Victims’ Privacy vs. Public’s Right of Access
The intersection of these competing issues is the subject of a notable decision by Judge Chin on the disclosure of victims’ emails he received prior to Madoff’s guilty plea, United States v. Madoff, 2009 WL 1678097 (S.D.N.Y. June 17, 2009). Prior to that plea, the court had issued an order advising victims how they “could express their desire to be heard on the issues raised in this case.” Subsequently, several news organizations sought access to the emails sent in response to this order, including all identifying information on the emails. Since he had not previously warned the authors that their communication may be disclosed, Judge Chin directed the government to canvas the authors’ views on disclosure. Some wanted to maintain their privacy, some were happy to go public, and most didn’t respond at all. Reviewing the law on access to judicial documents and the right to privacy, the court concluded that identifying information would be sealed as to emails where their authors asserted their right to privacy, but where the authors didn’t bother to respond, the entirety of the email, including identifying information, would be disclosed. “Given the victims’ opportunity to object, the very public nature of the case, and the sentiments expressed in many of the emails, I conclude that the presumption of access outweighs the privacy interests of the victims who did not object to the unsealing of their correspondence.” In the same decision, Judge Chin ruled that other documents would remain under seal where disclosure could jeopardize the government’s efforts to recover assets for victims.
Comment
This is an important case on a victim’s right to privacy and to advance notice of public disclosure of communications with the court. It is also an important case for defendants, since there is no suggestion in Judge Chin’s decision that victims’ letters submitted to him in connection with the actual sentencing should be anything but publicly disclosed in their entirety, along with all identifying information. Victims’ letters can have a searing impact at sentencing. At least if subject to the crucible of public scrutiny, the authors may temper some of their (understandable) raw emotion and desire for revenge.
Lawyers: Indira Satyendra (ABC, Inc.); Hilary Lane (NBC Universal, Inc.); Carlotta Cassidy, Esq.(Fox News Network, LLC); AUSAs Lisa Baroni, Sharon Frase.
Early release under the provisions of 18 U.S.C. 3621 (e) for successful completion of RDAP remains an incentive as well, but has been significantly changed by P.S. 5331-02. Whereas offenders who previously completed RDAP and were otherwise eligible for early release were eligible for a sentence reduction of up to 12 months, this new policy substantially reduces the eligibility timeframe for some offenders. Specifically, only those eligible inmates serving 37 months or more will now be eligible for up to a 12 month early release, while those serving 31-36 months will be eligible for only up to a 9 month sentence reduction, and those serving less than 31 months will be eligible for no more than a 6 month sentence reduction. The authority in determining some eligibility factors for early release, for example whether prior offenses or the current offense might preclude early release, is now shifted from the B.O.P. institutions and Regional Offices to the Designation and Sentence Computation Center (DSCC) in Texas. Noteworthy, for the first time, is that certain sex offenders, e.g., possessors of child pornography are not automatically disqualified from early release eligibility. See also P.S. 5162.05 (Categorization of Offenses).
No doubt there will be challenges to this policy, but they will have an uphill battle. See Lopez v. Davis, 531 U.S. 230, 244-45 (2001) (“even if a statutory scheme requires individualized determinations, the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority”).
Disclosure of PSR Section Dealing with Finances
In United States v. Watkins, 2009 WL 1598406 (S.D.N.Y. June 9, 2009) - a study in stupidity or audacity - the third-party petitioner, a defendant in a civil suit commenced by Watkins, sought access to the portions of Watkins’ presentence report dealing with his financial situation. In his criminal case, Watkins had pleaded poverty, received an appointed lawyer and escaped the imposition of any fine; in his civil case, he claimed that he had invested $600,000 in a real estate venture after his sentencing. Citing the “ends of justice” and the “well-established doctrine of judicial estoppel,” SDNY Judge Rakoff held that “where, as here, the accuracy of information relied upon by this and other courts is called into question, the otherwise unflagging confidentiality of presentence reports and probation records must bend.”
Sealing of Sentencing Documents Relating to Defendant's Cooperation
In United States v. Park, 2009 WL 1515660 (S.D.N.Y. June 1, 2009), SDNY Judge Chin denied the New York Times’ motion to unseal redacted portions of letters and transcripts relating to the sentencing of Tongsun Park, who had been convicted after trial of being an unregistered foreign agent for Iraq in the U.N. oil-for-food scandal. Weighing the public’s right of access against the countervailing factors of “the danger of impairing law-enforcement, judicial efficiency, and privacy interests,” the court found that here, the balance tipped in favor of maintaining the materials under seal, since they related to Park’s cooperation in an on-going investigation – though not before the Times’ motion had resulted in some significant additional disclosures (which just underlines the wisdom of litigating like Joe “throw the ball” Nameth).
Lawyers: Michael Kim, Francisco Navarro, Kobre & Kim LLP (defendant); David McCraw (New York Times Company); AUSA Pablo Quiñones
Guest Contributor Justin M. Sher, Esq., writes:
In United States v. Rivera, 2009 WL 1059641 (S.D.N.Y. Apr. 13, 2009), SDNY Judge Baer held that a defendant could not waive his lawyer’s potential conflicts of interest where the lawyer had previously represented two co-defendants and shared an office suite with her father, who represented a third co-defendant. The case is significant because the court concluded that it was obliged to disqualify the lawyer, notwithstanding her client’s waiver, because of multiple potential conflicts.
Facts
The defendant, Hector Rivera, was charged along with 13 other defendants with violating the Hobbs Act by conspiring to hijack Federal Express tractor-trailers. Mr. Rivera’s lawyer, Stacey Richman, Esq., had previously represented two of Mr. Rivera’s co-defendants and continued to share an office with her father, Murray Richman, Esq., who represented a third co-defendant. At the government’s request, the court held a hearing pursuant to United States v. Curcio, 25 F.3d 146 (2d Cir. 1994), to determine whether Ms. Richman’s conflicts of interest were “actual, potential or nonexistent.” Before accepting a waiver of such conflicts, Curcio further obligated the court to (i) advise Mr. Rivera of the dangers that arise from Ms. Richman’s conflicts of interest; (ii) determine whether Mr. Rivera understood those risks and freely chose to take them; and (iii) give Mr. Rivera time to digest and contemplate the risks.
During the hearing, Mr. Rivera received independent legal advice from another lawyer. At the conclusion of the hearing, Mr. Rivera offered to waive Ms. Richman’s potential conflicts of interest.
Holding
Considering the “multiple conflicts of interest together, rather than in isolation,” the court held that the potential conflicts posed by Ms. Richman’s representation could evolve into actual conflicts that were among the “narrow category of conflicts that cannot be waived.” Rivera, 2009 WL 105964, *2 (emphasis added). The court explained that it had no reason to doubt the professionalism of Ms. Richman or her father but that it was precisely because the court expected Ms. Richman to abide by her ethical duties that the court was concerned about her potential conflicts of interest.
First, the court found that Ms. Richman owed continuing duties of loyalty and confidentiality to the two co-defendants who were her former clients. If either co-defendant testified in a way that was adverse to Mr. Rivera’s interests, the court determined that there was a substantial likelihood that Ms. Richman’s ethical obligations would impair her ability to zealously advocate for Mr. Rivera by, for example, limiting her ability to attack her former client’s credibility on cross-examination.
Second, because she practiced law in the same office and shared a staff and fax machine with her father, the court found that Ms. Richman might owe ethical duties to her father and his clients, one of whom was also a co-defendant. The court recognized the possibility that Ms. Richman might overhear or come across information that would be helpful to her client but also would be “ethically off limits.” The court concluded that this too could impair her ability to effectively represent Mr. Rivera.
The court held that the likelihood that one or more of Ms. Richman’s potential conflicts could burgeon into a “severe and actual conflict” created an intolerable risk and “obliged” the court to disqualify Ms. Richman.
Comment
United States v. Rivera is noteworthy for the court’s holding that several potential conflicts of interest were, in aggregate, sufficiently severe that they obliged the court to disqualify a lawyer notwithstanding her client’s offer to waive the conflicts. By finding that it was “obliged” to disqualify Ms. Richman, the court implicitly determined that Ms. Richman’s potential conflicts were analogous to “an actual conflict that is so severe as to indicate per se that the rendering of effective assistance will be impeded . . . .” See United States v. Perez, 325 F.3d 115, 126 (2d Cir. 2003) (emphasis added).
The case is also noteworthy for the court’s suggestion that lawyers who share an office and other resources may owe ethical duties to each other and each other’s clients. The court did not find that Ms. Richman worked for or was otherwise affiliated with her father’s law firm or that she and her father presented themselves to clients as a single firm. Nor did the court explicitly assign significance to the lawyers’ relationship as father and daughter, although this fact certainly makes the case unusual and distinguishable from most other scenarios. The court noted only that Ms. Richman and her father shared an office, staff and fax machine and observed that, as a result, they could come across confidential information concerning each other’s clients. The case thus suggests that lawyers who merely share an office and certain other resources face a greater risk of being disqualified if they represent clients with potentially divergent interests.
The case is notable too because the district court had denied Ness’ motion for bail pending appeal (see here), in part because the court believed there was sufficient evidence to sustain the conviction. The case is therefore a precedent for erring on the side of granting motions for bail pending appeal where the question of whether the appeal raises a close question is . . . a close one.
Facts
Ness ran an armored car carrier business, which was used to transport millions of dollars in narcotics proceeds from drug traffickers. Ness’s dealings with the traffickers allegedly involved a high level of secrecy, including “clandestine meetings to transfer large sums of concealed cash, the use of coded language, and the scrupulous avoidance of a paper trail.” He was convicted after trial of one substantive count of engaging in a money laundering transaction, and one count of conspiracy to commit money laundering transactions and money laundering transportation. The Second Circuit had previously affirmed the convictions, but this decision was vacated by the Supreme Court and remanded for further consideration in light of its holding in Cuellar – a case which held that the concealment element of a money laundering transportation charge requires a showing that the purpose of the transportation was to conceal or disguise the identity of the proceeds.
Holding
On remand, the Second Circuit reversed, rejecting the government’s argument (and the holding of the district court in the bail pending appeal motion) that the surreptitious nature of Ness’s transportation activities established that “the drug proceeds were delivered to his company at least in part for purposes of concealment:”
While such evidence may indicate that Ness was concealing the nature, location, or source of the narcotics proceeds, it does not prove that his purpose in transporting the proceeds was to conceal these attributes. It evidences not “why” he moved the money, but only “how” he moved it. Ness’s avoidance of a paper trail, hiding of the proceeds in packages of jewelry, and use of code words show only that he concealed the proceeds in order to transport them. Under Cuellar, such evidence is not sufficient to prove transaction or transportation money laundering offenses.
The Court also reversed the substantive money laundering conviction under 18 U.S.C. § 1957(a), holding that there was insufficient evidence that either Ness or his company constituted a “financial institution” as defined in the statute.
Comment
The money laundering statute is a key component in the government’s charging arsenal to compel plea bargains. The fact that it is tagged on regularly in prosecutions involving all sorts of crimes was a factor in the Supreme Court’s important decisions in Cuellar, and its companion, Santos. Ness is a significant development in this judicial effort to reign in indiscriminate use of the money laundering statute and its heavy sanctions. Notably (to the extent there is any issue about this), Ness applies Cuellar’s ruling not just to transportation money laundering charges, but also to charges involving transaction money laundering.
Lawyers: Vivian Shevitz, Esq., and Jane Simkin Smith, Esq. (Defendant); AUSAs Jocelyn Strauber, Karl Metzner
Confessions made outside six hours of arrest and before arraignment in court – even if Mirandized and entirely voluntary– must be suppressed unless the delay in presentment was necessary or reasonable, the Supreme Court held in Corley v. United States, 2009 WL 901513 (U.S. April 6, 2009).
The issue in the case turned on whether 18 U.S.C. § 3501 over-ruled or merely limited the Court’s rule in McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1957). The McNabb-Mallory rule held that confessions made during periods of detention that violated the prompt presentment requirement were inadmissible. § 3501 provides, in part, that a confession shall not be inadmissible solely because of a delay in presentment if the confession is found by the trial judge to have been made voluntarily and within six hours of arrest.
Analyzing its language and legislative history, the Court held that § 3501 modified but did not supplant the McNabb-Mallory rule. Essentially, it gives arresting officers a six-hour safe harbor during which a defendant’s statements may not be suppressed solely because of a delay in presentment. “If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.”
This has been the law in the Second Circuit for decades, but what is especially notable about the Court’s decision in Corley is its recognition that the prompt presentment requirement is not “just some administrative nicety” but is an important protection against forced and false confessions. The Court goes on:
In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. ‘[C]ustodial police interrogation, by its very nature, isolates and pressures the individual,’ and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed (my emphasis; citations omitted).
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