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Friday, May 18th, 2018

Supreme Court Roundup (including post-Dimaya GVRs)

This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)).

In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney to concede a defendant’s guilt, against his wishes, in the hope of sparing him the death penalty. McCoy’s attorney argued that his client lacked the mental capacity to form the specific intent necessary for first-degree murder, see slip op. at 3 n.1, but conceded in his opening statement that the jury could not reach “any other conclusion than Robert McCoy was the cause of” the victims’ deaths. Id. at 4. This strategy, the Court held, violated the client’s Sixth Amendment rights regardless whether it was “counsel’s experienced-based view . . . that confessing …

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Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

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Monday, October 16th, 2017

Today’s Cert. Grants

Today the Supreme Court granted certiorari in two criminal cases:

Dahda v. United States, No. 17-43
Question Presented: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge’s territorial jurisdiction.

Cert. papers and opinion below available here:

Dahda v. United States

Currier v. Virginia, No. 16-1348
Question Presented: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the Double Jeopardy Clause to the issue preclusive effect of an acquittal.

Cert. papers and opinion below available here:

Currier v. Virginia

Based on the cert. petitions — but not verified by independent research — it appears that the Second Circuit has not weighed in on the question presented in either case.…

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Categories: double jeopardy, wiretaps

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Categories: double jeopardy, wiretaps

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Saturday, August 27th, 2011

Tamper Proof

United States v. Simels, No. 09-5117-cr (2d Cir. August 12, 2011) (Newman, Calabresi, Hall, CJJ)

Former defense attorney Robert Simels appealed his conviction, after a jury trial, of various counts relating to a witness-tampering scheme, and his fourteen-year sentence. The circuit dismissed two minor counts as insufficient but otherwise affirmed.

The case arose from Simels’ representation of one Shaheed Khan, a Guyanese narcotics trafficker, who was detained at the MCC. The case against Simels had three main components. First, he lied to prison officials in an effort to speak to another prisoner, David Clarke, whom he believed to be a witness against Khan, by saying he was Clarke’s attorney. Second, an associate of Khan’s, Selwyn Vaughn, had several conversations with Simels, in which Simels discussed bribing and threatening potential witnesses against Khan. Vaughn had approached the DEA when he learned that Simels was reaching out to him, and wore a …

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Categories: Sixth Amendment, Uncategorized, wiretaps

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Thursday, July 29th, 2010

Our Blips Aren’t Sealed

United States v. Amanuel, No. 06-1103-cr (2d Cir. July 29, 2010) (Cabranes, Katzmann, Hall, CJJ)

After a nearly eight-year journey through both the state and federal courts without being tried, the defendants here will finally have to face the music. In this decision, the circuit vacated most of the district court’s order suppressing the evidence against them.

The State Court Proceedings

In 2002, New York state police officers obtained a warrant to intercept a digital pager used by the defendants, who were suspected of drug trafficking. The officers were supposed to record the intercepted communications electronically, but did not do so. Instead, they visually monitored a clone pager and entered the intercepted information in a handwritten log. When the warrant expired, they gave 84 pages of this material to a state judge for sealing. Based on the contents of the logs, state prosecutors then obtained a warrant to monitor and …

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Categories: Uncategorized, wiretaps

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Monday, September 7th, 2009

Tapped Out

United States v. Concepcion, No. 08-3785-cr (2d Cir. August 31, 2009) McLaughlin, Calabresi, Sack, CJJ)

On this government appeal, the court reversed a district court order suppressing evidence obtained pursuant to a wiretap.

Background

One of Concepcion’s former cellmates (the “CI”) went to the FBI claiming that Concepcion planned to assist foreign terrorists in attacking the United States. Based on this, the government applied for and received authorization from Judge Marrero to tap Concepcion’s cell phone for 30 days. The wiretap uncovered no evidence of terrorism, but Concepcion’s telephone conversations led the FBI to believe that he was involved in drug trafficking.

After 30 days, the government submitted a second wiretap application to Judge Marrero that focused on this new evidence. As required under 18 U.S.C. § 2518(1)(c), the supporting affidavit detailed investigative techniques other than wiretaps that had either failed or were likely to fail. It alleged that …

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Categories: Uncategorized, wiretaps

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Saturday, September 6th, 2008

A Family Affair

United States v. Yannotti, No. 06-5571-cr (2d Cir. September 4, 2008) (Katzmann, Parker, Raggi, CJJ)

Michael Yannotti was one of several Gambino crime family members accused of multiple violent acts – including extortion, loansharking and murder. After a jury trial, he was convicted of a RICO conspiracy, although the only predicates that the jury could agree that he committed were loansharking activities that had taken place eight years or more before he was indicted. The jury did not reach a verdict on a substantive RICO count, which the district court then dismissed on the ground that the government had failed to prove that Yannotti committed any predicate within the five-year statute of limitations. But the court did not dismiss the conspiracy count and, when it sentenced him, based its findings on conduct that the jury had not agreed that the government had proven. Yannotti received twenty years in prison, the …

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Categories: 1B1.2, expert witnesses, RICO, Uncategorized, wiretaps

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