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Thursday, November 14th, 2019

Judge Rakoff Orders Discovery On Defense Claim of Racially Selective Enforcement By “Reverse Stings”

In an Opinion and Order in United States v. Lopez, 19-cr-323 (S.D.N.Y. November 13, 2019), Judge Rakoff ordered initial discovery on the defense claim that DEA agents targeted racial minorities in their reverse sting drug robbery operations. In this reverse sting, confidential informants working with the DEA recruited the defendants, all men of color, to rob fictitious drug shipments. The defense filed a motion with evidence showing that “not a single one of the 179 individuals targeted in DEA reverse sting operations in the SDNY in the past ten years was white, and that all but two were African-American or Hispanic.” This contrasted significantly with the racial makeup of the population and the racial proportions of those arrested  for felony drug arrests and robberies, the two offenses arranged by the reverse sting. A “compelling expert analysis” demonstrated that the racially disparate impact was statistically significant and not random.

Judge …

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Categories: discovery, reverse stings, selective enforcement

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Categories: discovery, reverse stings, selective enforcement

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Monday, December 10th, 2018

Misleading Description of Circumstances Under Which Defendant Made Statement Leads to New Trial

In United States v. Vinas, the Second Circuit vacated a conviction and remanded for a new trial based on the government’s Rule 16 discovery violation.

 In Vinas, a courier case, the government’s Rule 16 notice disclosed that Vinas had made a self-incriminating statement during the “initial inspection” of his luggage, i.e., in a public area of the terminal at JFK Airport. Because the Circuit has held that routine questioning in the public area of an international terminal is non-custodial, the defense did not move to suppress, even though the statement was un-Mirandized. At trial, however, it emerged that the Rule 16 notice was not accurate (or, at least, ambiguous). Vinas had in fact made the statement only after four armed CBP officers took his passport and escorted him to a private search room, arguably a custodial setting. Defense counsel objected that the misleading disclosure caused him to forgo …

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Categories: discovery, Miranda

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Categories: discovery, Miranda

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Sunday, July 13th, 2008

Discovery Channel

United States v. Siraj, No. 07-0224-cr (2d Cir. July 9, 2008) (Jacobs, Straub, CJJ, Jones, DJ)

This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer.

Defendant Siraj was convicted of various offenses relating to his scheme to blow up a subway station in Manhattan. He was dealing largely with an undercover police officer, who would report their conversations to his handler; the handler would then memorialize Siraj’s statements in written reports. The government did not turn over those reports to the defense as pretrial discovery.

The relevant provision, Rule 16(a)(1)(B)(i), requires disclosure of “any relevant written or recorded statement by the defendant.” The court held that this did not cover the reports at issue. Oddly enough, however, the court did not analyze the claim under the language of Rule 16(a)(1)(B)(i) itself. Instead, it looked …

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The Secret Guardin’

United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)

In this terrorism prosecution, the court held that the district court can, for “good cause,” restrict a defendant’s access to discoverable material that might impact on national security concerns.

The court first noted that the relevant legal provisions, the Classified Information Protection Act and Fed.R.Crimp.P 16(d)(1), presuppose, without creating, a privilege against disclosing classified information. The privilege itself arises from the “common-law privilege against disclosure of state secrets,” and the court expressly rejected the notion – advocated by some in Congress – that this privilege does not apply in criminal cases. Rather, the court held, the privilege can apply in a criminal case, but it must “give way” when the evidence at issue is material to a criminal defendant’s right to present a meaningful defense.

First, a district court must decide whether the evidence …

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Categories: discovery, state secrets, Uncategorized

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