NYSACDL Atticus Fall 2015 - White Collar Crime by NYSACDL

Fall 2015 | Volume 27 | Number 3

ATTICUS

Publication of the New York State Association of Criminal Defense Lawyers

white collar crime

INSIDE this

ISSUE 3

Message from the President

From the Editors

Dispatches from 90 State

From the Defense Table

Double Jeopardy by Sara M. Lord and Aaron M. Danzig

NYSACDL Foundation

The Evolution of Confrontation by Steven R. Epstein

Beyond Microsoft: Criminal Rule 4 by Patrick O'Donnell

NYSACDL's Prosecution and Judicial Complaint Center (PJCC)

Book Reviews

Cutting Edge CLE

New York State Association of Criminal Defense Lawyers

Forgotten Fraudsters by Harlan Protass and Wayne Gosnell â&#x20AC;&#x201C; p. 18

atticus@nysacdl.org www.nysacdl.org

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

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Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Publication of the New York State Association of Criminal Defense Lawyers PRESIDENT Wayne C. Bodden, Brooklyn PRESIDENT-ELECT Andrew Kossover, New Paltz FIRST VICE PRESIDENT John S. Wallenstein, Garden City VICE PRESIDENTS Michael T. Baker, Binghamton Danielle Eaddy, Brooklyn Alice Fontier, Manhattan Donald G. Rehkopf, Jr., Rochester Robert G. Wells, Syracuse SECRETARY Arnold J. Levine, Manhattan TREASURER Lori Cohen, Manhattan DIRECTORS Bruce A. Barket, Garden City Mitchell J. Dinnerstein, Manhattan Peter A. Dumas, Malone Marc Fernich, Manhattan Jonathan S. Fishbein, Delmar 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 Russell A. Schindler, Kingston Jay Schwitzman, Brooklyn Michael Shapiro, Manhattan Claudia Trupp, Manhattan Andre Vitale, Rochester 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. Oâ&#x20AC;&#x2122;Connell Richard D. Willstatter Benjamin Ostrer Aaron Mysliwiec EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Message from the President By Wayne C. Bodden Once again, NYSACDL is pleased to present to you this White Collar issue of Atticus. Thanks to our Editors, the Atticus staff , Immediate Past President Aaron Mysliwiec and the contributors for their efforts in putting together this issue. Thanks also to our sponsors and advertisers. As part of our commitment to inclusion, we, the leadership of this association, believe that the white collar practitioners are often overlooked and under appreciated. There is a wealth of information in these articles for us all to extract and apply to all areas of criminal practice. There are also additional articles and contributions that Iâ&#x20AC;&#x2122;m sure you will enjoy and find informative. The Fall brings an increase in court activity, so I strongly urge you to use the vast resources of NYSACDL to enhance your practice. Our website is significantly improved. We have worked hard to upgrade all of its functions and have much more to offer you than just this magazine and the listservs. Your time is valuable; the efficient use of resources can only enhance and streamline parts of your practice. Please talk to your friends and colleagues and encourage them to join us; that personal touch is invaluable. Thanks to all of you, we are getting bigger and stronger than ever. We would like to be heard in all corners of New York State and enhance the practice of criminal defense statewide. There are many ways for you to participate. Members of the Association, not simply Board members, are encouraged to join our committees, a list of which appears on the website and in each issue of Atticus. The frank exchange of opinions lays the groundwork for discussion, growth, and sometimes change. As I am a little past the half way point of my term I want to thank our Executive Director Jennifer Van Ort, the Executive Committee, our past presidents and the Board for their generous contributions of effort and time. We have combined our efforts to put together timely and informative CLE programs, be heard in Albany and take on any issue that affects our membership. And, of course, we are in the planning stages of the always fabulous Annual Dinner in January. Growing up and practicing in Brooklyn, the efforts of the criminal defense community has always been very personal to me. As a Board member, and now President, of NYSACDL I have been able to witness and appreciate so many more for their efforts and commitment to practice. Thank you for your membership. Stay engaged and help keep those in our practice committed to the distribution of excellent service.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

EDITORS

Benjamin Ostrer John S. Wallenstein Jessica Horani Richard J. Barbuto, Acquisitions and Book Review Editor A publication of the New York State Association of Criminal Defense Lawyers ©2015 NYSACDL 90 State Street, Suite 700 Albany, New York 12207 Phone: 518-443-2000 Fax: 888-239-4665 www.nysacdl.org atticus@nysacdl.org

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From the Editors’ Desk Ben Ostrer, John S. Wallenstein, Jessica Horani, Dick Barbuto This is our second White Collar Crime issue, and we are quite proud of the authors and topics we have been able to attract. The editors thank Past President Aaron Mysliewicz for his efforts in contacting, convincing, prodding, and cajoling our colleagues to write the articles which appear herein, and which we sincerely hope will be of use to you in your practice. We realize that not all NYSACDL members practice in Federal court, or defend those accused of “white collar” crime. Nonetheless, we trust that you will find the articles of use. If you would like to see an article on a particular subject, or have written one yourself, please send it to any of the editors; we welcome your input, and your submissions. PROSECUTORIAL MISCONDUCT As we go to press, the New York State Commission on Statewide Attorney Discipline has issued its final report. We encourage you to read it, all 97 pages, but we particularly draw your attention to the brief (4 pages) portion regarding prosecutorial misconduct, grouped under the catch-all heading “Other Issues” on Page 75 of the report. We will be reporting in more detail in a future edition on our read of the report and whether we find as an organization that it adequately addresses the serious issue of prosecutorial misconduct. We will also provide our suggestions to address and discipline instances of prosecutorial misconduct in a more meaningful manner. At a time when the media is starting to shine a light on every crevice of the criminal justice system, including inmate abuse on Riker’s Island; aggressive policing practices; racism within the system; unjust bail and pretrial detention; and more, we hope that the serious harm that prosecutorial misconduct causes to the integrity of the system will also be brought to light, examined, and addressed with the seriousness it deserves. Fortunately, as an organization, we have a strong voice for every member who may find themselves in the position of having to report ethical misconduct occurring in the courts. NYSACDL’s Prosecution and Judicial Complaint Committee, chaired by Michael Shapiro, stands ready to assist in this process. The committee will file complaints with the appropriate disciplinary committee or court whenever prosecutors cross ethical lines while providing a much needed buffer between the practitioner and the courts. We urge our membership to take advantage of the PJCC, as it is known, when you find yourselves in such a situation. Don’t go it alone; there is strength in our numbers and strength in our voices. A — Ben, John, Jessica & Dick

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

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.

Jennifer Van Ort Executive Director In 2016, the New York State Association of Criminal Defense Lawyers will celebrate its 30th Anniversary. NYSACDL leadership has begun thinking about exciting ways we can commemorate this special occasion. Along with commemorations, this anniversary is an opportunity to continue evaluating NYSACDL programs and long-term planning. We encourage you, our members, to take advantage of upcoming opportunities to assist us in this evaluation – look for those opportunities coming soon! Kicking off this celebratory year will be the NYSACDL Foundation 2016 Annual Dinner on January 28th. We are excited to announce the initial details of the 2016 dinner in this issue of Atticus. After the success of last year’s dinner at the Grand Hyatt New York, we are pleased to be returning this year for another fantastic event. Most important at this time for the dinner is the availability of sponsorships with dinner program advertisings. These sponsorships are now available, and when secured by early November, your firm or name will be included in the Annual Dinner invitation sent to all members and many friends of NYSACDL. Consider securing a sponsorship today for this enhanced opportunity to display your support of this year’s awardees and NYSACDL! Moving forward with long-term planning, the NYSACDL Board of Directors recently adopted aggressive yet achievable membership goals through 2020. Proactively planning membership increases helps NYSACDL administratively, and also helps all of our members through an increased accessible knowledge base and increased strength of voice on legislative issues. Based upon the success of past years, NYSACDL will strive for at least a 10% increase in membership over the next 5 years, putting total membership over 1,300 by the end of 2020 (from 820 at the end of 2014). We are developing a number of strategies to achieve this growth, and I encourage your input and ideas. As always, I can be contacted by email (jlvanort@ nysacdl.org) or by telephone (518-443-2000). One device we are employing to increase membership is special issues of Atticus, such as the White Collar Crime issue you are holding right now. If this is your first time enjoying the quality of our professional magazine, I encourage you to consider joining your colleagues with a NYSACDL membership for 2016. Any memberships started in the last months of 2015 will begin immediately, resulting in free months of membership for the end of the year. If you are a current member, thank you, as always, for your commitment to NYSACDL. I strongly encourage you to share this copy of Atticus with a colleague who may not have joined NYSACDL yet. Your recommendation of NYSACDL’s membership program may be just the encouragement someone needs to join us today. Thank you, again, for your support of NYSACDL and commitment to protecting the rights of criminal defendants! A

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Murder Acquittals in the City; an Upstate life sentence evaded; an Appellate win in Puerto Rico; a Swiss Bank’s penalty free non-prosecution agreement; and more in this edition of —

From The Defense Table Member David Cohen finished his summer with an exhilarating Murder 2 acquittal in Manhattan Supreme Court before the Honorable Bonnie P. Wittner in the case of The People of the State of New York v. Pierre Hecker. The case went to trial nearly five years after a fatal shooting on September 10, 2010 between alleged drug rivals which took the life of Anthony Evans, known on the street and referred to throughout the trial as ‘Apple’, and left Hecker on the run from the law with a bullet wound of his own. The scene of the shootout was less than a mile from the courthouse where on August 13, 2015 Mr. Hecker, surrounded by his attorney and family and jurors, walked jubilantly from the courtroom: a free man. The defense case was billed by both the prosecution and the Judge as an unbelievable tale; better suited to a television or film drama than the courtroom. The basis for disbelief was the self-defense claim put forth by the defense which had Mr. Hecker, an admitted drug dealer, getting shot by ‘Apple’ and then knocking a gun out of Apple’s cousin’s hands, fleeing, turning back, and shooting while he was running away. The defense relied on Hecker’s own ‘no holds barred’ testimony to convince the jury that he, an

admitted drug dealer, had not intended the death of his rival, but rather that he was ambushed by Apple and Apple’s cousin, known to the jury as ‘Boogie’, and that through a combination of luck and skill he was able to get a gun away from Boogie and shoot back in selfdefense while fleeing to safety. Cohen had the perhaps herculean task of convincing the jury that not only did Hecker act in self-defense, but that he had not unlawfully possessed a

…one of [the] jurors who stayed after the verdict to meet and speak with the defense team solemnly shook Hecker’s hand and simply said, “Please Pierre, let us just not see you here again.” firearm during and after the shooting. Cohen repeatedly asked for, and was denied, a temporary lawful possession charge regarding the firearm. Given Hecker’s record (which was nearly completely disclosed to the jury during his testimony given the Court’s Sandoval ruling) even if the jury had acquitted on the murder charge, Hecker was facing a likely discretionary persistent sentence of 15-life if convicted on even one of the two weapons charges. The defense presented a total of four defense witnesses including Hecker and the prosecution evidence included

video surveillance footage showing Hecker during the shootout as well as firearm ballistics evidence from the two different guns used as well as a female witness who claimed that Hecker had confronted both Apple and Boogie before the shooting began. That female witness, the deceased’s girlfriend, also testified that she had two children by Hecker’s cousin and considered Hecker to be an uncle to those children. She was a strong witness for the prosecution based on her presence at the scene and her apparent lack of bias given her ties to both Hecker and the deceased. The jury deliberated for two days during which time they repeatedly sent notes to the Court asking for clarification regarding the weapons charges and the meaning of unlawful possession in relation to a justification defense. The defense team was cautiously optimistic upon hearing that the jury seemed to be considering their self-defense claims but remained nervous over the prospect of a weapons conviction and the inevitable lengthy prison sentence which could follow. Regarding the weapons charges Hecker had testified that he had fled the scene, emptied the gun of bullets, and then disposed of the now unloaded firearm in a dumpster. Cohen argued repeatedly to the Judge that this version of events should entitle them to a charge on temporary lawful possession. Although that charge was never given, the Court did finally instruct the jury on ‘intent to use unlawfully and justification’ after a fourth and

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

final jury note regarding the issue. Approximately five minutes after that instruction the jury returned, acquitting Hecker on all counts. Hecker, who had been in custody since his arrest for the crime on January 21, 2012, leaped to his feet in relief and joy and walked out of the courtroom with his very relieved defense counsel alongside him. Demonstrating the important emotional connection made between the defense and the jurors during the trial; one of several jurors who stayed after the verdict to meet and speak with the defense team solemnly shook Hecker’s hand and simply said, “Please Pierre, let us just not see you here again.” Member Ruth Liebesman recently obtained an appellate win in a case out of the District of Puerto Rico. The case was a racketeering conspiracy with murder, drug dealing and guns as racketeering acts. Defendant was convicted on all charges, including murder and had been sentenced to life. The First Circuit reversed Ms. Liebesman’s client’s conviction and suppressed all of the physical evidence seized during the warrantless “exigent circumstances” search of his home. The weapons and mass quantities of alleged drugs were suppressed. The Court has ordered a hearing into whether his statement was “the fruit of the poison tree.” NON-PROSECUTION AGREEMENT AND ZERO PENALTY FOR SWISS BANK Following the disclosure by UBS and other Swiss banks of previously secret

Courage and perseverance have a magical talisman, before which difficulties disappear and obstacles vanish into air. – John Quincy Adams account information in and after 2010 for thousands of U.S. citizens who had used the accounts to evade U.S. income taxes, in 2013 the Department of Justice and the IRS established a program to permit Swiss banks the opportunity to secure non-prosecution agreements in exchange for their cooperation in identifying their U.S. clients who may have engaged in tax evasion. In order to avail themselves of the program, the banks had to commit to paying substantial penalties based upon the amount of tax evaded by their clients. As reported on DOJ’s website, the typical penalty for Swiss banks participating in the program is millions or hundreds of thousands of dollars. NYSACDL Director Michael Shapiro, co-chair of the White Collar Practice at Carter Ledyard & Milburn, headed a team which secured a nonprosecution agreement with a zero dollar penalty from DOJ for their client, BIM Suisse. Shapiro and his team were able to demonstrate to the satisfaction of the DOJ and IRS that BIM Suisse’s U.S. clients had either always been U.S. tax compliant or had become so under pressure from the Bank, prior to the establishment of the program. DOJ acknowledged that “[b]eginning in September 2007, BIM Suisse adopted

measures to avoid facilitating U.S. tax evasion…” and “[i]n 2009, the Bank further strengthened its compliance policies.” NYSACDL Director and Senior Assistant Public Defender Russell Schindler won a misdemeanor verdict following a felony jury trial in Ulster County in The People of the State of New York v. William Knox. Mr. Knox was charged with Assault in the Second Degree, Aggravated Criminal Contemp, Criminal Contempt in the First Degree, and three additional misdemeanors. Mr. Knox faced a mandatory persistent life sentence if convicted of the Assault charge. The defense centered on the lack of credibility of the complainant and the poor quality of the police investigation. Mr. Schindler was able to balance a strong cross examination of the complainant with avoiding making her appear sympathetic to the jury. The defense, which did not put Mr. Knox on the stand, also carefully and meticulously exposed the failures of the police investigation. Mr. Knox was released following the verdict and awaits sentencing on the misdemeanor in November.

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From the Defense Table Continued from previous page Member Troy Smith won a full acquittal in the Bronx on April 1, 2015 (no joke) in a Murder in the Second Degree case which involved DNA evidence, an alleged confession; and a grisly crime scene. The People of the State of New York v. Dale Robertson began on November 15, 2006 like an episode of Law & Order with a body found in a garbage bag dumped in a park. The deceased was a naked female bound with duct tape and the bag was found at Rosewood Park in the 47th Precinct along with another garbage bag, presumed to have been used to transport her body to the park. The Medical Examiner testified that the cause of death was manual strangulation but on cross examination Mr. Smith pressed the ME to concede that the autopsy had revealed the most amount of hemorrhaging that she had ever observed in a strangulation death. The defense presented evidence to the jury that an ex-lover of the deceased had confessed to a witness that he had pistol whipped the victim in the back of the head when she tried to end their relationship. That individual was never fully

investigated by police according to the defense, because the police believed the cause of death was strangulation. The defense called their own expert to rebut the ME’s claims and to support their assertion that the deceased’s injuries were more consisted with such a blunt force trauma rather than strangulation. The prosecution had evidence that an anal swab of the deceased revealed the presence of semen and that the DNA was a mixture between the primary contributor, the deceased, and the DNA profile of donor ‘A’ which was said to match the known DNA profile of Mr. Robertson. A swab of the garbage bag which the deceased’s body was found in was also found to have the presence of Mr. Robertson’s DNA. Both of these samples were obtained using Low Copy Number (LCN) testing which was recently excluded after a Frye hearing in Brooklyn before the Honorable Judge Mark Dwyer. Although the results were admitted in this case; the defense still made use of the objections to the LCN methodology of testing DNA in its cross examination of the People’s expert. The defense further highlighted the fact that two additional pieces of evidence, the duct tape and a second swab from the garbage bag, were tested for DNA using standard PCR testing and Mr. Robertson was excluded from both those samples. Additionally; the

second garbage bag, which was obtained by police as evidence and was likely used by the murderer to transport the victim’s body, was inexplicably never tested for DNA. Despite the police testimony regarding an alleged sobbing confession by Mr. Robertson in the back of a police cruiser to a Detective, the defense was able to successfully argue the falsity of that ‘confession’ to the jury. The defense in their summation also acknowledged the likelihood based on the DNA evidence that Mr. Robertson had engaged in sexual intercourse with the deceased within 72 – 96 hours of her death but that evidence failed to prove that Mr. Robertson was her murderer. The Jury agreed and returned a verdict of Not Guilty on all three counts of Murder in the Second Degree, Manslaughter in the First Degree, and Manslaughter in the Second Degree. Congratulations to all our members listed and those we weren’t able to publicly acknowledge for their accomplishments on behalf of their clients. If you or a colleague have recently won a trial, a hearing, an appeal, or otherwise wrested some measure of justice for your client from the system; let us know about it by emailing it to our attention at jhorani@horanilaw.com.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Recent 9th Circuit Double Jeopardy Case Highlights Potential Defense Where Prosecutor Brings Perjury Case After Acquittal On Substantive Counts By Sara M. Lord | Aaron M. Danzig Arnall Golden Gregory LLP

n Wilkinson v. Gingrich, the United States Court of Appeals for the Ninth Circuit recently overturned a defendant’s conviction for perjury following his acquittal in an earlier proceeding on double jeopardy grounds.1 The decision brings the conflict between protecting against double jeopardy and protecting the integrity of the judicial process into sharp focus – and highlights the different balances courts have struck between these competing interests since the Supreme Court expanded the constitutional prohibition against double jeopardy to include collateral estoppel in Ashe v. Swenson.2 In particular, the Ninth Circuit’s standards for deciding when a perjury prosecution following an acquittal is barred by double jeopardy contrast with the more restrictive standards in the Second Circuit. DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL: ASHE V. SWENSON Along with three others, Ashe was charged with robbing six participants in a poker game. Ashe was tried separately on the single charge of robbing one of the particiContinued on next page

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Double Jeopardy Continued from previous page pants in the game. While the evidence that an armed robbery had occurred was “unassailable,” the evidence that Ashe had been one of the robbers was weak, and he was acquitted. Six weeks later, Ashe was tried for the robbery of another participant in the poker game and convicted.3

Sara M. Lord is a partner in the Washington, D.C. office of Arnall Golden Gregory LLP. She is a former Assistant U.S. Attorney and a former prosecutor in the Public Integrity Section of the U.S. Department of Justice.

Aaron M. Danzig is a partner in the Atlanta office of Arnall Golden Gregory LLP and is chair of the firm’s Government Investigations and Special Matters Practice Group. He is a former Assistant U.S. Attorney.

Finding that the guarantee against double jeopardy encompasses the principle of collateral estoppel, the Supreme Court examined the record of the prior proceeding to determine whether “an issue of ultimate fact” had “been determined by a valid and final judgment” in the first proceeding, barring its re-litigation in the second proceeding.4 In examining the record of the first proceeding, the Court concluded that “the single rationally conceivable issue in dispute before the jury was whether [Ashe] had been one of the robbers.”5 Since “the jury by its verdict found that he had not,” and because identity also was an ultimate issue in the second trial, collateral estoppel barred the state from trying him for the robbery of the other poker players.6 Prior to Ashe, courts generally held that perjury prosecutions following an acquittal were not barred by double jeopardy because perjury and the earlier substantive offense were not the same offense. Traditionally, this meant that the two offenses each required evidence that the other offense did not require (the same evidence test). With the inclusion of collateral estoppel in the double jeopardy analysis, the Supreme Court extended the inquiry beyond the offenses with which the defendant was charged to whether the offense charged in the second proceeding involved the same issue of ultimate fact that had been resolved in the earlier proceeding. With the expanded focus on issues, rather than simply on the offenses and the evi-

dence required to convict under them, the Court also opened perjury convictions following an acquittal to challenge on double jeopardy grounds. While the Court has affirmed Ashe’s continuing validity, including most recently in Yeager v. United States,7 the courts have been inconsistent in their application of the principle to perjury prosecutions following an acquittal. The cases reflect the tension between protecting an accused from a successive prosecution where, having convinced a jury that he was not guilty, he could be tried for having testified falsely, and allowing an acquittal to insulate him from prosecution for having testified falsely in order to gain the acquittal. To determine whether collateral estoppel applies, Ashe requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.”8 However, neither Ashe nor any of the Court’s later decisions re-affirming its principle, has ever clarified the standards for conducting the examination of the record, for determining which issues the jury grounded its verdict on, or for concluding that the issue is foreclosed from re-consideration in a subsequent proceeding. As a result, courts have adopted different approaches to the question of when collateral estoppel bars a subsequent prosecution for perjury following an acquittal. DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL AFTER ASHE V. SWENSON While Ashe opened perjury convictions to challenge on double jeopardy

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grounds, the bases for challenge are narrow and successful challenges are rare. In all secondary perjury cases, the defendant bears the burden of demonstrating “that the issue whose litigation he seeks to foreclose was actually decided in the first proceeding.”9 In examining the jury’s verdict in the first proceeding, however, courts treat the verdict differently. While some courts examine the verdict to determine whether the jury must have decided the issue in the defendant’s favor as part of the verdict, others examine the verdict to determine whether the jury could have decided the case on other grounds than the issue presented in the perjury case. While the first approach has resulted in the application of collateral estoppel in some perjury cases following an acquittal, the latter approach makes it very difficult for a defendant to meet his burden. Or, as the Second Circuit expressed it not long after Ashe was decided, “it is a rare case where a defendant can sustain his burden of establishing that the prior jury necessarily decided an essential issue in his favor.”10 The burden is compounded when the court determines that it cannot precisely identify the bases for the jury’s decision – in which cases, courts have declined to find that collateral estoppel applies. As its decision in Wilkinson attests, the Ninth Circuit has historically favored the first approach, expressly accepting the risk of a guilty individual escaping punishment as a price “that we are willing to pay in order to preserve the basic liberties guaranteed by our Constitution.”11 In the Ninth Circuit, Ashe is implemented through a three-step process that requires the court to (1) identify “the issues in the two actions for the purpose of determining whether the issues are sufficiently similar and sufficiently material in both actions

to justify invoking the doctrine;” (2) examine “the record of the prior case to decide whether the issue was “litigated” in the first case;” and (3) examine “the record of the prior proceeding to ascertain whether the issue was necessarily decided in the first case.”12 Thus, in the Ninth Circuit, “[c]ollateral estoppel applies when the jury resolves, in a manner adverse to the government, an issue that the government would be required to prove in order to obtain a perjury conviction in the second trial.13 In contrast to the Ninth Circuit, which has focused on the verdict in the first proceeding and the similarity of the issues in the two proceedings, the Second Circuit has focused on the difficulties of examining the record in order to identify the basis for the jury’s decision as Ashe requires. In United States v. Mahaffey,14 the court stated that the case reveals “the impossibility of divining with any accuracy the precise findings of the jury as to each element of the charges of which defendants were acquitted.” Similarly, in United States v. Tramunti,15 the court stated, “[s]ince it is usually impossible to determine with any precision upon what basis the jury reached a verdict in a criminal case, it is a rare situation in which the collateral estoppel defense will be available to a defendant.”16 The application of collateral estoppel in the Second Circuit involves a two-part analysis: “first, the court must determine what precisely the first judgment decided. Second, the court must decide how that decision bears on the second case.”17 As the district court noted in Mahaffey, “[t]he difficulty of applying collateral estoppel in criminal cases lies primarily in the first step of the inquiry.”18 The effect of the courts’ reluctance to delve into the jury’s findings has been to deny relief on collateral estop-

pel grounds to defendants in secondary perjury cases. Whether because of this or for other reasons, there have been few cases in which defendants have even challenged perjury prosecutions following an acquittal, and none that are recent. DOUBLE JEOPARDY AND COLLATERAL ESTOPPEL IN WILKINSON V. GINGRICH On January 20, 2007, California Highway Patrol Officer Magrann pulled over a car that had been traveling at 101 miles an hour. The driver identified himself as “Kendall Wilkinson,” and presented a United Kingdom driver’s license with that name, but without a photograph. Officer Magrann issued a citation ordering the driver to appear in traffic court. The citation appeared to have been signed by “J. Wilkinson.” When the driver did not appear for the scheduled hearing, the traffic court issued an arrest warrant and the sheriff ’s department arrested Wilkinson on the warrant. Both Wilkinson and Magrann appeared at the trial, which was held on July 30, 2007. There was no transcript of the trial, but the essentials of what happened were not in dispute. Wilkinson testified that he was not the driver of the car, and provided a Nevada driver’s license with a photograph and the name “James Kendell Wilkinson.” Although Magrann had testified that he was “approximately . . . about 98 percent sure” that Wilkinson had been the driver, the Nevada driver’s license made him doubt whether Wilkinson had been driving the vehicle. The traffic court judge acquitted Wilkinson. The court’s docket sheet contained the entry, “The Court finds the defen-

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Double Jeopardy Continued from previous page dant NOT GUILTY as to all counts as charged in the Original Citation. The person in court states that they are not the same person named in the Citation.” Following the hearing, Magrann spoke with Wilkinson in the hallway. Based on their conversation, Magrann concluded that Wilkinson had in fact been the driver on January 20, 2007, and opened an investigation of Wilkinson. Officers executing a search warrant at Wilkinson’s home about six months later found a folder labeled “Kendall Wilkinson” that contained the January 20, 2007 speeding ticket. Based on the false statement that he was not the driver of the vehicle on January 20, 2007, Wilkinson was charged with perjury by the State of California and convicted at trial. Reviewing Wilkinson’s petition for habeas relief, the Court of Appeals for the Ninth Circuit found that the case concerned the first and third steps of the Ashe analysis: whether the issues in the two actions were sufficiently material and similar to justify invoking collateral estoppel, and whether the issue was necessarily decided in the first case. With respect to the first step, the court found that “[n]arrowly construed, the question in the traffic court proceeding was whether Wilkinson was the driver of the speeding car, and the question in the perjury proceeding was whether Wilkinson gave false testimony in traffic court when he denied being the driver.”19 The issue, the court said, was not whether the defendant’s testimony that he was not the driver was true, but whether the jury had decided an issue in the first proceeding that was “sufficiently similar” to an issue in the prospective second prosecution, and that the similar issues were “sufficiently material” in both in-

stances.20 Finding that the driver’s identity was the ultimate issue in the traffic court proceeding (“the only question was whether Wilkinson was the driver”), the court also found that the driver’s identity was an ultimate issue in the perjury prosecution, where the alleged false statement was that Wilkinson “was not the driver of the vehicle on January 20, 2007.”21 If Wilkinson was not the driver on January 20, 2007, then his statement was not false. Since the traffic court judge found that Wilkinson was not the driver, he necessarily decided the ultimate issue in the second case.22 The State argued, however, that it was not known on what basis the traffic court had acquitted Wilkinson, offering three different reasons the court might have had for the acquittal. The Court of Appeals specifically rejected this approach, which was akin to the Second Circuit’s blocking argument that the reasons for the jury’s verdict can only rarely be discerned. Instead, the court emphasized that it did not matter whether the traffic court believed Wilkinson was telling the truth – or whether he did not believe the officer was telling the truth or whether he found that the State had not met its burden of proof when each of these reasons went to whether Wilkinson had been the driver. Since that had been the issue in the first proceeding, the traffic court’s finding that Wilkinson had not been the driver precluded litigation on that point in the secondary perjury proceeding. CONCLUSION The Supreme Court in Ashe v. Swenson expanded the reach of double jeopardy protection to include collateral estoppel and focused on whether the second prosecution related to the same issue of ultimate fact that had been resolved

in the earlier prosecution. Since that time, courts have expressed difficulty in making that determination, with courts in the Second Circuit applying a more restrictive standard. However, the recent Ninth Circuit case of Wilkinson v. Gingrich illustrates a circuit split and may signal a more expansive view of constitutional protection against double jeopardy. A Wilkinson v. Gingrich, No. 13-56952 (9th Circuit, September 3, 2015).

397 U.S. 436, 448 (1970).

Id. at 438-40.

Id.,at 443.

Id. at 445.

Id.

557 U.S. 110, 119 (2009).

Ashe, 397 U.S. at 444.

Dowling v. United States, 493 U.S. 342, 350 (1990).

United States v. Cala, 521 F.2d 605, 609 (2d Cir. 1975).

United States v. Castillo–Basa, 483 F.3d 890, 896 (9th Cir.2007).

12 See, e.g., Wilson v. Belleque, 554 F.3d 816, 830 (9th Cir. 2009); United States v. Castillo–Basa, 483 F.3d at 899. 13

Castillo-Basa, at 900.

499 F.Supp.2d 291, 297 (E.D.N.Y. 2007).

500 F.2d 1334, 1346 (2d Cir. 1974).

See also United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir. 1979) (“the ground of acquittal cannot generally be ascertained”); United States v. Gugliaro, 501 F.2d 68, 70 (2d Cir. 1974) (“it usually cannot be determined with any certainty upon what basis the previous jury reached its general verdict”).

United States v. Jackson, 778 F.2d 933, 938-39 (2d Cir. 1985); Mespoulede, 597 F.2d at 332.

Mahaffey, 499 F.Supp.2d at 296.

Wilkinson v. Gingrich, No. 13-56952, Slip op. at 11 (9th Circuit, September 3, 2015).

Id. at 12 (emphasis in original).

Id.

Id. at 12-13.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

NYSACDL Foundation Update Member Phil Solages recently took advantage of NYSACDL’s moot court program to prepare for his upcoming Court of Appeals argument in People v. Varenga, in which the Court will decide how to determine when a conviction becomes final for Padilla retroactivity purposes. At the initial meeting, Phil brainstormed ideas for the upcoming argument with a group of seasoned appellate and immigration practitioners. As the argument approaches, a formal moot will be conducted. Phil found the experience extremely helpful. “As a practicing attorney, I believe that the NYSACDL moot court program is extremely beneficial. The program allowed me to prepare my oral argument before the Court of Appeals. The participants in the program had bright ideas and great suggestions. I consider myself to be very fortunate to have utilized this resource,” Phil explained. The program is provided free to all members and is simple to access. Those who would like to arrange a moot for an upcoming appellate argument should simply email Jennifer Van Ort at jlvanort@nysacdl.org and she will arrange for a panel and secure the space for the moot.

New FREE CLE for Members Another benefit to members is a new program beginning this fall providing free CLE credit through a series of programs offered in partnership with the Center for Appellate Litigation. Members will be able to attend, at no extra cost, a series of hour-long discussions hosted at the Center located at 120 Wall Street in lower Manhattan. The first program, “Top Tips For Avoiding An Ineffective Assistance of Counsel Finding,” will be offered on October 15, 2015, at 6:00 p.m. Registration is limited to the first 20 members who apply so please contact Jennifer Van Ort at jlvanort@nysacdl as soon as possible to secure your spot.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

The Evolution of Confrontation:

By Steven B. Epstein

Steven Epstein, Esq. is admitted as an attorney in New York and Connecticut, as well as before the United States District Courts for the Eastern, Southern and Northern Districts of New York and the United States Supreme Court. General Member, National College for DUI Defense (NCDD)

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Admissibility of Laboratory Test Results in a Criminal Trial

he Sixth Amendment to the United States Constitution provides, among other things, that “in all criminal prosecutions, the accused shall … be confronted with the witnesses against him.” Most legal scholars would agree that the right of confrontation is one of the most fundamental rights guaranteed by the Bill of Rights, one described as a bedrock procedural guarantee. The beauty and vibrancy of the law, and indeed the strength of our Constitution, lies in its flexible boundaries and ability to evolve with scientific and social advancements. Often, this evolution takes decades; but sometimes it is very quick, resulting from one watershed decision followed by a flurry of cases applying, distinguishing, and tweaking its boundaries. Such has been the evolution of the confrontation clause over the past few years, as the Supreme Court, along with the highest courts of every state, has issued a series of decisions designed to allow this fundamental right to catch up with the modern criminal trial, where the prosecution’s case is increasingly founded on scientific and forensic test results, and where the defendant’s freedom often hinges on a certified printout of a report rather than the credibility of a witness. In cases concerning the forensic analysis of a drug, the prosecution must establish at trial that the evidence recovered by police was, in fact, a controlled substance, which can only be accomplished by chemical testing at a forensic laboratory. Similarly, in cases concerning an allegation of driving while impaired by drugs or alcohol, the prosecution must establish that tested specimen of blood contained a quantity of a controlled substance or alcohol, which similarly requires scientific laboratory testing. Prosecutors historically have sought to streamline the presentation of such cases by simply introducing a certified laboratory report under the business records or catch-all exception to the

rule against hearsay, and then having an expert witness interpret the report and explain it to the jury pursuant to Federal Rule 703, or a state corollary.1 This deft navigation through statutory evidentiary channels bypassed the need to call each individual laboratory technician who prepared the evidence, conducted the testing, calibrated the Since the rights guaranteed by the Sixth Amendment can be expanded by the states, an analysis in each case must also be made by applying state law. For example, New York courts recognize that expert testimony may be based on out-of-court material, but do not allow disclosing the details of that material to the jury if the out-of-court material consists of the testimonial hearsay statements of declarants who cannot be cross-examined. See People v. Goldstein, 6 N.Y.3d 119, (2006).

equipment, drew a conclusion, and prepared the report; but while avoiding hearsay problems and streamlining the process, it concomitantly severely curtailed a defendant’s constitutional right of confrontation. Nevertheless, this practice was permitted under the rule laid out in Ohio v. Roberts, 448 U.S. 56 (1980), which approved the practice of admitting an unavailable witness’s statement against a criminal defendant if the statement bore adequate indicia of reliability. This rule allowed a distinction between the use of out- of-court statements and in-court

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Continued on next page

Laboratory Test Results Continued from previous page testimony when determining whether such testimony violated the accused’s right of confrontation. In Crawford v. Washington, 541 U.S. 36 (2004), the Court departed from this distinction between in- and out-ofcourt testimony, holding that testimonial statements within the ambit of the Confrontation Clause included material such as affidavits, whose declarants the defendant was unable to cross-examine, or similar out-of-court statements that

were made and prepared for litigation purposes, or would reasonably be expected to be used to prosecute an accused. After Crawford, the determination of whether admission of such out-of-court statements violated an accused’s rights of confrontation shifted from a traditional hearsay- based focus on whether the evidence was reliable to a confrontation-based examination of whether the evidence offered was testimonial. If the evidence was deemed testimonial, it could not be offered at trial in the absence of the declarant, unless the declarant was unavailable and the accused had a prior opportunity to cross-examine her. The Crawford Court did not, however, provide a comprehensive definition of “testimonial evidence,” leaving lower courts and commentators to wrangle over that key question for a few years, and the final resolution of the question for another day. That day came, in part, five years later, when the

High Court granted certiorari to review the confrontation-clause implications of the prosecutions’ practice of introducing certified forensic laboratory results without testimony by the analysts who performed the analysis. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Supreme Court held that forensic reports that certify incriminating test results are “testimonial evidence” whose admission without testimony by the declarants runs afoul of the Confrontation Clause. The Court looked behind the

label of the document to the purpose behind it, concluding that despite the label of “certificate of analysis,” such documents were testimonial in nature. The Court reasoned that such affidavits were issued in order to establish a fact, and were functionally identical to live, in- court testimony, doing precisely what a witness would do on direct examination. Thus the Court held that absent a showing that the analysts who authored the affidavits were unavailable to testify at trial and that the defendant had been afforded prior opportunity to cross-examine them, the defendant “was entitled to be confronted with the analysts at trial.” The issue of whether a confrontation violation occurs when a forensic laboratory report is introduced against a criminal defendant without testimony by the analysts who performed the test, resurfaced before the United States

Supreme Court in Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011). This time, the Supreme Court was asked to examine the implications of the use of a report prepared in relation to a DWI prosecution in which a blood sample was sent to a police laboratory for blood alcohol analysis. The analyst who performed the test did not testify at trial, and the prosecution introduced the contents of the report through the testimony of a surrogate witness. The Court once again ruled that the report was testimonial and that only live testimony by the analyst who made the observations upon which his certification was based would protect the defendant’s right of confrontation. After its landmark decisions in MelendezDiaz and Bullcoming safeguarding the right of confrontation by imposing limitations on the use of alternatives to live witness testimony in cases involving forensic analysis, the Supreme Court, in Williams v. Illinois, 132 S.Ct. 2221 (2012), loosened the reigns a bit. The Court held in Williams that a defendant’s confrontation rights were not violated by a testifying expert’s reliance on a forensic laboratory report prepared by a non-testifying analyst. In Williams, the state court had permitted an expert to testify concerning the contents of a report prepared by a non-testifying witness pursuant to a state rule similar to Rule 703 of the Federal Rules of Evidence. The Court carved out an exception to the right of confrontation in situations where such testimony is not for the purpose of proving the truth of the matters asserted in the non-testifying witness’ report. The Court also found that the report was non-testimo-

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

nial because it did not have the primary purpose of accusing a targeted individual of engaging in criminal conduct. In Williams, the report at issue was a DNA profile, and the Court reasoned that the analyst had no idea whose DNA might eventually match the profile, as the defendant was not yet a suspect. Thus, the primary purpose of the report was not to provide evidence against an accused at trial and, thus, make a testimonial statement. It is doubtful that the loosening of the restrictions in Williams will offer any assistance to prosecutors in DWI prosecutions to enable them to avoid the need to call the person who conducted the forensic analysis. In such cases, a suspect has already been clearly identified at the time the report is prepared, and the purpose of any such report is obviously testimonial. However, in cases where

there exists independent evidence of the target drug, Williams may provide a means to admit testimony from an expert concerning the content of the report, while avoiding the need to call its author. Although Williams does not return prosecutors to the loosened standards that existed in Ohio v. Roberts, the holding in Williams–that reports which do not have the primary purpose of accusing a targeted individual of engaging in criminal conduct do not implicate the right of confrontation–should ensure that prosecutors will remain able to introduce calibration and maintenance reports without needing to call the technician who performed the maintenance and prepared such report. See, e.g., People v. Pealer, 20 N.Y.3d 447, 985 N.E.2d 903 cert. denied sub nom. Pealer v. New York, 134 S. Ct. 105, 187

L. Ed. 2d 77 (2013) and reargument denied, 24 N.Y.3d 993, 21 N.E.3d 556 (2014). Thus, the decision should be seen as an evolution – a balance – allowing the prosecution to rely on new technological and scientific advances while maintaining a reasonably streamlined case, but still ensuring that the confrontation clause’s bedrock principles are not eroded with the passage of time and the advancement of forensic science. A

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 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

ORGOTTEN RAUDSTERS: The U.S Sentencing Commission’s Failure to Implement the Statutory Presumption of Probation for Low-Level Economic Offenders (And What To Do About It) By Harlan Protass and Wayne Gosnell

Despite all the ink spilled in national publications like The Wall Street Journal and The New York Times on the sentences imposed in big-ticket, white-collar cases – large-scale corporate frauds like Enron and WorldCom, insider trading rings like that involving Galleon Group founder Raj Rajaratnum, or Ponzi schemes like Bernie Madoff ’s – close to 20% of all federal economic offenses involve losses of $10,000 or less and 60% of those frauds involve losses of less than $200,000.1 Most of the individuals who commit these crimes are first-time offenders. And virtually none of their misconduct involves even a hint of violence. Yet most of these fraudsters are sent off to serve time behind bars – the average sentence in 2014 for financial fraud was 27 months.2 Why? Largely because the United States Sentencing Commission has failed to carry out its statutory mandate to “insure that” the United States Sentencing Guidelines “reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.”3 This article is intended to educate you – the practitioner – as to the basis of that failure. It also will give you guidance with respect to arguments upon which to base requests for a non-jail sentence for these low-level, “forgotten fraudsters” notwithstanding a sentencing scheme that dictates prison for virtually all financial offenses.

Harlan Protass is a partner at Clayman & Rosenberg LLP. He is also an adjunct professor at the Benjamin N. Cardozo School of Law (where he teaches sentencing law) and a member of the Practitioners Advisory Group to the United States Sentencing Commission.

I. GENESIS OF THE UNITED STATES SENTENCING GUIDELINES The Sentencing Reform Act of 1984 (the “SRA”) created the United States Sentencing Commission (the “Commission”). The Commission, in turn, drafted the United States Sentencing Guidelines (the “Guidelines”), which apply to all federal felonies and misdemeanors committed after November 1, 1987.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

The Guidelines are premised on the basic notion that punishment for federal offenses should be uniform nationwide because violations of federal law are the same wherever committed. And that is precisely how they were drafted to work. Until recently (as detailed below), the Guidelines provided a mandatory structured sentencing system that in most instances assured something close to sentencing uniformity coast-to-coast. They also made the sentencing process largely mechanical and left judges little discretion to consider the characteristics of individual offenders or the circumstances of individual offenses when determining and imposing sentence. In January 2005 the U.S. Supreme Court ushered in a new era of federal sentencing by radically transforming the Guidelines system that had governed the federal criminal justice system for close to two decades. As the culmination of a line of cases starting with Apprendi v. New Jersey,4 the Court found in United States v. Booker5 that mandatory application of the Guidelines violates the Sixth Amendment right to trial.6 The Court, however, did not toss the Guidelines scheme in its entirely. Rather, it abrogated those provisions of the SRA that required judges to impose sentences dictated by the Guidelines, thereby rendering the Guidelines advisory.7 Judges therefore are no longer bound by the Guidelines when sentencing those who commit financial frauds or any other federal crime. But they are still required to consider them. Additionally, judges must consider a series of other statutory sentencing factors ranging from the nature and circumstances of the offense to the history and characteristics of the defendant and to any pertinent policy statement issued by the Commission.8 Simply put, judges today are required to impose sentences that fit both the offender and the offense and are supposed to jail defendants for only as long as is “sufficient, but not greater than necessary” to satisfy a host of penal objectives. II. OPERATION OF THE GUIDELINES

Wayne Gosnell is an associate at Clayman & Rosenberg LLP. He previously served as a law clerk to the Honorable William H. Pauley III of the United States District Court for the Southern District of New York and as an Assistant District Attorney in the Bronx District Attorney’s Office.

The Guidelines designate all federal offenders – whether international terrorists, drug dealers or small businessmen – to one of 43 “offense levels.”9 Those offense levels are fixed largely by measuring ostensibly discernible quantities, such as the amount of drugs in narcotics cases or, in cases involving fraud, the amount of money lost. Logically, this makes sense. A drug dealer who sells ten kilos of cocaine is surely a worse offender and deserving of a longer prison term than someone who sells only one. Likewise, a corporate executive who steals $100,000 has done less damage, and is generally deserving of a lesser punishment, than one who pockets $1,000,000. Consideration of a number of other factors, like the role that an individual played in a crime, can also result in a greater offense level. Higher offense levels indicate more serious conduct. They also specify longer prison terms. Take, for example, an accounting department employee who steals $50,000 from his employer’s bank account. His offense level calculation – like all calculations unContinued on next page

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Low-Level Fraud Continued from previous page

Most of the individuals who commit these crimes are first-time offenders. And virtually none of their misconduct involves even a hint of violence. … Yet most of these fraudsters are sent off to serve time behind bars – the average sentence in 2014 for financial fraud was 27 months.

der the Guidelines – starts with a “base offense level.” For financial frauds, that “base offense level” is 6 (unless the crime carries a statutory maximum prison term of 20 years or more).10 Additional “points” are added for various “specific offense characteristics” and other “enhancements,” such as 6 “points” to reflect the stolen $50,000,11 2 “points” if he used “sophisticated means” to accomplish his criminal objective12 and 2 more “points” if he “abused a position of trust” or “used a special skill” that “significantly facilitated the commission or concealment of the offense.”13

Based on that calculation alone, our accountant would have an adjusted Guidelines offense level of 16, for which the Guidelines recommend 21 to 27 months behind bars. Any number of other “specific offense characteristics” or other “enhancements” could increase that offense level and, thus, the amount of time to which he is exposed. (If our accountant pleads guilty and accepts responsibility for his offense, he will receive a 2 “point” reduction if his adjusted Guidelines offense level is below 16 and a 3 “point” reduction if it is 16 or above.14) III. CONGRESSIONAL INTENT IN PASSING THE SRA In enacting the SRA, lawmakers observed (among other things) that “[p]rison” should be “reserved for those violent and serious criminal offenders who pose the most dangerous threat to society.”15 It also noted that “alternative sentences, such as restitution and community service” will satisfy the interests of society and individual victims of crime in cases involving “nonviolent and nonserious offenders.”16 That Congressional intent is formally memorialized in the SRA itself, which provides that the Commission must: insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense, and the general appropriateness of imposing a term of imprisonment on a person convicted of a crime of violence that results in serious bodily injury.17

IV. THE COMMISSION’S REJECTION OF CONGRESSIONAL INTENT REGARDING THE APPROPRIATENESS OF PRISON FOR NON-VIOLENT, NON-SERIOUS OFFENDERS The Commission effectively rejected – unilaterally and without any empirical support – Congress’s directive when it actually sat down to craft the Guidelines. In particular, the Commission found that “courts sentence federal offenders to probation an inappropriately high percentage of offenders guilty of certain economic crimes, such as theft, tax evasion, antitrust offenses, insider trading, fraud, and embezzlement, that in the [Sentencing] Commission’s view are ‘serious.’”18 It also found that the types of sentences imposed before the Guidelines “would continue to be ineffective” if it were to permit “courts to impose probation instead of prison in many or all such cases.”19 The Commission “solved” this “problem” of its own making by drafting the Guidelines so as to characterize “every theft, tax evasion, antitrust, insider trading, fraud, and embezzlement case [as] otherwise serious, and thus no more eligible for a sentence of probation, even when committed by a first-time offender, than would be a crime of violence.”20 As a result, and as described by Professor Kate Stith and Judge José A. Cabranes seventeen years ago: “While before the Guidelines nearly 50 percent of federal defendants were sentenced to probation alone, that figure is now less than 15 percent.”21 In December 2012 the Commission reported that that figure is now less than six percent.22 V. WHAT DEFENSE LAWYERS SHOULD DO FOR CLIENTS CONVICTED OF LOW-LEVEL ECONOMIC OFFENSES Plainly Congress – in passing the SRA and creating the Commission – did not want a sentencing system in which first

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Why? Largely because the United States Sentencing Commission has failed to carry out its statutory mandate. time, non-violent offenders would serve time, no less the significant jail terms associated today with financial offenses. But that is exactly what it got. Nevertheless, hope is not lost for those convicted of low-level financial frauds. Rather, there are a number of persuasive arguments upon which a request for a non-jail sentence can be based, even in the face of Guidelines that suggest incarceration for virtually all financial offenses. First, practitioners should – in both their written submissions and oral presentations – educate judges as to Congress’s intent that prison should be reserved only for violent and serious criminal offenders who pose an actual danger to society. Attorneys should also argue that alternatives to incarceration –

such as probation, home confinement, community service or financial penalties (fines, forfeiture and restitution) – are often sufficient, but not greater than necessary, to satisfy the four generally accepted purposes of punishment (retribution, incapacitation, deterrence and rehabilitation). Additionally, lawyers should remind judges that the “dramatic decrease in sentences of probation since the passage of the SRA” is a “significant contributor” to the ballooning federal prison population on which politicians (among others) are focused today.23 Second, practitioners should make clear that choosing probation (or some other form of non-custodial punishment) instead of prison does not mean that an offender will get off easy or go unpunished. Rather, the U.S. Supreme Court itself recognized that probation is a significant punishment, finding Continued on next page

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

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Low-Level Fraud Continued from previous page

in Gall v. United States24 that while “custodial sentences are qualitatively more severe than probationary sentences of equivalent terms,” offenders sentenced to:

Nevertheless, hope is not lost for those convicted of low-level financial frauds. Rather, there are a number of persuasive arguments upon which a request for a non-jail sentence can be based, even in the face of Guidelines that suggest incarceration for virtually all financial offenses.

probation are nonetheless subject to several standard conditions that substantially restrict their liberty. Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. Most probationers are also subject to individual “special conditions” imposed by the court.25 Third, practitioners, where appropriate, can compare the prison term recommended in federal court by the Guidelines to the sentences available in state court for similar offenses, and then argue that the available state sentences undermine the Commission’s view that low-level frauds are “serious.”26 So, for example, in New York, a person who steals between $3,000 and $50,000 can be convicted of grand larceny in the third-degree, a class D felony.27 A sentencing judge would have the discretion – after considering New York’s statutory sentencing factors such as the “nature and circumstances of the crime” and the “history, character and condition of the defendant,”28 which are consistent with the federal sentencing factors set forth in 18 U.S.C. § 3553(a) – to sentence such an offender to probation.29

Fourth, attorneys should point out that linking jail time to dollars lost severs many of the ties to the factors courts are supposed to consider when determining and imposing sentence. Oftentimes probation or home confinement can be enough to deter prospective low-level financial fraudsters. Moreover, economic offenders pose little future threat because they are generally stripped of the powers that would permit continued or prospective criminal conduct. For example, securities industry professional are stripped of their licenses upon conviction of a felony. Likewise, those who steal from public, private or non-profit organizations likely will never be hired for or hold another position in which they have access to such funds. Finally, practitioners should highlight that the shorter sentences than called for by the Guidelines that have been imposed on those convicted of big-time frauds provide plenty of support for the imposition of non-jail sentences on those convicted of small financial offenses. Some examples make the point. In 2006, Richard Adelson, the former president of Impath Inc., a laboratory services company that collapsed as a result of an accounting fraud, was convicted of securities fraud and filing false documents. The Guidelines recommended a sentence of life. Instead, Adelson was sentenced to 42 months in prison.30 Lennox Parris and Lester Parris, co-directors of a New York-based water company, were convicted of securities fraud in connection with a scheme to boost the value of their company’s stock with a series

Economic offenders pose little future threat because they are generally stripped of the powers that would permit continued or prospective criminal conduct. For example, securities industry professional are stripped of their licenses upon conviction of a felony.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

of press releases misrepresenting its success in scoring distribution contracts. They were each sentenced to five years imprisonment, even though they faced 30 years to life under the Guidelines.31 And Ronald Ferguson, the former CEO of reinsurer General Re, who faced life imprisonment for his role in a rotten deal to artificially inflate the balance sheet of insurance giant AIG, was sentenced to two years in jail.32 VI. CONCLUSION Given today’s economic climate, it’s hard to feel pity for those who commit even the most minor of financial offenses. In light of the Commission’s failure to implement Congress’s directive when putting the Guidelines together, though, a mite of sympathy may be what they deserve. And articulating that failure to sentencing judges may ultimately save the day and help you – the practitioner – save your clients from having to do time behind bars. A See http://www.ussc.gov/sites/default/files/pdf/research-and-publications/ federal-sentencing-statistics/guideline-application-frequencies/2014/Use_of_ SOC_Guideline_Based.pdf at 9.

See http://www.ussc.gov/research-and-publications/annual-reports-sourcebooks/2014/sourcebook-2014.

See http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/ manual-pdf/Sentencing_Table.pdf.

U.S.S.G. § 2B1.1(a)(2).

U.S.S.G. § 2B1.1(b)(1)(D).

U.S.S.G. § 2B1.1(b)(10.

U.S.S.G. § 3B1.3.

U.S.S.G. § 3E1.1(a) and (b).

Pub. L. No. 98-473, §§ 217(a), 239, 98 Stat. 1987, 2039 (1984).

Id.

18 U.S.C. § 994(j).

U.S.S.G. Ch.1, Pt. A, § 4(d) (1987) (emphasis added?).

Id.

United States v. Leitch, 2013 U.S. Dist. LEXIS 27796, at *9, 11 Cr. 609 (JG), (E.D.N.Y. 2013). 20

Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 62 (1998). 21

U.S. Sentencing Comm’n, Report on the Continuing Impact of United States v. Booker on Federal Sentencing 5 (2012). 22

Leitch, 2013 U.S. Dist. LEXIS 27796, at *8-9.

552 U.S. 38 (2007).

Gall, 552 U.S. at 48-49.

United States v. Brennan, 468 F.Supp.2d 400 (E.D.N.Y. 2007).

N.Y. Penal Law § 155.35.

N.Y. Penal Law § 65.00.

See N.Y. Penal Law § 155.35 (grand larceny) and §§ 60.01(2)(a)(i) and 60.05(5). 29

28 U.S.C. § 994(j) (emphasis added).

530 U.S. 466 (2000).

543 U.S. 220 (2005).

Id. at 245.

Id. at 245-46.

18 U.S.C. § 3553(a).

United States v. Adelson, 441 F.Supp.2d 506 (S.D.N.Y. 2006).

United States v. Lennox Parris and Lester Parris, 573 F.Supp.2d 744 (E.D.N.Y. 2008). See http://www.reuters.com/article/2008/12/16/us-usa-crime-generalreidUSTRE4BF5F120081216. 32

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Beyond Microsoft: Criminal Rule 4 and the Justice Departmentâ&#x20AC;&#x2122;s Reach for Global Criminal Jurisdiction By Patrick Oâ&#x20AC;&#x2122;Donnell

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

he eyes of much of the world were focused on the Federal Courthouse in Foley Square in New York City on September 9, when the Second Circuit heard argument in In the Matter of a Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp.1 And rightly so. The Court of Appeals reviewed a decision by a New York District Court holding Microsoft in contempt for not producing email stored in an Irish data center, for a customer identified as a resident of Ireland, protected by Irish and European privacy law, in response to a warrant issued pursuant to the Stored Communications Act.2 The potential impact of the decision is dramatic. If the U.S. Government prevails, it will be able to reach data stored anywhere in the globe so long as it can effect service of a warrant in the U.S. on a corporation that controls that data. And, as Microsoft and many amici have pointed out,3 foreign governments will certainly feel emboldened to act in parallel, using their domestic leverage over multinationals to reach data stored in the United States. The case deserves the widespread attention it received.4

But while the media focuses on the threat that the U.S. Government may end-run other countries’ privacy and dataprotection laws through search warrants served on domestic affiliates, a more fundamental expansion of Justice Department extraterritorial reach is underway. The U.S Government this year has made great strides toward establishing criminal jurisdiction over foreign companies themselves – not just evidence located overseas – simply by giving them notice. AMENDING THE CRIMINAL RULES The Department of Justice has proposed amending the Federal Rules of Criminal Procedure to liberalize both Rule 4’s restrictions on service of foreign companies and Rule 41’s provisions that govern the issuance of a warrant to search a computer anywhere in the world.5 Like the Microsoft case, the Rule 41 amendments have drawn scrutiny,6 and the Rules Committee has proposed allowing U.S. Courts to order extraterritorial computer search warrants only under limited circumstances.7 The proposed liberalization of Rule 4, however, has largely flown under the radar, despite its remarkable implications. Current Rule 4 allows service of a summons (or warrant) “within the jurisdiction of the United States or anywhere else a federal statute authorizes an arrest.”8 When serving an organization, like a corporation, Rule 4 currently requires the

government to follow up delivery to an organization’s officer or agent by mailing to its “last known address within the district or to its principle place of business elsewhere in the United States.”9 The Justice Department asked that service outside the United States be expressly authorized and that the mailing requirement be dropped in the case of overseas corporations, which sometimes have never had a US address.10 More importantly, the Department also asked for a catch-all provision allowing it to serve a summons on an organization outside the United States “by other means reasonably calculated to give notice, including… other means upon request of an attorney for the government, as the court orders.”11 The U.S. Judicial Conference’s Advisory Committee’s Rule 4 proposal gives the Justice Department even more than it asked for. The Conference’s Criminal Rules Committee approved the proposal, but it dropped the clause requiring judicial approval before recourse to the catch-all. The proposed amendment now contains several noncontroversial but somewhat burdensome alternatives for extraterritorial service (service as authorized by foreign law, stipulation, letters rogatory, or pursuant to international agreement). Most importantly, it gives the government the simpler alternative of just giving the defendant organization notice of charges with no need for court approval.12 Although the Committee papers do not contain a detailed Continued on next page

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Global Criminal Jurisdiction Continued from previous page analysis of what sort of service might give notice in fact, the black letter of the text suggests that an email might suffice under some circumstances. The Committee appears to have dropped the judicial-approval requirement for a paradoxical reason: it understands that there are serious legal problems with the government’s proposal to serve U.S. judicial process overseas, outside channels provided by the target’s home-country law or international agreement. As the Committee’s Reporters write, “[s]ervice of a criminal summons in the territory of another nation without its consent risks not only offense to the law of that nation, but also a violation of international law.”13 The Reporters quote a leading treatise on international law as warning generally that “a State may not act within the territory of another state” and “a summons may not be served… on the territory of another state, except under the terms of a treaty or other consent given.”14 The Committee decided that requiring judicial approval before serving a summons outside the provisions of foreign law or treaty “raised difficult questions of international law and the institutional roles of the courts and the executive branch.”15 Moreover, they note that eliminating the provision for prior judicial approval may even be preferable from a defendant’s point of view, since a post-service challenge would not bear the practical burden of persuading a judge to revisit a prior ruling rather than face an issue of first impression in the case.16

The Justice Department proposed changing Rule 4 precisely to get leverage over foreign corporations that have historically been immune to U.S. process.

The amended Rule 4 proposal will work a remarkably substantive effect. Under current law, a summons from a federal court cannot be served on an overseas defendant who cannot be found within U.S. jurisdiction. A foreign corporation that chooses to have no presence in this country cannot be made to respond to U.S. Courts until and unless it comes physically within U.S. jurisdiction. This is consistent with international law, as noted by the Conference’s Criminal Rules Committee. It is also consistent with traditional American jurisprudence, which has always respected different sovereigns’ territorial boundaries and the resultant limits on the jurisdiction of those sovereigns’ courts. As Justice Story explained, The courts of a state, however general may be their jurisdiction, are necessarily confined to the territorial limits of the state. Their process cannot be executed beyond those limits; and any attempt to act upon persons or things beyond them, would be deemed an usurpation of foreign sovereignty, not justified or acknowledged by the law of nations. Even the court of king’s bench in England, though a court of general jurisdiction, never imagined, that it could serve process in Scotland, Ireland, or the colonies, to compel an appearance, or justify a judgment against persons residing therein at the time of the commencement of the suit. This results from the general principle, that a court created within and for a particular territory is bounded in the exercise of its power by the limits of such territory. It matters not, whether it be a kingdom, a state, a county, or a city, or other local district. If it be the former, it is

Patrick O’Donnell is a partner with the firm of Harris, Wiltshire & Grannis LLP, where he focuses on government enforcement matters, particularly white-collar criminal defense, and complex civil litigation. His practice often addresses efforts to apply U.S. law extraterritorially, representing foreign defendants in U.S. federal criminal matters and federal civil litigation.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

1 In The Matter of a Warrant to Search a Certain Email Account Controlled and Maintained by Microsoft Corporation, No. 14-2985 (2d Cir. filed Dec. 4, 2013).

necessarily bounded and limited by the sovereignty of the government itself, which cannot be extra-territorial; if the latter, then the judicial interpretation is, that the sovereign has chosen to assign this special limit, short of his general authority.17

2 Codified at 18 U.S.C. § 2703. 3 See Brief of Appellant at 1-2, Microsoft Corp v. United States, No. 14-2985 (2d Cir. Dec. 8, 2014). 4 The docket shows almost 100 amici lined up against the government, including a who’s who of major American media and technology companies, business groups like the Chamber of Commerce and National Association of Manufacturers, public-interests groups like the ACLU, and foreign interests, like Ireland and a European member of parliament. 5 See Agenda Book: Advisory Committee on Rules of Criminal Procedure – May 2015, Federal Judicial Conference, Tab 5 (Full Text of Public Comments on Proposed Amendments to Rules 4, 41, and 45) (March 16-17, 2015), http://www.uscourts.gov/ rules-policies/archives/agenda-books/advisorycommittee-rules-criminal-procedure-may-2015 (hereinafter March Judicial Conference Papers). 6 See id. 7 See March Judicial Conference Papers, Tab 3B (Subcommittee Report – Rule 41: Proposed Amendment with Revisions Proposed by Subcommittee) at 108 (allowing court to issue remoteaccess seizure warrant where the subject computer’s location has been concealed by technological means or, in a case under 18 U.S.C § 1030(a)(5), computers in more than four judicial districts are damaged). 8 Fed. R. Crim. P. 4(c)(2). 9 Fed. R. Crim. P. 4(c)(3)(C). 10 Letter from Lanny A. Breuer, Ass’t Att’y Gen., to Hon. Reena Raggi, Chair, Advisory Committee on Criminal Rules (Oct. 25, 2012) (hereinafter “Breuer Letter”), in Agenda Book: Advisory Committee on Rules of Criminal Procedure – October 2013, Federal Judicial Conference, at 139 (Oct. 18, 2013) http://www.uscourts.gov/file/15533/ download (hereinafter “October Judicial Conference Papers”). 11 Breuer Letter at 7. 12 See March Judicial Conference Papers, Tab 2B (Subcommittee Report – Rule 4: Proposed Amendment as Published) at 63. 13 Memorandum from Sara Sun Beale and Nancy King, Reporters, to Members, Criminal Rules Advisory Committee (Sept. 24, 2013), in October Judicial Conference Papers at 117. 14 Id. at 7-8 (citation omitted). 15 Id. at 7. 16 Id. at 9.

This traditional view, that service within the physical jurisdiction of a court is meaningful, may have been eroded by the Supreme Court’s famous International Shoe18 decision on personal jurisdiction in the civil context. But, even in civil cases, territorial jurisdiction remains an important factor in personal-jurisdiction analysis, and service of process continues to be a distinct issue in determining a court’s power to compel a defendant to respond.19 Under current law, which would look familiar to Justice Story, an unserved summons addressed to a foreign defendant has very little legal consequence. It is a classic tree falling in the woods: such a defendant owes no more duty to an American court to come to this country to respond than would an American receiving notice of a summons from a Malaysian tribunal.20 This is a legal reality, not just a practical one, that reflects a dichotomy between the relationship of an overseas citizen to his own sovereign versus that of a non-citizens overseas. Although case law on the point is sparse, the Supreme Court has recognized that “[t]he United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal… It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned.”21 The proposed Rule 4 amendment will have an immediate practical impact: foreign corporations without a U.S. presence will now have to come to the United States and hire U.S. lawyers to respond to Justice Department criminal charges. The Justice Department has threatened to use a number of specific tools to force recalcitrant foreign corporations to come to the United States to answer charges, once a vehicle for extraterritorial service is established: contempt orders, injunctive relief, parallel proceedings, seizure and forfeiture orders, economic and trade sanctions, debarment from federal programs, even the extraordinary specter of a criminal trial with the absent corporation defended by appointed counsel.22 The proposed Rule change thus upends the traditional understanding of the physical limits of an American court’s jurisdiction. And this is the government’s goal. The Justice Department proposed changing Rule 4 precisely to get leverage over foreign corporations that have historically been immune to U.S. process.23 Despite the Rules Subcommittee’s expectation that foreign defendants will still be able to raise substantive challenges, the new ability to serve a summons overseas will likely also embolden the government to extend “fugitive disentitlement doctrine” to keep courts from hearing arguments from counsel representing corporations which never flee at all but become constructive fugitives by failing to come to this country to answer a summons.24 Notably, this is a departure from civil practice. As the Criminal Rules Committee noted, the counterpart civil service rule has a Continued on page 30

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

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Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Global Criminal Jurisdiction Continued from page 27 much narrower catchall, allowing extraterritorial service “by other means not prohibited by international agreement, as the court orders.”25 The proposed new criminalservice catchall requires neither compliance with international agreement nor court approval. The proposed amendment will make it easier to effect extraterritorial service of a criminal summons than a civil one. The Committee suggests that foreign corporations have an adequate remedy in their right to litigate service issues post-service, explaining that “nothing in the proposed amendment addresses or limits any authority of the court to allow a special appearance to contest service … nor does it address the ability of a corporate defendant to contest notice in a collateral proceeding.”26 But this misses a salient point. The de facto, and to some extent de jure, impact will be the expansion of U.S. extraterritorial criminal jurisdiction, at least insofar as a foreign corporation with no U.S. presence will now lose its right under current law to simply ignore a criminal summons from a U.S. Court without jurisdiction. The DOJ-proposed amendments to Rules 4 and 41 have been approved by the Judicial Conference’s rules committee and are currently pending final Judicial Conference review, the last stop before Supreme Court consideration.27 While forty-six parties commented on the Rule 41 change allowing for some issuance of a domestic warrant to reach material on overseas computers – mostly opposed28 – only six commented on the Rule 4 change. Of these, five, including the National Association of Criminal Defense Lawyers, favored the proposal. The only opponent: a law firm representing a foreign company subject to U.S. indictment.29 The Supreme Court considers them next, but it generally accepts the recommendations of the Judicial Conference in such matters. Absent a very surprising development, these changes will likely take effect in December, 2016.30 LOOKING FORWARD Once the new rule takes effect, counsel defending foreign corporations served under the new catch-all will have to consider whether the change falls afoul of the Rules Enabling Act, which forbids the Supreme Court from promulgating rules that “abridge, enlarge or modify any substantive right.”31 The government will point to some significant favorable precedent. The Supreme Court has specifically approved rules expanding service options under the civil rules, including those having the effect of changing the venue to which a civil defendant must respond, as consistent with the Rules Enabling Act.32 And, the Court has never rejected a rules change as beyond the scope of the Rules Enabling Act.33 But, as noted above, the effort to extend U.S. jurisdiction extraterritorially for service of process is in tension – to say the least – with both traditional American law on territorial limits of service and international law. Although the Judicial Conference did not analyze this issue, courts will likely have to grapple with it once the government begins to exploit its new power. This budding evolution in U.S. law did not come about by accident. To the contrary, under President Obama and former Attorney General Eric Holder, the Justice Department has waged a steady campaign to expand extraterritorial application of

17 Picquet v. Swan, 19 F. Cas. 609, 611 (C.C.D. Mass. 1828). The 19th century Supreme Court similarly found that Congress “did not contemplate” potential parties in a foreign jurisdiction “as being within the reach of the process of the courts … ” Toland v. Sprague, 37 U.S. 300, 330 (1838). See also United States v. Union Pac. R.R. Co., 98 U.S. 569, 604 (1878) (explaining that Congress could legislate that “any circuit court—in which the suit may be brought, shall, by process served anywhere in the United States, have the power to bring before it all the parties necessary to its decision”). 18 Int’l Shoe v. Washington, 326 U.S. 310 (1945). 19 See generally Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 108-109 & n.10 (1987) (discussing common law rule, reflected in the Judiciary Act of 1789, depriving courts of power to effect extraterritorial service absent specific legislative authorization and noting that continued effect of such precedent remains open question after International Shoe). See also Burnham v. Superior Court of California, 495 U.S. 604 (1990) (emphasizing continued importance of traditional physical presence analysis in personal jurisdiction analysis). 20 Former President Bush and former British Prime Minister Tony Blair were reportedly found liable for “war crimes” by the Kuala Lumpur War Crimes Tribunal based on the Iraq War. Both men reportedly “ignored the summons sent to them and thus were tried in absentia.” Glen Greenwald, Bush and Blair Found Guilty of War Crimes for Iraq Attack, Salon (Nov. 23, 2011), http://www.salon. com/2011/11/23/bush_and_blair_found_guilty_ of_war_crimes_for_iraq_attack/ 21 Blackmer v. United States, 284 U.S. 421, 437-38 (1932). 22 Memorandum from Jonathan J. Wroblewski, Office of Policy and Legislation, and Kathleen A. Felton, Deputy Chief, Appellate Section, Crim. Div., U.S. Dept. of Justice to Judge David M. Lawson, Chair, Subcommittee on Rule 4 (Aug. 23, 2013), at 3-6 (hereinafter “Wroblewski and Felton Memorandum”), in October Judicial Conference Papers at 151. 23 See Breuer Letter. 24 See United States v. Catino, 735 F.2d 718 (2d Cir. 1984). 25 Fed. R. Civ. P. 4(f )(3). See also Fed. R. Civ. P. 4(h)(2) (partially incorporating 4(f )). 26 Agenda Book: Committee on Rules of Practice and Procedure – May 2015, Federal Judicial Conference, Tab 2A (Report of the Standing Committee Advisory Committee on Criminal Rules) at 6 (May 6, 2015), http://www.uscourts.gov/file/18038/ download. 27 See Pending Rules Amendments, United States Courts, http://www.uscourts.gov/rules-policies/ pending-rules-amendments. 28 See March Judicial Conference Papers, Tab 3C (Subcommittee Report – Rule 41: Summary of Public Comment).

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

29 See March Judicial Conference Papers, Tab 2C (Subcommittee Report – Rule 4: Summary of Public Comment). 30 See Overview for the Bench, Bar, and Public, United States Courts, http://www.uscourts.gov/ rules-policies/about-rulemaking-process/howrulemaking-process-works/overview-bench-barand-public (describing the rulemaking process and timeline). 31 28 U.S.C. § 2072(b). See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010) (analyzing meaning of “substantive” under the Act). 32 See Hanna v. Plumer, 380 U.S. 460 (1965) (approving change to method of service as consistent with REA); see Miss. Pub. Corp. v. Murphree, 326 U.S. 438 (1946) (approving change of service provision that effected venue change). 33 But see Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011) (rejecting lower court’s expansive construction of Civil Rule 23 as beyond the Rules Enabling Act). 34 See Administration Strategy on Mitigating the Theft of U.S. Trade Secrets, Exec. Office of the President of the United States (Feb. 20, 2013), https://www.whitehouse.gov//sites/default/ files/omb/IPEC/admin_strategy_on_mitigating_the_theft_of_u.s._trade_secrets.pdf. Annex B, a summary of Justice Department trade secrets cases, is especially illuminating. 35 See Eric Holder, U.S. Att’y Gen., Address at the African Union Summit (July 25, 2010) (transcript available at http://www.justice.gov/opa/speech/ attorney-general-holder-african-union-summit). 36 See Ruling on Defendant’s Second Motion to Dismiss the Indictment, United States v. Hoskins, No. 3:12cr238 (JBA) (D. Conn. Aug. 13, 2015) (granting partial dismissal of FCPA indictment against foreign national). 37 The District Court judge was not impressed. See United States v. Sidorenko, No. 3:14-CR-00341CRB (N.D. Cal. 2015). 38 One interesting side effect is that the new Criminal Rules will likely moot the Justice Department’s parallel efforts to establish precedent for serving an overseas corporation by delivery to a separate U.S. affiliate, borrowing the concept of alter ego liability from civil cases. See United States v. Sinovel Wind Group Co., 974 F.3d 787, 790-93 (2015). 39 See Wroblewski and Felton Memorandum at 3.

U.S. law. The White House Office of the U.S. Intellectual Property Enforcement Coordinator has emphasized increasing criminal prosecution of overseas defendants to protect U.S. companies’ intellectual property.34 Former Attorney General Holder launched a “Kleptocracy Asset Recovery Initiative” housed in the Criminal Division that has pursued massive forfeitures against allegedly corrupt foreign officials.35 The Fraud Section continues to push the envelope of extraterritorial jurisdiction in cases under the Foreign Corrupt Practices Act (FCPA), sometimes too far.36 This year, the government even attempted a non-FCPA bribery case based on conduct occurring entirely in Canada, involving citizens or nationals of Ukraine, Switzerland, Canada, Venezuela, Dubai, St. Kitts & Nevis – but no Americans.37 Once the Rule amendments go into effect, foreign companies, and, likely, some U.S. and foreign corporate lawyers, will be in for a surprise. No longer can they control or limit their direct exposure to American criminal law by observing traditional corporate formalities that maintain the legal distinction of an American affiliate. 38 The U.S. Justice Department may soon have the de jure and de facto power to force corporations incorporated, headquartered, or operating anywhere in the world, to formally respond to American criminal charges in an American court, regardless of their degree of contact with America. Once before the court, such companies should, of course, have the same legal rights as American companies, including the right to invoke international law or U.S. due process principles to defeat jurisdiction or quash service in a given case. But they will no longer have the right to simply ignore a sovereign whose territory they have scrupulously avoided. Given the Justice Department’s broad campaign to expand its extraterritorial reach, and plans it already revealed to the Judicial Conference to combine the new overseas service power with ancillary tools to bring foreign corporation defendants to heel, the only thing that seems clear is that extraterritorial criminal cases, once rare, will continue their trajectory of steady growth. How will the rest of the world react to the continued creeping expansion of U.S. worldwide criminal jurisdiction? Will France, Russia, China or others respond in kind, exposing American companies, not just their domestic affiliates, to direct criminal liability under their laws? Stay tuned. The Justice Department assured the Judicial Conference that it will use this new service power judiciously, in consultation with the State Department and with a mind for the potential impact on foreign affairs.39 As with U.S. efforts to search computers overseas, it remains to be seen whether the rest of the world shares the U.S. Justice Department’s views about the appropriate scope of American criminal-law jurisdiction. A (See related article on next page)

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Sinovel and the Alter Ego Service Gambit By Patrick O’Donnell

Before its victory on Rule 4 at the Criminal Rules Committee, the Justice Department was engaged in a several-year effort to create case law precedent for another way to reach foreign companies without a U.S. presence: accomplish service through delivery on a U.S. affiliate corporation, on the theory that one corporation is merely the alter ego of the other. One recent subject of this campaign is a Chinese company named Sinovel. Sinovel makes wind turbines and competes with some American companies that also make wind turbines. The U.S. alleges that Sinovel stole source code from an American rival, American Superconductor, that allowed wind turbines to better deal with voltage sags in the electrical grid. In particular, the U.S. alleges that two employees, who were Chinese nationals working in China for Sinovel, bribed a Serbian national, working in Austria for American Superconductor, to steal files stored on a Wisconsin server using the internet. The government charged the defendants – the individuals, Sinovel’s U.S. subsidiary, and Sinovel’s Chinese parent company – with conspiracy to commit criminal copyright infringement and trade-secret theft, a substantive trade-secret theft count, and a wire-fraud count.1 Interestingly, the same underlying trade-secret issues are being litigated concurrently in the Chinese courts, where Sinovel is apparently winning.2 Sinovel China had no U.S. presence of its own, but, of course, its U.S. subsidiary did. Although the U.S. subsidiary was a separate juridical entity, the government attempted to serve the Chinese parent by delivering the criminal summons to its U.S. subsidiary.3 But, as noted in the main article, Rule 4 specifies how the government is to serve a criminal summons, and it does not provide for service on a target corporation by delivery to a different corporation which the target corporation wholly owns.4 A magistrate5 and eventually the district court6 approved this relatively novel manner of serving a criminal summons on a foreign corporation, despite the magistrate judge’s recognition that he faced “an issue that is not well developed by the federal courts and for which there is no clear answer.”7 Denying the Chinese company’s motion to quash service, the court borrowed alter ego analysis from Delaware corporate law. It found that, because the purpose of Sinovel USA was to do the bidding of Sinovel China, the government could serve the foreign parent by delivering a summons to the U.S. subsidiary.8 Moreover, the court found that a lower alter ego standard applied when attempting to establish personal jurisdiction than when

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

imposing substantive liability, declining to require any showing that the American subsidiary’s role involved any fraud or unfairness.9

1 Indictment, U.S. v. Sinovel Wind Grp. Co., Ltd. et al., No. 13-cr-00084 (W.D. Wis. June 27, 2013).

The magistrate’s description of the law on this topic as “not well developed” is an understatement. In fact, it’s a case study in the birth of new federal common law. The parties, magistrate, and district court combined could find only six cases that had ever considered the possibility of using an alter ego theory from corporate law to serve a criminal summons on a foreign corporation by delivering it to a legally separate American subsidiary.10 Sinovel became only the third district court case in history to approve this novel method of extending U.S. criminal jurisdiction over foreign corporations.11 None of the three cases approving the theory predate the Obama Administration. The oldest cited opinion even discussing the concept was from 2007.12

2 Bennie DiNardo, Chinese Court Dismisses American Superconductor Case, The Boston Globe (Apr. 24, 2015), https://www.bostonglobe.com/business/2015/04/24/chinese-court-dismisses-americansuperconductor-case/sfmYx6muq0vkonXG49vfjN/ story.html.

The most significant aspect of Sinovel is that the Chinese parent company, appearing specially through U.S. counsel, sought appellate review through a simultaneous appeal and petition for mandamus.13 This past summer, the 7th Circuit gave the Justice Department its biggest court victory yet in its campaign to establish a right to assert criminal jurisdiction over foreign companies through service on U.S. subsidiaries. The Court held that the denial of Sinovel China’s motion to quash was not a reviewable final order, so it lacked jurisdiction to hear Sinovel’s appeal.14 Similarly, the Court denied mandamus because it found that conventional post-judgment appeal would give Sinovel China an adequate remedy for any error the district court might have made regarding jurisdiction. While the 7th Circuit’s decision rests entirely on procedural rather than substantive grounds, it remains the first appellate imprimatur of any sort on the Justice Department’s alter ego theory of criminal service of process. The Department will nevertheless surely cite it to doubtful trial judges considering its argument that delivering a summons to an American affiliate effects service on an overseas parent company.

7 Sinovel Magis. Op. at 1.

3 Opinion and Order at 11, Sinovel, No. 13-cr00084 (W.D. Wis. May 27, 2014) (“Sinovel Magis. Op.”). 4 Fed. R. Crim. P. 4(c)(3)(C). 5 Sinovel Magis. Op. 6 Order and Opinion, Sinovel, No. 13-cr-00084 (W.D. Wis. Sep. 10, 2014) (“Sinovel Dist. Ct. Op.”). 8 Id. at 13-20. 9 Id. at 21-24. 10 See Sinovel Dist. Ct. Op. at 3-4. 11 See U.S. v. Chitron Elecs., Ltd., 668 F.Supp.2d 298 (D. Mass. 2009) and U.S. v. The Pub. Warehousing Co., 2011 WL 1126333 (N.D.Ga., Mar. 28, 2011). 12 See Sinovel Dist. Ct. Op. at 3-4 (collecting cases). 13 U.S. v. Sinovel Wind Grp. Co., Ltd., 794 F.3d 787, 789 (7th Cir. 2015). 14 Id. at 794.

The pending amendment of Rule 4 to allow service on an overseas corporation by simply giving it notice of the indictment or complaint may spell the end of the alter ego campaign. If the liberalized Rule 4 is upheld by the courts, then there’s no reason for the Justice Department to rely on the more exacting alter ego analysis. If, however, the rule change does not survive judicial review or (less likely) is not adopted by the Supreme Court or rejected by Congress, then the Justice Department can still fall back on Sinovel and the handful of alter ego service cases. Counsel representing foreign corporations facing U.S. criminal charges should still be aware of the alter ego service alternative. A

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

NYSACDL’s Prosecution and Judicial Complaint Center (PJCC)

ou are making your fourteenth appearance in two years with your jailed client on his rape case. Unusually, at this appearance the assistant district attorney’s supervisor is also in court. When the case is called, the supervisor announces that she is providing to you a report that “was recently found in her office files” from the ME’s office of a DNA test that was performed on a semen stain found on the underwear the complainant was wearing on the evening of the alleged rape. You quickly turn to the Conclusion section of the report and see that your client has been excluded as a possible contributor of the DNA. The report is nearly two years old. Elsewhere in the state, a criminal defense lawyer in a suburban county and regular reader of appellate decisions notes that for the fifth time in about three years the Appellate Division has reversed a case from the same District Attorney’s Office on the basis of prosecutorial misconduct at trial. Digging a little further the lawyer discovers that the same ADA prosecuted each of the reversed cases. The lawyer also knows that this same ADA has just been promoted to a more senior position. The lawyers in both of the above cases want to take action; they want to do something to hold the ADAs and their offices accountable for their misconduct. On the other hand, both defense lawyers are regular practitioners with the respective District Attorney’s offices. They are justifiably concerned about both overt and more likely, covert, retaliation should they become complainants. What can they do? The Prosecution and Judicial Complaint Center (PJCC) of NYSACDL

was created and exists to handle situations such as those described in the above scenarios, both of which are derived from actual matters reviewed by the PJCC. Reproduced below are the PJCC’s guidelines. The lawyers serving on the PJCC want all members of New York’s criminal defense community, whether members of NYSACDL or not, to know that the PJCC is available to act to assure that egregious prosecutorial and judicial misconduct is addressed and, hopefully, redressed. The PJCC can act in its own name and with the

authority of NYSACDL, so as to reduce possible concerns of retaliation that might befall an individual making a disciplinary complaint about prosecutors or judges. The PJCC urges all NYSACDL members to unhesitatingly refer serious instances of misconduct to the Committee. NYSACDL members should also publicize the PJCC’s mission and existence to the criminal defense bar generally. Together we can all work for a better and fairer criminal justice system.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

The Prosecution and Judicial Complaint Center of the NYSACDL 1. General Purpose The NYSACDL is dedicated to “[p] romote the proper administration of criminal justice, to protect individual rights and improve the criminal law, its practices and procedures and to enlighten the public as to the point of view of criminal defense lawyers and the issues in which they are concerned.” In order to accomplish these goals, the NYSACDL has established a Prosecution and Judicial Complaint Center (PJCC). The PJCC will receive and screen complaints or reports concerning prosecutors and judges and, where appropriate, will make referrals to a disciplinary authority for action. The existence of the PJCC will encourage the members of NYSACDL and others to report behavior that is contrary to the interests of justice.

2. Definition of professional and ethical misconduct a. Misconduct which will be addressed by the PJCC includes the actions of prosecutors and judges in the execution of their professional duties. b. The PJCC will review allegations or reports of material violations or intentional attempts to violate the Lawyer’s Code of Professional Responsibility or the Code of Judicial Conduct and, where appropriate, will make referrals to a disciplinary authority.

3. Composition of the PJCC Panel: a. Chair of the PJCC: An attorney with at least 20 years of unin-

terrupted legal experience and recognized competence in the field of Criminal Law and/or legal ethics shall be appointed to Chair the PJCC by the President. The appointment to this position shall be for a term of two years, renewable for no more than two consecutive terms at the discretion of the Executive Committee of NYSACDL. b. PJCC Panel Composition: The President, in consultation with the Chair, shall appoint a Panel of seven members: the Chair, the President-elect, and five other persons, at least three of whom shall have ten years of uninterrupted Criminal Law and/or legal ethics experience. Appointments to the Panel, except for the Presidentelect, shall be for two years at the discretion of the President. c. Advisors to the PJCC Panel: Regarding any issue related to a complaint or referral, the Panel may consult with experts specializing in Judicial and Prosecutorial Ethics who are not board members of the NYSACDL.

4. Function of the PJCC: a. The PJCC shall be charged with the task of reviewing allegations of misconduct that are referred to it. b. Members of the PJCC shall take an oath of confidentiality relating to the exercise of their function. The PJCC shall adopt rules pertaining to procedural matters before the PJCC Panel. c. Complaints or reports of misconduct by prosecutors or judges may be made by any person.

d. The complaint or report shall be in writing, shall identify the person filing it and the person against whom the complaint or report is made, and shall describe in sufficient detail the alleged misconduct. The complaint may refer to one or more acts of alleged misconduct, but each act of misconduct must be particularized with sufficient detail to permit investigation. e. The complaint shall be made to the Chair of the PJCC and shall remain confidential until and unless the PJCC Panel determines that a referral to an appropriate disciplinary authority is warranted. f. Upon receipt of a complaint or report of misconduct, the PJCC shall commence an investigation of the circumstances of the complaint. g. If the PJCC concludes that reasonable cause exists that a written complaint, report or additional material should issue, then by a vote of not less than five members of the Panel, such complaint shall issue and be forwarded to the appropriate disciplinary authority as soon as practicable. h. In the event the PJCC determines that no written complaint, report or additional material should be forwarded to an appropriate disciplinary authority, such shall be communicated with sufficient explanation to the complainant as soon as practicable. A

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Book Review NOT GUILTY: The Wrongful Prosecution of U.S. Senator Ted Stevens by Rob Cary (Thomson Reuters / NACDL Press, 2014)

Reviewed by NYSACDL Vice President Donald G. Rehkopf, Jr.

Don Rehkopf is an attorney at Brenna Boyce, PLLC, in Rochester, NY. His practice consists of criminal defense, appeals and post-conviction matters, with an emphasis on military defendants and security clearance issues. He is a Vice President of NYSACDL and a frequent CLE lecturer on criminal trial techniques and professional ethics. He has tried over 225 cases to a verdict and argued countless appeals.

How many of our citizens are in prison after trials in which the truth was never provided?1 This is a book that had to be written; the story that had to be told. It chronicles the trial, and perhaps more importantly, the post-verdict proceedings in the federal prosecution of then Senator Ted Stevens of Alaska, in 2008. It tells the story of a prosecution so flawed that the term persecution is more apt. It is authored by Rob Cary, the second chair of Stevens’ defense team with attorney Brendan Sullivan of “I’m not a potted plant” fame, serving as lead counsel. Mr. Cary obviously not only had a birds-eye view of the day-to-day proceedings, but was privy to the behind the scenes skirmishes every experienced trial defense attorney goes through. The book proceeds on three parallel and entwined themes. First and foremost, it is the story of Stevens’ tortured trial and post guilty verdict events. Second, for noncriminal defense lawyers, it is an exposé of the contempt that many prosecutors have for their Brady obligations – including intentional prosecutorial misconduct by the “win at any cost” crowd. Here, add the irony of the fact that Stevens was prosecuted by a team from the DOJ’s “Public Integrity Section.” Finally. The book tells the sordid, and all too familiar story of the government’s use (and abuse) of a snitch which, in this case, was a wealthy businessman indicted for federal corruption charges, under investigation for subornation of perjury and for having sex with an underage minor. For readers who have practiced in federal court in Manhattan, Cary includes an interesting side-story about former District Judge, Michael Mukasey, who was the U.S. Attorney General during the time frame leading up to and during Stevens’ trial.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Nobody wants to read about the honest lawyer down the street who does real estate loans and wills. If you want to sell books, you have to write about the interesting lawyers – the guys who steal all the money and take off. That’s the fun stuff. —John Grisham The book has some warts. First is the poor editing. From the inclusion of irrelevant matters, e.g., a discussion of the enactment of “Obamacare,” to the confusing, schizophrenic style that never quite grasps who is the intended audience. Is it the general public or trial lawyers? That blurred presentation at times becomes distracting. Next, while the book focuses on the defective prosecution of Senator Stevens, the author never addresses the obvious question, why did the Justice Department target Stevens in the first place? If it was as the book suggests, another case of a lying snitch willing to sell his soul to save his ass, then that pernicious practice deserved more in-depth treatment, especially for lay audiences who have little understanding of the legal “bribery” the government uses with snitches.

est to Atticus readers – the post-verdict discovery of pervasive prosecutorial misconduct. Fortuitously, two weeks after the verdict, a government witness had a pang of conscience and sent a letter to the Judge, with copies to the defense and prosecution, which was a figurative “bombshell.” The witness admitted to not only lying about immunity for himself and members of his family, but described how the government “coached” him to deal with the issue on cross-examination. Further revelations provided more discovery and Brady violations which prompted the Judge to issue an order to Attorney General Mukasey to personally respond. When the change in Administrations took place in January of 2009, that mooted the order to Mukasey resulting in a broad court discovery order.

Notwithstanding the above, the book is a valuable addition to the ever-expanding body of literature of systemic Brady violations and prosecutorial misconduct. In this regard, the story is presented in two parts. The first half of the book is devoted to a historical perspective of the Senator’s life (e.g., flying 200+ combat missions during WW II), the pre-trial skirmishing and the trial itself culminating in guilty verdicts. The second part is probably of more inter-

That was the proverbial “beginning of the end” for the government. When the prosecutors filed the ordered discovery with the Court, they did not serve – as ordered – copies on the defense. The Judge then held the senior prosecutors in contempt of court. DOJ promptly replaced them. The new prosecutors’ actions were both commendable and shocking. Shocking because the evidence demonstrated that the Brady violations were flagrant and frequent.

Worse still for the government, was the evidence that the trial prosecutors knowingly used perjured testimony in their zeal to convict, without disclosing or clarifying the false testimony. Ultimately, the new Attorney General, Mr. Holder, moved to dismiss the Indictment with prejudice, which motion was granted by the Court. The dismissal, however, did not end this fiasco. The Judge then appointed a Special Prosecutor to investigate whether criminal charges were warranted against the original prosecution team. The final chapters of the book detail that investigation and its results. It will come as no surprise here that no criminal charges were forthcoming. In the end, a wrongful conviction was overturned and now Mr. Stevens (he had lost the intervening re-election bid two weeks after the verdict) was exonerated. But, justice delayed is still better than no justice at all. 1

Page 302

Rob Cary will be presenting as part of NYSACDL’s 2015 Superstar Trial Seminar in Buffalo. For more information, visit www.nysacdl.org

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Book Review The Two Finches — not really a book review by Dick Barbuto

To Kill a Mockingbird is an American Classic. The Pulitzer Prize winning novel has won too many awards to list here. Thousands (millions?) of people have named their children after the protagonist, Atticus Finch. And even some magazines are named after him, or so I am told. Mockingbird is a novel of Southern honor and injustice. It tells of the honor of a criminal defense lawyer who was wise, kind and the very definition of integrity. And it tells of the injustice suffered by blacks in the court system of the South for so many years, some of which continues to this day. The story is told through the eyes of six year old Scout, the daughter of Atticus, and takes place in Maycomb County, Alabama in the 1930’s. For over 50 years Atticus has been revered as the finest example of a criminal defense lawyer and has been the model so many of us have striven to emulate. People went to law school because of Atticus. In fact, one past president of NYSACDL referred to himself as Atticus (it wasn’t me). Until recently, Mockingbird was thought to be Lee’s only novel. 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.

What? Harper Lee wrote another book? Well, maybe. Let’s take a look at some of the facts/stories surrounding the publication of Go Set a Watchman, published by Harper Collins, one of the Big Five publishers, this year (2015). In Watchman, Jean Louise, Scout’s proper name, who is now 26 years old, has returned from living in New York to visit her father’s home in Alabama. She is

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Lawyers enjoy a little mystery, you know. Why, if everybody came forward and told the truth, the whole truth, and nothing but the truth straight out, we should all retire to the workhouse. —Dorothy L. Sayers stunned by the seeming transformation of the hero of Mockingbird to a person of well, a lot less heroic proportions. The Atticus of Watchman is a racist, who attended a Klan meeting and said such things as “The Negroes down here are still in their childhood as a people.” Or, he asks his daughter, “Do you want Negroes by the carload in our schools and churches and theaters? Do you want them in our world?” This is most definitely not the Atticus we came to love in Mockingbird.

Watchman. She called it “a troubling confusion of a novel, politically and artistically, beginning with its fishy origin story. Allegedly, it’s a recently discovered first draft of To Kill a Mockingbird, but I’m suspicious: It reads much more like a failed sequel. There are lots of dead patches in Go Set a Watchman, pages where we get long explanations of, say, the fine points of the Methodist worship service.” Corrigan has not been the only one to question the authenticity of Watchman.

through the (new) attorney handling her affairs. Her visitors are restricted to those on an approved list. I am not on that list and have not enjoyed the pleasure of her company for several years. Alice practiced law until she was 100. In 2011, she wrote to me, “Poor Nelle Harper can’t see and can’t hear and will sign anything put before her by anyone in whom she has confidence.” Alice Lee died in November, at 103. Two and half months later, the publication of Go Set a Watchman was announced.”

One story has it that Watchman was written in 1957 but returned to Lee because her editor thought it would do better through the eyes of Scout but 20 years before Watchman. Talk about a rewrite. Interestingly enough, Tom Robinson, the black man falsely accused of raping a white women was convicted in Mockingbird but acquitted in Watchman.

Others have questioned the “discovery” of the book saying it is a little difficult to believe it was attached to the Mockingbird manuscript in a safety deposit box and no one noticed it for, oh say, 50 years.

Ms. Lee has a guard outside her room. She is blind, mostly deaf and uses a wheelchair. I bet it is to keep people out rather than keep Lee in. But then, I could be wrong.

When Watchman was published some people’s heads exploded, and not just in the literary field. Defense lawyers (and others I suppose) lost their minds. Rumor has it that some members of NYSACDL were asking if the name of this magazine should be changed. I personally liked the old name, The Mouthpiece, better. But I digress. Maureen Corrigan, writing for NPR, has questioned whether Lee even wrote

There are other questions surrounding when the book was “found” including the coincidence of the timing, a short time after the death of her older sister, her protector, business manager and attorney, Alice Finch. Marja Mills has written extensively about the Lee sisters and is the author of The Mockingbird Next Door: Life with Harper Lee (Penguin). She reports that Alice was her sister’s protector and attorney. Mills has this to say, “She no longer sees some of the friends with whom she used to regularly spend time. These days, communications go

A friend of mine has told me she will not read Watchman and will just remember the Atticus of Mockingbird, a very sensible approach. For me, I will think of Watchman as a really bad dream of Scout’s. As in all dreams when we awaken we know the dreams were not real. And for those who want to change the name of this magazine I ask you to remember one thing. Mockingbird and Watchman are books. They are not real. There is no Atticus, no Moby Dick and no Luke Skywalker. Get over it.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

Brief Examinations Blessed Are Those Who Weep by Kristi Belcamino (Harper Collins/Witness Impulse, 2015)

Reviewed by Dick Barbuto

I thoroughly enjoyed the first two books in the Gabriella Giovanni series where she makes her living as a reporter on the crime beat in a San Francisco newspaper. Both told a good and entertaining story, the writing was excellent and the author developed the characters well. I made a connection with Gabriella and cared about what happened in her life. Her character was deeply flawed and that made her all the more appealing. In the author’s third book, Blessed Are Those Who Weep, Ms. Belcamino reaches new heights. When I began the book I did not like the story one bit. Gabriella was depressed and in crisis. I did not want to read about her when she was so distressed. I was not even sure I wanted to continue with the book. I was convinced the author had only two books in her and the third was a return to literary mediocrity. Fortunately, I finished the book. Ms. Belcamino has written a stunning book. Her descriptions of Gabtiella’s state, both mental and physical, are nothing short of brilliant. I wanted to dive into this book and do whatever I could to help this woman cope with her situations. She had suffered a recent miscarriage, her sister had been abducted and murdered some twenty years earlier and after walking into the scene of a slaughter with multiple victims, she rescued a baby who had somehow survived the carnage. Yes, Gabriella was a mess and it was very negatively affecting her life and her relationships with others. This was not what I wanted to read.

The genius of Ms. Belcamino’s book is that you read it, not like what is going on with the protagonist yet still realize that it is her skill as a writer that keeps drawing you in. With the first two books I would come to the end of a chapter and fight with myself as to whether I would read another chapter or get some much needed sleep. In Weep there was no fight. I just kept reading. And make no mistake here. In addition to great writing, Ms. Belcamino tells a very good story. Replete with military cover ups, police corruption and some murders where the killer uses martial arts weapons, the reader is never bored with Giovanni’s investigation. At the end of the book when Gabriella is writing the newspaper story that ties things up, the reader should be thinking Pulitzer for her investigative reporting. Giovanni has hit the big time with a national story. The same is true of Ms. Belcamino. She is on the cusp of being included in the same breath of America’s best mystery writers. For my money, she has hit the big time. If not a Pulitzer, at least an Anthony!

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

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 New! NYSACDL Foundation & Center for Appellate Litigation CLE Seminars Members only benefit! A new series of free CLE seminars offered in partnership with the Center for Appellate Litigation. Members can attend, at no extra cost, a series of hour-long discussions hosted at the Center. Top Tips For Providing The Most Effective Assistance Of Counsel, New York, NY Thursday, October 15, 2015 – 6:00pm 1 CLE Credit in Ethics Center for Appellate Litigation, 120 Wall Street, New York, NY Limited to the first 20 members!

Hudson Valley Fall 2015 Friday, October 30, 2015 1.5 Ethics Credits; 3 Skills Credits 11:00am – 4:00pm Poughkeepsie Grand Hotel 40 Civic Center Plaza, Poughkeepsie, NY Faculty & Topics Managing a Case while Dealing Effectively with Difficult People – Jackie Kellso, President, PointMaker Communications, Inc. Fighting Back: Leveraging Mobile Forensics to Mount a Defense – Joshua J. Horowitz, Esq.; Jeremy Horowitz, Digital Forensic Analyst, CyberSift Digital Forensics “But My Doctor Prescribed It!” – Handling the Prescription Drug DWAI – Joseph Gerstenzang, Esq., Gerstenzang, O’Hern, Sills & Gerstenzang Thank You To Our Sponsor: CyberSift Digital Forensics

Superstar Trial Seminar 2015 Thursday, November 5, 2015 7.5 Skills Credits United States Courthouse Buffalo Featured Faculty Rusty Hardin, Esq., Rusty Hardin & Associates, LLP; Houston, TX Robert M. Cary, Esq., Williams & Connolly LLP; Washington, D.C. Andrew LoTempio, Esq., Andrew C. LoTempio, PC; Buffalo, NY Andre Allen Vitale, Esq., Monroe County Public Defender’s Office; Rochester, NY Benjamin Ostrer, Esq., Ostrer & Associates, PC; Chester, NY Joseph LaTona, Esq., Attorney at Law; Buffalo, NY Thank you to our sponsors! Dopkins & Company, LLP LexisNexis

Weapons for the Firefight Friday, December 4, 2015 New York Law School New York, NY Topics in Progress Opening Statements & Jury Selection Preparation & Effective Use of Experts Effectively using Technology in Court Presentations Using Investigators and Presentation of Third Party Culpability

CLE

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

NYSACDL Membership

The Largest Criminal Defense Bar Association in New York State

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

LIFE MEMBERS

Wayne C. Bodden, Brooklyn

Daniel Arshack Myron Beldock Peter E. Brill Lori Cohen 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 Lee Kindlon Terence L. Kindlon Seth Kretzer Gerald B. Lefcourt David L. Lewis Thomas F. Liotti

PRESIDENT-ELECT Andrew Kossover, New Paltz

FIRST VICE PRESIDENT John S. Wallenstein, Garden City

VICE PRESIDENTS Michael T. Baker, Binghamton Danielle Eaddy, Brooklyn Alice Fontier, Manhattan Donald G. Rehkopf, Jr., Rochester Robert G. Wells, Syracuse

SECRETARY Arnold J. Levine, Manhattan

TREASURER Lori Cohen, Manhattan

EXECUTIVE DIRECTOR Jennifer Ciulla Van Ort, Albany

Florian Miedel Aaron Mysliwiec Brian Joseph Neary Thomas J. O’Hern Paul D. Petrus Frank Policelli Murray Richman Todd J.W. Wisner

PRESIDENT’S CLUB MEMBERS George Goltzer Kevin D. O’Connell Benjamin Ostrer Joel B. Rudin Richard D. Willstatter

SUSTAINING MEMBERS James A. Baker Daniel E. Bertolino Joseph R. DeMatteo Brian DeSesa Karen L. Dippold Michael Dowd William Dreyer

Mario Gallucci Alan Gardner David I. Goldstein James P. Harrington Daniel J. Henry, Jr. Jessica Horani John Ingrassia Keith Lavallee Mark Mahoney Oscar Michelen Kenneth Moynihan Gary P. Naftalis Lauren Owens Marcos A. Pagan III Roland G. Riopelle Anastasios Sarikas Jay Schwitzman Scott B. Tulman John S. Wallenstein Susan Walsh Harvey Weinberg James W. Winslow

NYSACDL WELCOMES OUR NEW MEMBERS (AS OF SEPTEMBER 23, 2015) ALBANY COUNTY

NASSAU COUNTY

Robert Georges Kenneth E. Gilbert Martha Grieco Joseph Guastaferro Michael Thomas Jaccarino Elizabeth Johanns David Leigh Anthony Lekas Ian N. Levy Richard B. Lind David P. Turchi Danielle Von Lehman Herman Walz Zachary Yeoman

Bruce Connolly

ONEIDA COUNTY

NEW YORK COUNTY

Arline L. Hanna

Tanya Gayle

Jonathan Edelstein Robert M. Fantone Paul Feinman Michael Fleischman

ONONDAGA COUNTY

STEUBEN COUNTY

Rome Canzano Benjamin Coffin Kelly Gonzale

SUFFOLK COUNTY

Paul Evangelista

ERIE COUNTY Jacqueline Balikowski J. Patrick Lennon

GREENE COUNTY Veronica M. Kosich

KINGS COUNTY Nicole Bellina Brittany Brown Kenneth J. Montgomery

Uzma Gulamali Pat Hennessy Dennis Sedo Joseph A. Spadafore

ORANGE COUNTY Randy I. Siper

NEW JERSEY Mario G. Bai Stephen N. Dratch

TOMPKINS COUNTY Luke Fenchel

ULSTER COUNTY Kevin Harp Alexander Mainetti Michael Mainetti Christopher Ragucci

WARREN COUNTY Tucker C. Stanclift

QUEENS COUNTY Ali Benchakroun David Strachan, Jr.

ROCKLAND COUNTY

Philip J. Roche Lynda Koenig

Atticus | Volume 27 Number 3 | Fall 2015 | 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: Andrew Kossover (ak@kossoverlaw.com) Members: Wayne Bodden, Lori Cohen, Danielle Eaddy, 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

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: Wayne Bodden, Andrew Kossover, David Goldstein Aaron Mysliwiec, Michael Shapiro

LAWYERS STRIKE FORCE ASSISTANCE COMMITTEE Chair: Wayne Bodden (wcb40@aol.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

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, Claudia Trupp

PUBLIC STATEMENTS COMMITTEE Chair: Wayne Bodden (wcb40@aol.com) Members: Alice Fontier, Lawrence Goldman, Timothy Hoover, Jessica Horani, Susan Walsh, Richard Willstatter

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

People are getting smarter nowadays; they are letting lawyers, instead of their conscience, be their guide. —Will Rogers

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

NYSACDL

New York State Association of Criminal Defense Lawyers

Membership Application Please print or type

Name: ______________________________________________________ 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 President’s Club Sustaining Member Regular Member

Income over $50,000 or In practice over 5 years

$2500 $515 $315 $219

Our Mission NYSACDL is dedicated to protecting the rights of criminal defendants through a strong, unified, and well-trained criminal defense bar. Our guiding principle is that vigorous defense is the strongest bulwark against error and injustice in the criminal justice system. In an era when the United States has the highest incarceration rate in the world, we expand on the question most often posed to our members and ask “how can we defend those people most effectively?” NYSACDL’s goals are to: n Serve as a leader and partner in advancing humane criminal justice policy and legislation. n Promote the rights of criminal defendants through the adoption of policy positions, targeted concerted action, and the submission of amicus briefs on issues of significance to the fair administration of criminal justice and the protection of civil liberties. n Advocate for individual and systemic accountability in the criminal justice system, with a particular emphasis on instances of judicial and prosecutorial misconduct. n Develop a broad, inclusive and vibrant membership of private criminal defense practitioners and public defenders throughout New York State.

Regular Member

$142

Full-time Public Defender Allied Professional Member

$142 $193

n Provide a forum for our members to exchange ideas and information, with a particular emphasis on mentoring those who are new to the profession.

Retired Attorney $91 Law Student/Recent Law School Alumni (less than one year since completion) $66 School: __________________________

n Provide quality continuing legal education to our members through live programs, a comprehensive and easily-accessible briefs and motions bank, e-alerts and website updates with new developments, and articles in our quarterly publication, Atticus.

Income under $50,000 or In practice less than 5 years

Non-lawyers who assist in the defense of criminal cases (consultants, investigators, etc.)

Graduation date: __________________

Membership dues can be paid by check or charged to American Express, MasterCard, or Visa. Please charge to my credit card.

n Defend our members in professional emergencies and honor their achievements through articles on our website and in Atticus, and awards at our annual dinner

Credit card #: ____________________________________________ Exp. date: _______________________________________________ Signature of applicant: _____________________________________ Date:______________________________ CVV code_____________

Please make your check payable to NYSACDL and send it to: NYSACDL Office, 90 State Street, Suite 700, Albany, New York 12207 Fax: 888-239-4665

Atticus | Volume 27 Number 3 | Fall 2015 | 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.

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

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.

AMICUS BRIEFS – NYSACDL provides amicus assistance on issues of particular import.

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.

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.

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

CLEMENCY PROJECT

NEEDS

YOU!

An Open Letter to the Criminal Defense Bar Perhaps one of the single most gut-wrenching moments defense lawyers experience is when, standing alongside a client, we hear a judge pronounce an inordinately lengthy sentence and apologetically proclaim that “my hands are tied.” This is the tyranny of mandatory minimums and, for decades, it was the reality of the mandatory federal sentencing guidelines. Now we have a chance to undo some of that cruelty. I ask you to join in this noble and necessary cause. In January 2014, Deputy Attorney General James Cole announced a new clemency initiative that provides an opportunity for many nonviolent federal offenders to have their sentences commuted, and asked the profession to assist qualified inmates. Clemency Project 2014 (CP 2014) was created to answer that call. It is a working group composed of lawyers and advocates, including the Federal and Community Defenders, the American Civil Liberties Union, Families Against Mandatory Minimums, the American Bar Association, and NACDL, as well as individuals active within those organizations. CP 2014 members collaborate to recruit and train attorneys on how to screen for prisoners who meet the stated criteria and provide pro bono representation for prisoners who meet the criteria. CP 2014 is now fully operational, and this is an opportunity for all lawyers to help. The Project has developed a comprehensive training program that can be viewed at your convenience. The program provides everything a lawyer needs to know to evaluate an inmate’s eligibility, and offers comprehensive guidance on what must be included in a clemency petition. Lawyers who currently serve on federal Criminal Justice Act panels are not required to complete the training, but they will find the section on how to determine if an inmate’s sentence would be lower if imposed today — the core requirement of the clemency initiative — quite valuable. Additionally, CP 2014 provides input and resource support for all volunteers. As of early March, more than 30,000 federal prisoners have submitted applications for clemency consideration. More than 5,000 applications are currently under review, and more than 1,500 attorneys have volunteered to take on pro bono cases via CP 2014. But, with so many applicants, more volunteers are needed. Time is also a factor because we cannot be assured that the initiative will continue under the next administration. This is an historic opportunity for the criminal defense bar to rise up. We simply must make sure that we find every single prisoner who may qualify and present the strongest possible petition on every prisoner’s behalf. I ask for your help. Please volunteer now.

Cynthia W. Roseberry

Project Manager, Clemency Project 2014

CYNTHIA ROSEBERRY has been a criminal defense lawyer for 17 years and a proud member of NACDL for most of that time. She served as executive director of the Federal Defenders of the Middle District of Georgia, Inc., a position she held for five years. In June 2014, when she was asked by the organizations participating in Clemency Project 2014 to serve as project manager, Cynthia left that position for an opportunity to help obtain freedom for countless nonviolent offenders who have languished in jail serving horrifically severe sentences. It is in the capacity of project manager that she writes this letter seeking your assistance.

For more information and to

VOLUNTEER for

CLEMENCY PROJECT 2014 please visit www.clemencyproject2014.org 46

Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

NYSACDL FOUNDATION

Sponsors as of September 23, 2015

Annual Dinner

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Thursday, January 28, 2016

Platinum Sponsors

Grand Hyatt New York, 109 E. 42nd Street, at Grand Central Terminal, New York, NY Cocktail Reception at 6pm | Dinner & Ceremony at 7:30pm Honoring

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Presenting The Hon. William Brennan Award for Outstanding Jurist Hon. Karen Peters, Presiding Justice, Third Department Hon. Thurgood S. Marshall Award for Outstanding Criminal Practitioner Anthony L. Ricco, Esq. Distinguished Service to the Criminal Defense Bar Michael Shapiro, Esq. Justice Through the Arts & Journalism Award Susan Slotnick, Rehabilitation Through the Arts

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Atticus | Volume 27 Number 3 | Fall 2015 | New York State Association of Criminal Defense Lawyers

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“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.

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