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Nov
29

ARE POLICE OFFICERS LAW ENFORCEMENT OFFICERS EVEN WHEN “OFF-DUTY”?

Let’s just say that criminal defense counsel has accepted the responsibility of representing a client who has been charged with the commission of a battery on a “law enforcement officer” in violation of Fla. Stat. § 784.07.   This statute punishes persons who commit a battery against law enforcement officers during the lawful performance of their duties more severely than persons who commit the same act against any other person.  See Fla. Stat. § 784.03.

It has been common for bar owners operating in South Florida to hire off-duty police officers to provide security for their establishments which are commonly frequented by rowdy young adults with a weekend passion for alcohol consumption.  In many instances, these off-duty officers don their best police duds complete with crime-deterring police-issued weapons.  However, whenever a police officer is off-duty, he or she is arguably no more than a private citizen in the eyes of the law despite his or her 24-hour access to police gear and equipment.

The Florida Supreme Court in the case of Soverino v. State, 356 So.2d 269 (Fla.1978), discussed this battery statute at page 271:

“Because the public welfare is protected by the performance of these duties, the legislature in its wisdom has chosen to accord greater protection to one who performs these indispensable public services. When an officer is not performing his official duties, he is no longer protecting the public welfare and, consequently, the statute yields him no greater protection than that accorded to members of the general public.”

(Emphasis added).

Twenty years later, applying well-settled principles of statutory construction to the same battery statute, the Florida Supreme Court held that a federal law enforcement officer is not a “law enforcement officer” as defined in Fla. Stat. § 943.10(1).  See McLaughlin v. State, 721 So.2d 1170, 1172-73 (Fla.1998) (“we note that section 784.07(1)(a) states that the term ‘law enforcement officer’ includes a law enforcement officer … [as] defined in §943.10.  Section 943.10 provides at the outset that ‘[l]aw enforcement officer’ means any person who is elected, appointed, or employed full time by any municipality or the state or any political subdivision thereof. The meaning of these words cannot be plainer: A ‘law enforcement officer’ for section 784.07 purposes must be either a state or local officer.”) (internal quotations omitted).

If a federal law enforcement officer falls outside the statutory definition of a law enforcement officer, then the rationale of McLaughlin should apply a fortiori to off-duty police officers and support the legal position that police officers are just plain citizens whenever off-duty.  Read in conjunction with its earlier Soverino decision, the Supreme Court decision in McLaughlin makes clear that officers should only be accorded the statutory status of “law enforcement officer” while performing official police duties.

It would behoove defense counsel to seek the dismissal of any charges premised on the victim’s alleged status as a “law enforcement officer” if, at the time of the alleged offense(s), the officer was “off-duty” or working as a private security officer while off-police-duty.


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Nov
26

THE DANGEROUS INTERSECTION OF HEALTH RISK AND BACKSCATTER X-RAY TECHNOLOGY

Criminal defense issues aside, the right to privacy also includes personal decisions affecting one’s health and welfare.  The voice of medical expertise is being added to the growing chorus of dissent against the new backscatter x-ray technology being employed by the government at airports throughout the United States.

It is well-established that cases involving medical issues require immediate resolution.  See generally Roe v. Wade, 410 U.S. 113 (1973).  The recently published opinion of a medical expert supports the concern that the new x-ray technology poses dangerous health risks.  Therefore, we have reached the dangerous intersection of health risk and the fundamental constitutional right to privacy.

The other side of the coin is the threat of terroristic bloodshed carried out by inculcated “martyrs” who may be ready and willing to secrete difficult to detect plastic explosives inside of body cavities to carry out their “life mission” in the name of their extremist “cause.”

Read on and educate yourself about all of the facets of this important social debate as we approach a “brave new world” where technology is poised to transcend the values of a “free society.”

Dr. Blaylock has offered his “opinion” (“Body Scanners More Dangerous Than Feds Admit”) based on his understanding of the facts, and there will be other experts who will offer their diagonally-opposed “opinions” based on their “facts” holding out the hope that the new x-ray technology will never pose any threat to human health.  It is a thorny debate and a legal issue of constitutional magnitude.

If you travel by airplane, staying informed is in your own best interest.  As trial judges instruct juries on qualified expert witnesses, you are free to accept or reject all or part of any doctor’s “expert opinion.”  My concerns continue to be health and privacy tempered with a heavy dose of realism.

Dr. Blaylock: Body Scanners More Dangerous Than Feds Admit

Wednesday, November 24, 2010 9:58 AM

By Dr. Russell Blaylock

Dr. Russell Blaylock is a board-certified neurosurgeon, health practitioner, author, and lecturer.

The growing outrage over the Transportation Security Administration’s new policy of backscatter scanning of airline passengers and “enhanced pat-downs” brings to mind these wise words from President Ronald Reagan: “The nine most terrifying words in the English language are: ‘I’m from the government and I’m here to help you.’”

So, what is all the concern really about — will these radiation scanners increase your risk of cancer or other diseases? A group of scientists and professors from the University of California at San Francisco voiced their concern to Obama’s science and technology adviser John Holdren in a well-stated letter back in April.

The group included experts in radiation biology, biophysics, and imaging, who expressed “serious concerns” about the “dangerously high” dose of radiation to the skin.

Radiation increases cancer risk by damaging the DNA and various components within the cells. Much of the damage is caused by high concentrations of free radicals generated by the radiation. Most scientists think that the most damaging radiation types are those that have high penetration, such as gamma-rays, but in fact, some of the most damaging radiation barely penetrates the skin.

One of the main concerns is that most of the energy from the airport scanners is concentrated on the surface of the skin and a few millimeters into the skin. Some very radiation-sensitive tissues are close to the skin — such as the testes, eyes, and circulating blood cells in the skin.

This is why defenders using such analogies as the dose being “1,000-times less than a chest X-ray” and “far less than what passengers are exposed to in-flight” are deceptive. Radiation damage depends on the volume of tissue exposed. Chest X-rays and gamma-radiation from outer space is diffused over the entire body so that the dose to the skin is extremely small. Of note, outer space radiation does increase cancer rates in passengers, pilots, and flight attendants.

We also know that certain groups of people are at a much higher risk than others. These include babies, small children, pregnant women, the elderly, people with impaired immunity (those with HIV infection, cancer patients, people with immune deficiency diseases, and people with abnormal DNA repair mechanism, just to name a few).

As we grow older, our DNA accumulates a considerable amount of unrepaired damage, and under such circumstances even low doses of radiation can trigger the development of skin cancers, including the deadly melanoma. I would also be concerned about exposing the eyes, since this could increase one’s risk of developing cataracts.

About 5 percent of the population have undiagnosed abnormal DNA repair mechanism. When exposed to radiation, this can put them at a cancer risk hundreds of times greater than normal people.

It also has been determined that when skin is next to certain metals, such as gold, the radiation dose is magnified 100-fold higher. What if you have a mole next to your gold jewelry? Will the radiation convert it to a melanoma? Deficiencies in certain vitamins can dramatically increase your sensitivity to radiation carcinogenesis, as can certain prescription medications.

As for the assurances we have been given by such organization as the American College of Radiology, we must keep in mind that they assured us that the CT scans were safe and that the radiation was equal to one chest X-ray. Forty years later we learn that the dose is extremely high, it is thought to have caused cancer in a significant number of people, and the dose is actually equal to 1,000 chest X-rays.

Based on these assurances, tens of thousands of children have been exposed to radiation doses from CT scanners, which will ruin the children’s lives. I have two friends who were high-ranking Environmental Protection Agency scientists, and they assure me that in government safety agencies, politics most often override the scientists’ real concerns about such issues.

When the real effects of these scanners on health become known, Secretary of Homeland Security Janet Napolitano and the rest of the gang who insist the scanners are safe will be long gone.

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Nov
23

THE X-RAY BOYCOTT – UNDER THE GOVERNMENT’S MICROSCOPE

The web news have been abuzz with rumors of a grass-roots rebellion against the new “advanced imaging technology” being employed by the TSA throughout the airport system of the United States.   There is even some talk of an ill-advised Thanksgiving x-ray boycott which would only create long delays and inconvenience for all airport passengers.

As a traveler in a world of random “hate crimes” against the U.S. and its allies, crimes also known in the aggregate as “terrorism,” I will feel much safer flying with the advent of this technology.  However, I am also deeply troubled and saddened by the end of the “free society” that we enjoyed not too long ago.

In a world of hard-core martyrs who might be willing to “keyster” (as rectal contraband smuggling is better known in hard-core penitentiaries) plastic explosives and blow themselves up along with hundreds of other innocent passengers (in a possible post-9/11 scenario), I appreciate the importance of being a “grown-up” about it and embracing technology that helps save human life.  Nevertheless, the fabric of a truly free society is being torn asunder by unstoppable advances in science and technology.

“Boycotts” against technology are not the answer and are futile in the relentless, long-term future of greater technological advances.  In the end, it will all boil down to circumscribing the boundaries of permissible use of this new x-ray technology and strictly enforcing the governing regulations. Preferably, an Act of Congress will intervene after plenary hearings on the privacy and highly nuanced political implications.

In the meantime, feast your eyes on this “advanced imaging technology” (AIT) snapshot.  It could be your family under the government scope. Think about it… like a “grown up,” and keep in mind that the future stops for nobody.  My issues are health and privacy tempered with reality.

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Nov
18

POLICE STATE SERIES – SAY HELLO TO MY LITTLE FRIEND!!!

The United States government riding the crest of a tidal wave of terrorist fears has unleashed the ultimate 21st century weapon in the “police state” arsenal. The police is shouting “Say hello to my little friend!” while pointing a backscatter x-ray gun into your vehicle or your home if the heart of a policeman so desires. The surreptitious police exploitation of this “Superman” x-ray vision device threatens to eviscerate the Fourth Amendment.  American society is sliding down a slippery slope toward a terrorized acceptance of a national security state, also known as a “police state.”

Get another opinion on this serious subject by reading the “in-depth” thoughts of expert Frederick Lane.   Just copy and paste the safe virus-free link below for an interesting read on this subject of great public importance.

www.big3news.net/blog/2010/10/03/exclusive-feds-roll-out-backscatter-x-ray-units-on-georgias-i-20-in-expanded-vipr-counter-terrorism-operation/

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Nov
17

UNITED POLICE STATES OF THE AMERICAS – THE “INCOMMUNICADO INTERROGATION” RUSE

In this age of tyrannical police with unchecked power, it is frightening to note that the “police state” mentality has gone viral and global.  Criminal defense lawyers who defend international cases involving defendants extradited from South America are threatened by the specter of joint ventures that create incommunicado conditions to facilitate the extraction of confessions by U.S. agents.

An extradition case from Colombia illustrates the extraterritorial “incommunicado interrogation” police ruse employed by a joint venture of U.S. and Colombian agents to obstruct a major target’s access to counsel before and during incommunicado interrogations expressly condemned as far back as the landmark Miranda opinion.

The U.S. government does not target foreign nationals for extradition to the United States unless they are major targets with knowledge of high-value information for desired debriefing.  Given the ultimate goal of gathering intelligence about the participants and methods of major criminal organizations, foreign-soil interrogation (“interviews” preferred by the government) is the most critical phase of the criminal proceedings for the defendant and for the information-gathering U.S. government agents. However, U.S. agents operating abroad should not capitalize on incommunicado detention conditions to extract involuntary incriminating statements from a prisoner awaiting extradition to face charges in the United States.

Any obstruction to the right to counsel by the Colombian “joint venture” partners must be imputed to the U.S. agents when the extraterritorial relationship goes beyond mutual cooperation and rises to the level of “agency” because the Colombian agents cede primary control over the foreign-based investigation to their U.S. agency counterparts.

On the issue of extraterritorial waivers, the district court decision in United States v. Bin Laden, 132 F.Supp.2d 168, 185-192 (S.D.N.Y. 2001) provides guidance to the analysis of the waiver forms signed by U.S. government targets in foreign custody.  The district court in Bin Laden painstakingly analyzed the “advice of rights” (“AOR”) form that had been used by federal agents operating overseas and reached a conclusion that the AOR was flawed with respect to the crucial advice as to the right to counsel.  The court concluded that the improper advice of the right to counsel given under the wording of the AOR form required suppression of certain statements that had been the product of an interrogation conducted by U.S. agents abroad.  Id. at 189-192.  U.S. agents cannot “deliberately ignore” any obstruction of access to counsel committed by their “joint venture” partners.

The Bin Laden decision found that, within the extraterritorial context, a “principled but realistic application of Miranda’s familiar warning/waiver framework, in the absence of a constitutionally adequate alternative, is both necessary and appropriate under the Fifth Amendment.  Only by doing so can [trial] courts meaningfully safeguard from governmental incursion the privilege against self-incrimination afforded to all criminal defendants in this country – wherever in the world they might initially be apprehended….” See Bin Laden, 132 F.Supp.2d at 185-186 (emphasis and brackets added).

When a defendant is arrested by a joint venture of agents from Colombia and the United States, his or her words cannot be used against him or her unless the prosecution shows that those admissions were preceded by a proper advice of rights, followed by a valid waiver.  When a waiver obtained by U.S. agents fails to observe the Miranda safeguards, the defendant’s statements should be suppressed, thereby protecting the right against self-incrimination from government violation, as well as deterring future police misconduct.  See Bin Laden at 187.

In our hypothetical extradition case, the defendant was denied access to counsel before U.S. agents initiated their interrogations aimed at obtaining his “confession.”   The U.S. courts cannot countenance “incommunicado interrogations” wherever they are conducted in the world by U.S. agents.  The Bin Laden decision insightfully found it was “far more likely” that a custodial interrogation “carried out beyond our borders and under the aegis of a foreign stationhouse”, id. at 186, would “present greater threats of compulsion since all that happens to the accused cannot be controlled by the Americans.” Id.

It is not uncommon for a defendant to be held incommunicado for a prolonged period after his formal arrest and transportation. In Colombia, the accused is often “isolated and without assistance [of counsel] for a duration not seen today in America.” Id. U.S. agents should not be permitted to initiate a textbook “incommunicado” interrogation session by obtaining a waiver under the Notification of Extraterritorial Rights to extract incriminating statements from a target being deprived of the opportunity to have access to counsel. Detention in the notorious underground “bunkers” of Colombia also constitutes “[s]ubstandard detention conditions” contributing to the coercive atmosphere.  Thus, “strong countervailing forces… run head first into the free will of the accused.”  Id.   The “guiding hand of counsel” is essential to advise a defendant of his rights before and during any post-arrest interrogations.  See Powell v. Alabama, 287 U.S. 45, 69 (1932); see also Massiah v. United States, 377 U.S. 201, 204 (1964) (interrogation is “stage when legal aid and advice were most critical to petitioner.”).

The “joint venture” exception must be extended to condemn obstruction of access to counsel being perpetrated by our federal government’s Colombian “joint venture” partners who work in unison with U.S. agents in the investigation and apprehension of major targets.  See Bin Laden at 187 (citing United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840 (1983), abrogated on other grounds (U.S. personnel, despite asking no questions directly, used the foreign officials as their interrogational agents in order to circumvent the requirements of Miranda); United States v. Molina-Chacon, 627 F.Supp. 1253, 1262 (E.D.N.Y.1986), aff’d sub nom, United States v. DiTommaso, 817 F.2d 201 (2d Cir.1987)).

The existence of the exception for “joint ventures” is based on a salutary requirement that U.S. constitutional safeguards must apply to any aspect of an overseas interrogation conducted by U.S. agents.  See Bin Laden at 188 (“To the maximum extent reasonably possible, efforts must be made to replicate what rights would be present if the interrogation were being conducted in America.”). Under these unique circumstances, it is essential to impose a requirement that U.S. agents remove their blinders and remain vigilant of their foreign partners’ conduct rather than later claim ignorance of their “joint venture” partners’ denial of fundamental rights, such as the defendant’s right to have timely access to counsel before and during interrogations initiated by U.S. agents abroad.  The right is violated with Machiavellian impunity when agents engage in the functional equivalent of “incommunicado” interrogations.

The  standard Notification of Extraterritorial Rights (“Notificación Extraterritorial de Derechos”) contains language that should trouble any American trial court in “joint venture” cases, where U.S. agents have primary control over investigations ceded by their foreign counterparts.  The poor language would permit agents to obtain carte blanche to “deliberately ignore” obstruction of access to counsel committed by their “joint venture” partners abroad.  SeeNotificación Extraterritorial de Derechos” at ¶6 (“Sin embargo, porque usted no está bajo nuestra custodia y no estamos en los Estados Unidos, no podemos asegurar que se le permita acceso a un abogado… antes de o durante nuestra entrevista.”).

The above paragraph is translated as follows: “However, because you are not under our custody and we are not in the United States, we cannot ensure that you will be permitted access to counsel … before or during our interview.” Notification of Extraterritorial Rights at ¶6 (emphasis added).

Our courts cannot countenance any such gamesmanship by U.S. agents whenever the evidence clearly demonstrates that their “joint venture” partners obstructed access to counsel in a case where the relationship goes beyond mutual cooperation and rises to the level of “agency” because the foreign partners ceded primary control of the overseas investigation to U.S. agents seeking extradition of a defendant to face charges in the United States.

The above-emphasized language cannot pass constitutional muster because it would invite an “incommunicado” interrogation ruse where the foreign partners obstruct access to defense counsel while U.S. agents put on blinders in order to enjoy unfettered access to prisoners in order to conduct such tainted foreign-soil interrogations.

Indeed, the decision in Bin Laden was careful to “leave open whether th[e] assumption [that foreign law on access to counsel trumps American procedure] remains valid if foreign authorities cede to U.S. law enforcement primary control of the foreign-based investigation…. The relationship in such a hypothetical scenario will have shifted from mutual cooperation to one of agency.”  Bin Laden, 132 F.Supp.2d at 188-89, n.18 (emphasis and brackets added). Where primary control of an investigation is ceded to U.S. agents by their foreign joint venture partners, the case clearly presents the “agency” scenario. Therefore, all of the actions of the foreign partners must be imputed to the U.S. agents under basic principles of agency law.

Because Colombian “joint venture” police partners have created incommunicado detention conditions for prolonged periods after arrest and have compounded their error by continuing to obstruct access to defense counsel before and during successive “incommunicado” interrogations initiated by U.S. agents in control of the investigation, suppression of all statements so obtained is required.

A voluntary waiver as to the rights contained in the Notification of Extraterritorial Rights cannot be obtained and “interviews” cannot be held while a prisoner is being held incommunicado.  Without a significant break in the events between an initial interrogation conducted while the prisoner is under incommunicado detention and a subsequent interrogation where counsel is denied access to his client before the interrogation, the taint of the initial involuntary confession renders any subsequent waiver extracted within a few days defective. U.S. agents cannot turn a “blind eye” to any obstruction of access to counsel committed by their “joint venture” partners to avoid complicity.

It should insult the intelligence of the courts whenever U.S. agents attempt to avoid any responsibility for the actions of their foreign joint venture partners that are clearly designed to obstruct access to counsel before and during interrogations conducted by U.S. agents in a controlled incommunicado environment.

Records reflect that Colombian joint venture partners also include the logistical wing of law enforcement  (jailers/transporters working for “la Fiscalia,” the Colombian Prosecutor’s Office) who create incommunicado detention conditions by obstructing access to defense counsel while facilitating unfettered access for U.S. agents to conduct interrogations in cases involving major targets of our federal government.  This level of cooperation where primary control of the investigation is ceded to U.S. agents rises to the level of “agency.”  In such a scenario, U.S. agents in control of the investigation must incur responsibility for all of the actions taken by all of their “joint venture” partners under basic principles of agency law.

PRACTICE POINTS:

In defending such cases involving “incommunicado” interrogations, defense counsel will have to first persuade the court that the record clearly shows that Colombian jailers are a part of the “joint venture” team and that the level of cooperation between U.S. agents and their “joint venture” partners in Colombia rises to the level of “agency” because the Colombians ceded primary control over the investigation to the U.S. agents seeking extradition.  See United States v. Bin Laden, 132 F.Supp.2d 168, 188-189, n.18 (S.D.N.Y. 2001) (leaving open question of “whether th[e] assumption [that foreign law on access to counsel trumps American procedure] remains valid if foreign authorities cede to U.S. law enforcement primary control of the foreign-based investigation…. The relationship in such a hypothetical scenario will have shifted from mutual cooperation to one of agency.”).

The constitutional claims stand on much firmer ground if the relationship rises to imputable agency because all prisoners are entitled to a reasonable opportunity to seek and receive the assistance of their counsel. Procunier v. Martinez, 416 U.S. 396, 419 (1974).  If the actions taken by the “Fiscalia” (Prosecutor’s Office) jailers can be imputed to the U.S. agents in control, then an impermissible obstruction of the right to counsel can be attributed to the government.  See Procunier, 416 U.S. at 419 (an unjustified obstruction of the right to representation is impermissible). The unjustifiable obstruction of the right to obtain timely access to counsel is demonstrated by the fact that U.S. agents enjoy unrestricted jail access to prisoners facing extradition to the United States, while the same jailers unjustifiably obstruct defense counsel from obtaining timely access to their clients who need to receive advice of counsel prior to being interrogated by U.S. agents.  Statements obtained during “incommunicado interrogation” by U.S. agents cannot be admitted as evidence in an American court of law.

Any statements obtained while a prisoner is being held incommunicado and access to counsel is obstructed are involuntary.  Miranda v. Arizona, 384 U.S. 436, 476 (1966) (“Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of … incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.”) (emphasis added).  U.S. government agents cannot exploit any statements obtained during any incommunicado interrogations because the “practice of incommunicado interrogation is at odds with one of our Nation’s most cherished principles – that the individual may not be compelled to incriminate himself.”  Miranda, 384 U.S. at 457-458.

The Miranda Court observed that “incommunicado interrogation” in an “unfamiliar,” “police-dominated atmosphere,” id. at 456-457, involves psychological pressures “which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.”  Id. at 467.  See Darwin v. Connecticut, 391 U.S. 346, 349 (1968) (“The inference is inescapable that the officers kept petitioner incommunicado for [ ] hours during which they sought and finally obtained his confession. … The denial of access to counsel and the outside world continued throughout, and there was no break in the stream of events from arrest throughout [both confessions], sufficient to insulate the final events from the effect of all that went before.”) (citations and internal quotations omitted; brackets added).

These statements are fatally tainted by the obstruction to access counsel that is inherent in an “incommunicado interrogation.”  A prisoner’s right to counsel to protect all of his other rights implicates “both the due process right of access to the courts and the Sixth Amendment right to counsel.”  Benjamin v. Fraser, 264 F.3d 175, 187 (2d Cir.2001).  Similarly, “prison regulations restricting pretrial detainees’ contact with their attorneys” violate the Sixth Amendment “where they unreasonably burden [ ] the inmate’s opportunity to consult with his attorney and to prepare his defense.” Benjamin, 264 F.3d at 187 (emphasis added).  The first fundamental step to preparing a defense is timely advice of counsel exhorting a client to exercise his right to remain silent rather than provide statements that can eventually be regarded  by jurors as a “confession.”  Post-arrest interrogations constitute “the stage when legal aid and advice [a]re most critical.”  Massiah v. United States, 377 U.S. 201, 204 (1964).

Under basic principles of agency law, U.S. agents cannot claim ignorance of the unjustifiable obstruction of counsel committed by joint venture partners abroad who quite often cede primary control of the foreign-based investigation to U.S. agents seeking the extradition of major targets to face charges in the United States.  The federal courts cannot allow the admission of statements obtained during “incommunicado” interrogations facilitated by a police ruse being implemented by our “joint venture” partners.

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Nov
16

DILUTED HONEST SERVICES FRAUD – SELF-DEALING IS OKAY

Some court decisions although favorable to the defense function can raise a few eyebrows. Recent Supreme Court decisions have eviscerated the “honest services” fraud statute severely limiting its scope to cover only the most egregious quid pro quo bribery and kickback scenarios. Corporate officer “self-dealing” is now beyond the reach of the fraud statute thanks to the highest Court in the land.  If the subject matter peaks your professional curiosity continue reading below the informative web article posted by Edward F. Greene of Cleary Gottlieb Steen & Hamilton LLP.

Supreme Court Limits Federal “Honest Services” Fraud Statute
Posted by Edward F. Greene, Cleary Gottlieb Steen & Hamilton LLP.
Tags: Black v. US, Cleary Gottlieb, Edward Greene, Honest services, Skilling v. US, Supreme Court
Editor’s Note: Edward Greene is a partner at Cleary Gottlieb Steen & Hamilton LLP focusing on corporate law matters. This post is based on a Cleary Gottlieb Alert Memo and relates to the U.S. Supreme Court decisions in Skilling v. United States and Black v. United States.

Since the enactment of the “honest services” fraud statute, 18 U.S.C. § 1346, which defines the scope of the federal mail and wire fraud statutes to include the use of interstate means of communication to effect a “scheme or artifice to defraud … another of the intangible right of honest services,” federal prosecutors have used the provision in numerous cases to combat public and private corruption, and alleged corporate wrongdoing – even in situations where the defendant does not directly obtain money or property from the alleged victims of the fraud. Today, the U.S. Supreme Court issued two opinions that significantly restrict the scope of this statute. Skilling v. United States, 561 U.S, No. 08-1394 (June 24, 2010); Black v. United States, 561 U.S., No. 08-876 (June 24, 2010).
I. The Decisions
The principal question that the Supreme Court considered in Skilling was whether Section 1346’s prohibition against conduct that deprives another of “the intangible right of honest services” is unconstitutionally vague. [1] Writing for the Court, Justice Ginsburg declined to rule that the law should be invalidated in its entirety, but found that “Skilling’s vagueness challenge has force,” and limited “honest services” fraud to reach only bribery and kickback schemes. [2] Under this approach, the Court found that Mr. Skilling could not have violated Section 1346 because the prosecution did not allege that he solicited or accepted bribes or kickbacks, but rather that he conspired to defraud Enron’s shareholders by other means. Because Mr. Skilling’s conviction for conspiracy was predicated not only on the “honest services” fraud theory, but also on theories including securities fraud, the Court remanded the case to the courts to determine whether to invalidate Mr. Skilling’s conspiracy conviction, and to determine whether the other charges on which Mr. Skilling was convicted would be affected.
In a separate concurrence, Justice Scalia, joined by Justices Thomas and Kennedy, both agreed that Mr. Skilling’s conviction for “honest services” fraud was erroneous, and further concluded that Section 1346 was unconstitutionally vague in its entirety and could not be salvaged.
The Justices reiterated their views in Black, [3] and similarly remanded the case for further proceedings in the lower courts.
II. Ramifications of the Decisions
The decisions severely cabin Section 1346’s scope to apply solely to the most egregious quid pro quo-style transactions, and not to “honest services” claims based on other forms of alleged corporate malfeasance, such as self-dealing. Thus, the decisions may dramatically change the federal white-collar criminal landscape. Although prosecutors still have many tools in their toolbox, the decisions remove a powerful tool they have used in the investigation and prosecution of alleged corporate malfeasance. Indeed, prosecutors will no longer be able to prosecute under an “honest services” fraud theory conduct, including breaches of fiduciary duties, which is typically addressed in civil litigation. The Supreme Court’s decisions continue a trend of recent court decisions reorienting the balance between the state and individual in the criminal law.
Endnotes
[1] After the collapse of Enron, Mr. Skilling was convicted of, among other charges, conspiring to deprive Enron and its shareholders of his “honest services” by participating in a scheme to inflate the value of Enron’s shares by overstating Enron’s financial health.
(go back)
[2] Id. at 41-44.
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[3] Publishing magnate Conrad Black was convicted of violating federal mail fraud laws for enriching himself through improper dealings with Hollinger that he failed to disclose to Hollinger’s shareholders. Under the prosecution’s theory, the defendants’ failure to disclose these dealings “deprived Hollinger of their honest services as managers of the company.” Black, Slip Op. at 2.

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Nov
15

X-RAY ON STEROIDS – CIRCUMSCRIBING THE USE OF TECHNOLOGY

With the advent of the new generation of “backscatter x-ray” devices that enable law enforcement to obtain “X-rated” images of passengers or “see through” a foot of metal, the use of this powerful new x-ray technology will require reference to the cases that discuss limitations on the use of the older generation x-ray devices.  The older x-ray case precedents will play a role in shaping the restrictions to be imposed on the use of the more powerful new backscatter x-ray technology by law enforcement agents.

In United States v. Montoya de Hernandez, 473 U.S. 531 (1985), addressing more invasive searches, the Supreme Court held that “the detention of a traveler at the border, beyond the scope of a routine customs search and inspection, is justified at its inception if customs agents, considering all the facts surrounding the traveler and her trip, reasonably suspect that the traveler is smuggling contraband in her alimentary tract.”  473 U.S. at 541.   However, the Supreme Court did not directly circumscribe “what level of suspicion, if any, is required for non-routine border searches such as strip, body cavity, or involuntary x-ray searches.”   Id. at 541, n.4.  The Eleventh Circuit has limited that level of suspicion at “reasonable suspicion.”

Even at international ports of entry or borders, where there exists a curtailed expectation of privacy, passengers do not entirely waive their rights to privacy.  Reasonable suspicion is required for highly intrusive searches of a person’s body such as a strip search or an x-ray examination. See, e.g., Brent v. Ashley, 247 F.3d 1294, 1302 (11th Cir.2001) (concluding that strip search of airline passenger arriving at Miami International Airport from Nigeria without reasonable suspicion that the passenger was smuggling drugs violated the Fourth Amendment); United States v. McMurray, 747 F.2d 1417, 1420 (11th Cir.1984) (“A strip search requires a particularized reasonable suspicion. This standard is met by a showing of articulable facts which are particularized as to the person and as to the place to be searched.”) (citation and internal quotations omitted); United States v. Vega-Barvo, 729 F.2d 1341, 1349 (11th Cir.1984) (“It is not the profile, however, but the factors which make up the profile which are crucial to whether or not there is a reasonable suspicion.”); United States v. Mosquera-Ramirez, 729 F.2d 1352, 1353 (11th Cir.1984) (“[A]n x-ray search performed at the border is reasonable if based on the same amount of suspicion required for a strip search.”); United States v. De Gutierrez, 667 F.2d 16, 19 (5th Cir.1982) ( “The well-established rule in this circuit is that a strip search conducted at the border meets the requirements of the Fourth Amendment if it is supported by reasonable suspicion on the part of the customs agent.”) (internal quotations omitted).

It is safe to assume that more powerful backscatter x-ray technology could tempt law enforcement into relishing “Superman” powers. Therefore, it is important to scrutinize the upcoming backscatter x-ray cases for not only the reasonableness of the suspicion claimed by law enforcement prior to resorting to a backscatter x-ray search but also for the possible surreptitious use of the backscatter x-ray followed by sham searches conducted with illegally obtained foreknowledge of the presence of contraband.

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Nov
14

PAROLE COMMISSION VS. CONSTITUTION – BET ON DUE PROCESS

In an upcoming bout between the Parole Commission and the United States Constitution, bet on due process of law to win by knockout in less than 6 rounds.  The first round is the local parole panel review, the second round is the regional office review, the third round is the national office review, the fourth round is the federal district court review under habeas corpus, and the fifth and probably final round (if the federal district judge denies relief) is the federal circuit court review on appeal.  Rare cases can reach a sixth and final round of review by the Supreme Court.  It is most likely that the upcoming bout will go five rounds.

The Parole Commission has lived long and its budget has prospered through various federal administrations over the many years of its existence.  However, to the extent that the continued employment of parole examiners is only justified by leftover cases of prisoners qualified for mandatory 30-year release dates under 18 USC 4206(d), then the agency must close its doors to holding such administrative reviews because this statute as applied presently violates the United States Constitution.

Those cases must receive judicial review rather than administrative review conducted by employees of the Parole Commission in order to pass constitutional muster.  The statute as applied breaches the fundamental constitutional promises of due process and equal protection of the law.  The constitutional argument is further explained below.

Fundamental constitutional guarantees of due process, both substantive and procedural, and equal protection of the law, shall always require that all prisoners with a vested liberty interest in a statutory mandatory date of release (the “MR date”) must be accorded the same process of law that is due under the circumstances.

“Dangerous sexual offenders” (aka “sexual predators”), under 18 USC 4248, are entitled to an evidentiary hearing before a district court on the issue of recidivism whenever the government objects to their mandatory release dates based on a submitted “high probability” of recidivism.  A district court judge must find “clear and convincing” evidence showing a “high probability” of a repeat sex offense upon release before an extension of the Judgment and Commitment Order (the “J&C”) can be issued to impose continued commitment beyond the sex offender’s mandatory release date.

Presently, all of the other federal prisoners entitled to a mandatory release date after service of 30 years of their lives in prison are being given administrative hearings before parole examiners where the prediction of recidivism is made by a finding of a preponderance of the evidence. A mere preponderance finding by parole agents cannot trump a mandatory 30-year release date.

An Article III Judge must make the prediction of recidivism whenever the crucial forecast is the only statutory obstacle to liberty because the prisoner can show 30 years of satisfactory prison conduct.  Thirty years of good prison conduct should be treated by any reviewing court as a criminological predictor of a low probability of a parolee returning to crime in his or her older age.

Research conducted for a man who has served nearly 30 years of a century-long sentence supports the argument that he has a vested liberty interest under 18 USC 4206(d) upon completion of 30 years of his life served in prison.  In fact, all of the qualified prisoners should preserve a due process/equal protection challenge to the parole agency’s administrative review where agency employees use a mere preponderance of the evidence to predict future recidivism and deny the mandatory 30-year release date promised under 18 USC 4206(d).  In an abundance of caution, parole applications should be submitted as soon as possible because 4206(d) is presently set for repeal next year on 11/1/11 (although further extensions of the repeal date are possible).

In cases where dangerous sexual predators have reached their mandatory release date, 18 USC 4248 provides that the government must apply with a district court to seek extension of the commitment order beyond a mandatory prison release date.  A district court judge must then hold a public evidentiary hearing and make a finding based on “clear and convincing evidence” (i.e., a “high probability”) that the sexual predator still poses a risk of harm to others if continued commitment is to be ordered. The analogy to assist the constitutional analysis of 18 USC 4206(d) “as applied” should be clear.

18 USC 4206(d) vests a liberty interest upon service of 30 years given the mandatory language (“shall”) of the prison release statute.  It is not a matter of mere eligibility at the end of 30 years, the statute clearly vests prisoners serving parolable terms with a mandatory 30-year release date.  There are only two exceptions that can trump the release date as discussed below.

Many elderly prisoners today have been in prison for more than 25 years and often more than the 30-year date vested under the unambiguous language of 18 USC 4206(d).  In order to overcome the 30-year mandatory release date, the government can only rely upon two exceptions – (1) poor institutional progress/adjustment and/or (2) the likelihood of recidivism upon release.

For parole agency employees to predict recidivism for a prisoner who has served 30 years in prison arguably amounts to a “crystal ball” prediction without the protections of procedural due process. The constitutional argument is that the liberty interest guaranteed by 4206(d) cannot be overcome by a mere preponderance of the evidence finding made by parole examiners. These mandatory 30-year release date cases, where prisoners have a clear vested liberty interest under 4206(d), should be entitled, at a minimum, to no less than the same judicial process accorded to dangerous sexual offenders.

Prisoners entitled to release under 4206(d) after 30 years should only be denied their liberty if (1) the government formally opposes release and (2) a district court finds “clear and convincing evidence” of either unsatisfactory prison conduct as an indicator and/or a high probability of recidivism.  That is the procedural due process accorded under 18 USC 4248 to a sexual predator before commitment beyond a mandatory release date can be ordered.  The Constitution guarantees all offenders equal protection of the law, and all must be accorded the protection of the process that is due under similar circumstances.

The due process/equal protection challenge to 4206(d) “as applied” would uproot the Parole Commission and discontinue the agency’s administrative review of all mandatory 30-year release date cases.  The agency’s employees cannot be empowered to keep a human being locked up beyond the mandatory 30-year date on a mere preponderance of the evidence of likely recidivism. Only a district court judge can make the initial prediction of the likelihood or unlikelihood of recidivism in these cases because the reflection inside “the crystal ball” must be “clear and convincing” rather than a murky non-judicial preponderance finding made by parole agency employees.

Only an Article III Judge can render an informed decision after a full evidentiary hearing.  The burden of proof belongs to the government if it opposes release. The government must show a high probability of recidivism by clear and convincing evidence. Because that is what the law requires before a prediction of recidivism can be made in sex predator cases to deny a mandatory release date, all other offenders with a mandatory release date must be accorded no lesser protection where a similar prediction of recidivism is the only obstacle to freedom erected by the government.

There are only a few old-law stragglers still in the prison system who fall under 4206(d)’s Congressional promise of a 30-year mandatory release date so the judicial relief requested would neither open the floodgates nor cause any prejudice to the parties. The prediction of recidivism is often the only hurdle to be overcome in 4206(d) cases. Therefore, if the constitutional promise of due process and equal protection of law still has any vitality, then all prisoners with a mandatory release date, not just sexual predators, must be accorded the same right to an informed judicial finding after a plenary evidentiary hearing in district court.

The fight between the Parole Commission and the United States Constitution will end by knockout in less than six rounds. Betting against due process and equal protection of law is “a sucker’s bet.”

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Nov
13

MODERN CRIMINAL DEFENSE – A SIMPLE SCIENTIFIC APPROACH

The modern practitioner of criminal defense takes many shapes and forms, including, but not limited to the quintessential overburdened public defender with a long line of cases in his or her “to do” pile.  With restrictive public resources available, public defenders are often overworked and lack the scarce commodity of time to microscopically analyze each case assigned to their care.  The high percentage of cases that “plead out” induces apathy in the heart of public defenders – a disinflation of the passion for justice.  There are dangers in accepting such an apathetic status quo. An assembly line approach to criminal defense is a sure recipe for disaster.

A few years ago, a young medical student from Mexico was driving on an interstate highway in California. Moments before, he had picked up a heavy cardboard box from a suspected drug stash house that was under surveillance by state narcotics agents. The surveillance agents observed him place the box inside his car trunk and get back on the interstate highway.  At the request of the interdiction agents, a California Highway Patrol (“CHP”) began to tail the vehicle suspected of carrying contraband to effectuate a desired “traffic stop.”  The CHP dispatch came with specific instructions to stop the vehicle.  A “textbook” pretextual traffic stop followed shortly thereafter.

The young motorist was driving carefully within the posted speed limits while other speeding vehicles passed him, but the highway patrol officer was on a mission and effectuated the traffic stop on the fabricated basis that the vehicle was impeding traffic (apparently by not speeding).  The officer asked to see a driver’s license.  The young man produced a valid Mexican driver’s license issued in Baja California, a valid Mexican voter registration card, and a border crossing card showing that he had legally entered California after crossing the international border that same morning.  The CHP officer arrested the young motorist for driving without a valid California driver’s license and proceeded to open the trunk of the vehicle to conduct a search of its contents.  The sealed cardboard box inside the trunk contained approximately 50 lbs. of commercial-grade marijuana.

The assigned public defender told his young client that the case was indefensible and that a plea to a felony drug charge was the only rational choice.  God must have intervened on behalf of the future doctor, as the young man with no criminal record almost became the victim of a state public defender who was either woefully incompetent or simply “burnt-out.”

Just days before the young man was scheduled to enter a guilty plea, Sherman M. Ellison, a seasoned criminal defense lawyer from California with a flaming passion for justice of William Kunstler proportions, entered the picture accompanied by his loyal, tad autistic legal research clerk who was then working for Ellison via the internet ensconced on a cove beach in the South of Brazil while watching whales from Antarctica give birth and mate.  The eccentric duo gave the story a happy ending.

Ellison had been retained to represent the young man’s co-defendant (the alleged drug supplier who owned the house under surveillance by narcotics agents), but he came to the young medical student’s rescue anyway by preparing a motion to suppress all of the drug evidence as the product of an illegal search incident to illegal arrest (which the public defender gladly adopted). The young student came dangerously close to a life-changing drug conviction and prison time, neither of which would have enhanced his chances of becoming a medical doctor.

Make a long story short, it is not illegal for a nonresident adult to drive in California with a valid foreign driver’s license. See California Vehicle Code § 12502(a)(1) (“The following persons may operate a motor vehicle in this state without obtaining a driver’s license under this code: (1) A nonresident over the age of 18 years having in his or her immediate possession a valid driver’s license issued by a foreign jurisdiction of which he or she is a resident”).  Therefore, the search incident to arrest that followed the illegal arrest constituted paradigmatic “fruit of the poisonous tree” and all of the evidence had to be suppressed. See Wong Sun v. United States, 371 U.S. 471, 484-488 (1963) (the Fourth Amendment’s exclusionary rule applies to statements and evidence obtained as a product of illegal searches and seizures).

Rather than obtain a guilty plea in the case that had been described by the public defender as “indefensible,” the prosecution was forced to drop all of the charges against the young man who was allowed to go back to his medical studies as a free man with an unblemished record.

When seeking optimum results, defense lawyers should find the time to dissect a case for methodic analysis.  A simple scientific approach that patiently breaks down the entire spectrum of relevant events was followed by the defense team.  Basic respect for human freedom demands that level of dedication and attention to detail.

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Nov
9

ROMEO & JULIET FOREVER – STIGMA FOR LIFE

Miami attorney Antonio Jimenez, listed by the Florida Bar as a member of the “Young Lawyers Division,” is poised to make law of great public importance in the Third District Court of Appeals that will affect a long line of high-school “Romeos” and other youthful offenders who engaged in consensual sexual acts with their “Juliet” younger victims.  Most often, criminal charges are preferred by parents.  The question posed by the appeal taken by the state attempts to limit the age eligibility criteria of the Florida statute known as “the Romeo & Juliet Law.”  The legal issue is of such great public importance that it could easily reach the Florida Supreme Court once so certified by the Third District Court of Appeals.  The circuit courts requires proper guidance in applying the statute.  However, at present, there are less than half-a-dozen published opinions interpreting the statute.

The Florida legislature passed Fla. Stat. §943.04354 (“the Romeo & Juliet Law”) in 2007 shortly after the “Adam Walsh Act,” 42 U.S.C. § 16901 et seq., took effect in 2006.  A complete review of the legislative history shows a clear intent by the State of Florida to comply with the federal statutory scheme.  See Summary Report by Senator Argenziano, Senate Judiciary Committee and Criminal Justice Committee (CS/CS/SB 1604 changed Florida’s laws regarding the registration of sexual offenders to comply with the Adam Walsh Act); see also Miller v. State, 17 So.3d 778, 781 (Fla. 5th DCA 2009) (“There can be no doubt that the Legislature intended Florida’s sexual offender registry to conform to the Adam Walsh Act so that Florida will continue receiving federal funding for crime prevention that is tied to compliance with the Act.”); accord Staff Analysis of Florida Senate Committee on Judiciary at 8 (noting that “purpose” of promulgating §943.04354 was an attempt to “address concerns about the registration of some youthful sexual offenders (sometimes described as the “Romeo and Juliet” group), while complying with registration requirements of the Adam Walsh Act.”).

Distilling legislative intent from the statutory scheme taken as a whole and from the purpose for which the Florida Legislature created Fla. Stat. §943.04354 (the “Romeo and Juliet Law”), it is readily apparent that the statute coveys a broad resolute intent to remove the lifelong stigma of sex offender registration in cases where a youthful offender engaged in consensual sexual conduct with a victim.  ”Congress made clear [through 42 U.S.C. §16911(5)(C)] that it provided an exception for consensual conduct to eliminate the harsh consequence of lifetime inclusion on the sex-offender registries for young people who engage in consensual sexual conduct – so-called ‘Romeo and Juliet’ offenders.” Miller, 17 So.3d at 781; id. at n.6 (“…the Adam Walsh Act provides that offenses involving consensual sexual contact are not sex offenses for purposes of the federal act given certain provisions and the age of the offender and the victim. Therefore, insofar as not conflicting with the Adam Walsh Act, the court hearing the motion would be required to determine that the violation involved consensual sexual conduct.”) (quoting Staff Analysis of Florida Senate Committee on Judiciary at 9).

Nothing in the language of the federal statute suggests anything other than a purposeful intent to remove public disclosure of information that federal jurists have recently described as “severely damaging” to [youthful offenders]’ “economic, social, psychological, and physical well-being[.]” United States v. Juvenile Male, 590 F.3d 924, 933 (9th Cir. 2010) (registration provision “imposes a disability that is neither ‘minor’ nor ‘indirect,’ but rather severely damaging to former juvenile offenders’ economic, social, psychological, and physical well-being” and finding the degree of damage former youthful offenders could suffer in their adult lives most compelling in the analysis of the statutory requirement). Concerns with lifelong stigmatization, and its concomitant severe damages, generated the conscientious promulgation of Fla. Stat. §943.04354.

The plain language of §943.04354 states that a defendant is eligible for removal of the registration requirement as long as the defendant is not more than four years older than the victim who was 14 years of age or older but not more than 17 years of age at the time the person committed the sexual violation which must have been consensual in nature. The Third District Court of Appeals in State v. Marcel will soon interpret the scope of the Romeo & Juliet Law for the first time in a case of great public importance because the circuit courts currently lack proper guidance as to how to apply the age criteria set forth in the statute.

Because the purpose of enacting §943.04354 was to achieve conformity with its federal counterpart, federal precedent provides the best available guidance on interpreting the scope of the Florida statute. See United States v. Abregana, 574 F.Supp.2d 1123, 1144, n.8 (D. Hawaii 2008) (“Congress carved out a specific exception where it intended there to be one. The Sex Offender and Registration Notification Act [“the Adam Walsh Act”] provisions, for instance, account for consensual sexual activity between minors and between a minor and a non-minor by excluding ‘consensual sexual conduct’ from the definition of sex offense ‘if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.’”) (quoting 42 U.S.C. §16911(5)(C)) (brackets added).  The broadest possible reading of the statutory language will serve the clear purpose of the legislation – removing youthful offenders who engaged in consensual acts with their victims from the sex offender registry. Record of arrest and conviction will still remain part of the public record in cases where removal from the registry is ordered.

To the extent that the State has attempted to inject ambiguity into the “Romeo & Juliet Law,” the rule of lenity which is codified at Fla. Stat. §775.021(1) requires the result most favorable to the accused. See State v. Huggins, 802 So.2d 276, 277 (Fla. 2001) (“A penal statute is ambiguous if reasonable people can offer different, but reasonable, interpretations.”); see also United States v. Inclema, 363 F.3d 1177, 1182 (11th Cir. 2004) (“[W]hen there are two rational readings of a criminal statute, one harsher than the other, the rule of lenity dictates that we choose the harsher one only when Congress has spoken in language that is clear and definite.”). The lenity principle “requires criminal statutes, including penal statutes, to be strictly construed in the accused’s favor.” McGhee v. State, 847 So.2d 498, 503 (Fla. 4th DCA 2003) (citing Perkins v. State, 576 So.2d 1310, 1314 (Fla. 1991) and State v. Byars, 823 So.2d 740, 742 (Fla. 2002)).

Where the stakes are so high – lifelong stigmatization – the Third District will hopefully render a decision that shows solicitude to the social importance of removing youthful offenders who engaged in consensual sexual acts from the sex offender registry. No youthful offender who engaged in consensual sexual acts should be labeled a sex offender for life provided the offender was not more than four years older than the victim who must be at least 14 years old but not more than 17 years old.

Registration and notification is “stigma for life.”  It is public punishment and ostracism for life.  Revisiting the application of the ex post facto clause may be warranted in those cases where the registration requirement has been retroactively applied to even adult convictions entered prior to the enactment of the registration and notification requirement.

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