Archive | Fifth Amendment

Friday, July 21st, 2017

Second Circuit Tosses Indictments Following Fifth Amendment Violation, Denies Rehearing in Jenkins

Earlier this week, in United States v. Allen, the Second Circuit reversed the defendants’ convictions and dismissed the indictments against them.  You can access the Circuit’s 81-page opinion here.  The Circuit considered whether a witness’s involuntary testimony that was compelled by a foreign government can be used against in a U.S. prosecution.  In its introduction, the Circuit outlined its four-step conclusion:

First, the Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies even when a foreign sovereign has compelled the testimony.

Second, when the government makes use of a witness who had substantial exposure to a defendant’s compelled testimony, it is required under Kastigar v. United States, 406 U.S. 441 (1972), to prove, at a minimum, that the witness’s review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

Third, a bare, generalized denial of …


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Categories: child pornography, Fifth Amendment

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Friday, March 11th, 2016

Two Summary Orders on Search and Seizure

No published opinions today; only two summary orders (from the same panel of Katzmann, Sack, and Lohier) rejecting Fourth and Fifth Amendment challenges by the defendant.

In United States v. Mohammed Aleem, No. 15-186, the Court rejected appellant’s argument that evidence obtained by the Royal Canadian Mounted Police (RCMP), and later used in his prosecution, should have been suppressed because RCMP officers were acting as agents of the U.S. Border Patrol (and because their actions otherwise violated the Fourth Amendment). Relying on United States v. Getto, 729 F.3d 221, 227 (2d Cir. 2013), the Court ruled that “to render foreign law enforcement officials virtual agents of the United States, American officials must play some role in controlling or directing the conduct of the foreign parallel investigation”; “it is not enough that the foreign government undertook its investigation pursuant to an American . . . request.” Order at 3.…


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Categories: Fifth Amendment, Fourth Amendment

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Saturday, August 6th, 2011

To The Manner Porn

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

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

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

For the first argument, Jennings asserted that his probation officer lacked the statutory and constitutional authority …


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Categories: Fifth Amendment, supervised release, Uncategorized

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Sunday, February 13th, 2011

The Chose Tattoo

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

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

The circuit agreed that the tattoo was “testimonial.” The mere exhibition of a physical trait is not testimonial because it is not a communication that contains an assertion of fact or belief. But here, the tattoo was “used to a very different end” – not to identify Greer, but rather …


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Categories: Fifth Amendment, self-incrimination, Uncategorized

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Monday, February 15th, 2010

PC World

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

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

The court noted that the “collective entity rule” prevented the corporations from invoking a Fifth Amendment privilege and that the custodian of corporate records, acting as a representative of the corporation, cannot refuse to produce them on Fifth Amendment grounds. The circuit has long
held that …


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Categories: Fifth Amendment, Uncategorized

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Sunday, November 30th, 2008

Embassy Suite

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

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

The Trial Opinion

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

1. The Capital Indictment

Defendant Al-‘Owalhi was charged with capital offenses. Although not sentenced to death, he challenged the sufficiency …


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Categories: Fifth Amendment, Fourth Amendment, terrorism, Uncategorized

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Monday, December 17th, 2007

Underprivileged

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

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

Appellant’s primary claim was that the recordings were work product. The circuit concluded that the recordings were “fact” work product, that is, the result …


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Categories: attorney-client, Fifth Amendment, privilege, Uncategorized, work product

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Sunday, September 23rd, 2007

Attorney’s Quick Change Of Heart Saves The Day

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

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

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

Covering well trod ground, the Circuit concluded that there was no “manifest necessity” for a mistrial at such an early point, and thus that the two defendants who objected to the mistrial could not be reprosecuted. The court considered the complexity of the trial, the length of the deliberations, the fact …


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Categories: deadlock, double jeopardy, Fifth Amendment, mistrial, Uncategorized

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