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

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