publication of the New York State Association of Criminal Defense Lawyers

90 State Street, Suite 700 Albany, New York 12207

Phone: 518-443-2000 Fax: 888-239-4665

atticus@nysacdl.org www.nysacdl.org

“Miss Jean Louise, stand up. Your father’s passin’.” Townsfolk stand and pay their respects to Atticus Finch after the jury conviction of Tom Robinson in one of the most poignant scenes of Harper Lee’s great American classic To Kill a Mockingbird.

Original painting, © 2004 by the artist Trevor Goring • limited edition prints available, www.imagesofjustice.com

U.S. standard Postage Paid Albany, ny Permit #918