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).

Several months ago, the Second Circuit issued an opinion in In re Terrorist Bombings of United States Embassies in East Africa, 552 F.3d 157 (2d Cir. 2008), and became the first appellate court to hold that the government does not need a warrant when it conducts an extraterritorial search or seizure affecting an American citizen.  In doing so, the court sanctioned the government’s practice of conducting searches and seizures abroad without first demonstrating probable cause to an impartial magistrate.

Facts

Wadith El-Hage was an American citizen living in Nairobi, Kenya.  From August 1996 through August 1997, American intelligence officials monitored El-Hage’s cell phone and a telephone in his residence as part of their investigation of al Qaeda’s presence in Kenya.  El-Hage claimed that 25 percent of the intercepted calls were made by or to a Kenyan businessman who had no affiliation with al Qaeda and that transcripts retained by the government reflected calls between El-Hage and his wife concerning their children.  At no time did the American intelligence officials obtain a warrant to monitor El-Hage’s phone lines.

In August 1997, U.S. officials, in conjunction with Kenyan authorities, searched El-Hage’s home in Nairobi and seized several items.  Although El-Hage’s wife was presented with a Kenyan warrant authorizing a search for stolen property, the American officials had not obtained a warrant from a U.S. magistrate.

Facing prosecution for his involvement in al Qaeda’s terrorist activities, El-Hage moved to suppress evidence obtained from both the government’s electronic surveillance of his phones and the government’s seizure of items from his home.  El-Hage argued that the searches were unlawful under the Fourth Amendment because they were not authorized by valid warrants and, alternatively, because the searches were unreasonable. 

The Holding

The district court denied El-Hage’s motion according to the “foreign intelligence exception” to the warrant requirement and on the related grounds that application of the exclusionary rule would not deter intelligence officials from conducting similar searches in the future.  On appeal, the Second Circuit affirmed on different, more sweeping grounds.  The court held categorically that the Warrant Clause of the Fourth Amendment does not govern searches conducted abroad by U.S. agents regardless of whether the searches involve U.S. citizens.  The court rested its decision on four grounds. 

First, the court observed that foreign searches historically have not been subject to the warrant procedure.

Second, the court rejected the possibility that the Warrant Clause required a U.S. official to obtain a warrant from a foreign magistrate before conducting an extraterritorial search or seizure.  The court suggested that empowering a body other than the executive branch of the U.S. government to restrict American actions abroad would interfere with the government’s ability to pursue effective foreign policy.  The court explained, “the Constitution does not condition our government’s investigative powers on the practices of foreign legal regimes ‘quite different from that which obtains in this country.’”

Third, relying on “guidance” from the Supreme Court in United States v. Verdugo-Urquidez, the court explained that a warrant obtained from a U.S. magistrate would be a “dead letter” in a foreign country because it would have no legal effect.  The court was not persuaded by the argument that the purpose of a warrant is to have a “neutral and detached magistrate” evaluate the reasonableness of a search and satisfy him or herself that the search is justified by probable cause.  The court explained that the interest served by having a judicial officer make a disinterested determination was “lessened” in the context of extraterritorial searches because a domestic judicial officer would have difficulty determining the reasonableness of a search on foreign soil and because courts should respect the wide discretion given to the executive branch in foreign affairs.

Fourth and finally, the court observed that there is no clear means by which a U.S. judicial officer could be authorized to issue warrants for overseas searches.

Having found that the government was not required to obtain a warrant, the court concluded that the intrusion on El-Hage’s privacy was outweighed by the government’s need to monitor the threat presented by al Qaeda to national security and, on this basis, held that the searches satisfied the Fourth Amendment’s reasonableness requirement.

Conclusion

Terrorist Bombings limits the extraterritorial reach of the Fourth Amendment by holding that the U.S. government may conduct a search or seizure of an American citizen abroad without a warrant.  Before the U.S. government monitors phone calls, seizes documents or freezes bank accounts in another country, it need not demonstrate probable cause or describe the person or property to be searched with particularity.  Instead, in order to satisfy the Fourth Amendment, the search or seizure need only qualify as reasonable. 

Most courts have held that an extraterritorial search is reasonable if it complies with the law of the foreign jurisdiction in which the search takes place.  And even when an extraterritorial search violates the law of the foreign country, the fruits of the search will not be excluded from a criminal case as long as American law enforcement agents are simply told by a foreign official that the search is legal.     

Paradoxically, the rule adopted in Terrorist Bombings seems to limit or expand the U.S. government’s power to investigate its own citizens in foreign countries according to the practices of foreign legal regimes – a scenario the Second Circuit expressly sought to avoid.  It is thus unclear what force the Fourth Amendment has at all if only foreign law and the representations of foreign officials protect an American citizen traveling or storing property abroad.  Indeed, Judge Reinhardt of the Ninth Circuit expressed this very concern in his dissent in Barona:

Under the majority's holding, the Fourth Amendment's requirements are wholly redundant since they provide nothing more than is already provided by foreign law. In fact, under the majority's rule, the Fourth Amendment provides even less protection than foreign law since, according to the principal case on which the majority relies, the Constitution does not even require foreign officials to comply with their own law; all that is required is that American officials have a good faith belief that they did so. . . . [W]hen Americans enter Iraq, Iran, Singapore, Kuwait, China, or other similarly inclined foreign lands, they can be treated by the United States government exactly the way those foreign nations treat their own citizens--at least for Fourth Amendment purposes. The majority's failure to heed these warnings ensures that when, as here, the United States government is unable to obtain a search warrant because it lacks probable cause, it can simply wait until a suspect goes abroad . . . .  Barona, 56 F.3d 1087, 1100-01 (Reinhardt, J. dissenting).

Whether the U.S. government will expand its extraterritorial searches in response to Terrorist Bombings remains to be seen.  In the meantime, targets of criminal investigations who have the means to flee to other countries may think twice about doing so.

The judicial deconstruction of police encounters with defendants has produced a notable decision in the case of United States v. Brito, 2008 WL 53781122 (S.D.N.Y. December 22, 2008).  Addressing such questions as when a defendant is deemed to have implicitly waived his right to remain silent, and when a police officer has engaged in the “functional equivalent” of interrogation, SDNY Judge Stephen Robinson ruled that statements made by the defendant prior to an explicit waiver of his Miranda rights were admissible against him, but he suppressed later statements made after an invocation of the right to remain silent and in response to an officer’s comments that were designed to elicit an incriminating response.

Bargaining or Just Talking

Yonkers police officers assigned to a DEA Task Force arrested Jose Brito in March of last year and charged him with crack distribution.  Three kilograms of alleged cocaine were seized at the time of his arrest, although field testing suggested a portion of the drugs was beat.  In custody, after being read his Miranda warnings, and confirming he understood them, Brito asked police about the charges against him.  When advised he was being charged with delivering three kilograms of cocaine to an undercover police officer, Brito reportedly responded: “Well, that’s now, but how about after the drugs are analyzed?”  When informed that he was being charged in the federal system, and faced significant penalties, Brito allegedly responded: “Federal, I know the federal system.  My attorneys will take care of this.”  Asked if he would cooperate with the investigation, Brito responded: “I ain’t like that.  I don’t give … up people,” and then refused to sign a Miranda warning card.

Implicit vs. Explicit Waiver

The defense argued that Brito had not waived his right to remain silent in this dialogue.  While a defendant may waive his Miranda rights explicitly or implicitly, the defense argued that Brito’s remarks were not an implicit waiver, but rather a “negotiation of sorts, in which [Brito] was seeking additional information prior to deciding whether to waive his rights.”  Judge Robinson didn’t buy that argument, holding that Brito implicitly – by his conduct – waived his right not to speak with the police.  Referring to Brito’s statements about “after the drugs are analyzed” the court commented: “a more realistic assessment is that Mr. Brito thought he had outwitted law enforcement authorities,” not that he was attempting to solicit additional information.  “Mr. Brito’s conduct . . . demonstrates that he was choosing not to exercise any of his Miranda rights but was willing to engage [the detective] in a dialogue about the investigation.” 

“Functional Equivalent” of Questioning

On the day of Brito’s arrest, following the initial questioning, a detective approached Brito from outside his holding cell and told him that a criminal history search had revealed that Brito had serious prior charges, including one for robbery.  Brito responded, in part: “[Y]ou know, I’m not a bad guy. I only robbed drug dealers. I don’t rob good people.”

These statements, the court held, would be suppressed.  Unlike the first set of statements, these were not the product of an implicit waiver of Brito’s rights.  He had invoked his right to remain silent and the police had initiated this new conversation.  Brito’s statements were responses to the “functional equivalent” of continued questioning by police: “In this case, Detective Pina told Mr. Brito that a criminal history search had revealed that Mr. Brito had a serious criminal history, including a robbery charge. Plainly, Detective Pina intended his comment about Mr. Brito's criminal history to elicit a response or cooperation from Mr. Brito after Mr. Brito already had indicated that he was unwilling to cooperate further.”

Foreign extraditions are likely to become more and more frequent in an increasingly globalized world, so United States v. Samuels, 2009 WL 367578 (E.D.N.Y. February 10, 2009), is an interesting primer on the procedure and criteria for granting a certificate of extraditability.  In Samuels, EDNY Magistrate Mann granted the government’s request on behalf of Canada for such a certificate.  The court rejected the defendant’s primary claim – that the government had failed to establish probable cause to believe that Samuels had committed the charged acts of murder and attempted murder (but he did get an impressive amount of discovery in the process). 

Facts and Procedure

Defendant Kushi Samuels was charged in Canada with one count of first degree murder and two counts of attempted murder.  Samuels was allegedly one of two gunmen who entered a Montreal nightclub in 1995.  While Samuels allegedly shot at an individual inside the club, two other men were shot outside, one fatally. 

Under 18 U.S.C. § 3184, before issuing a certificate of extraditablity, the the court must examine the evidence to confirm that (1) there is a valid extradition treaty between the United States and the requesting state; (2) there are criminal charges pending in the requesting state; (3) the individual before the court is the individual sought by the requesting state; (4) the charges are extraditable offenses under the applicable treaty and (5) there is probable cause to believe that the individual before the court committed the crimes charged. 

Probable Cause Challenge

The key issue in Samuels was the existence of probable cause.  In making this determination, the court noted that it may consider hearsay evidence and summarizations, as the court’s task is essentially a “preliminary examination” to determine if there is sufficient evidence to hold the defendant to await trial.

Samuels argued that if he was, in fact, inside the dance hall when the shootings outside the club occurred, then he could not have been outside the club and a participant in those shootings.  This argument invoked the “principle of speciality.”  The court observed: “Under the principle of speciality, a judicial determination of extraditability must be made for each separate offense, as the extraditing country may not punish an individual for any crimes committed prior to extradition other than those for which he was extradited.”

Rejecting the argument, Judge Mann pointed out that both the U.S. and Canada have accomplice liability statutes, and further noted that because aiding and abetting is a theory of responsibility, not a separate crime, it need not be separately charged.  Here, the government made an adequate showing that Samuels and the alleged shooter acted with a common intent.

Samuels also challenged the reliability of certain witness statements – including contradictory eye witness descriptions of the fleeing gunman.  But the court held that “[t]he inferences to be drawn in the face of conflicting proof present an issue to be resolved at trial in the requesting country.”  In addition, as to his arguments that certain witnesses were inherently incredible, she noted that the right of the defendant to introduce evidence at an extradition hearing is “limited to evidence that explains rather than contradicts the demanding country’s proof.”  The extradition court may consider evidence that “obliterates” probable cause (such as evidence of a forced confession) but not evidence, like that offered by Samuels, which merely challenges the credibility of government witnesses.

[W]e think that the best way to address drug-related violence is to ensure the most severe sentences are meted out to those who commit violent offenses.  However, increased penalties for this conduct should generally be imposed on a case-by-case basis, not on a class of offenders, the majority of whom do not use any violence or possess a weapon.

For the time being, nothing will change: “Until a comprehensive solution – one that embodies new quantity thresholds and perhaps new sentencing enhancements – can be developed and enacted as legislation by Congress and as amended guidelines by the Sentencing Commission, federal prosecutors will adhere to existing law.”  Recognizing, however, “federal courts have the authority to sentence outside the guidelines in crack cases or even to create their own quantity ratio,” federal prosecutors “will inform courts that they should act within their discretion to fashion a sentence that is consistent with the objectives of 18 U.S.C. § 3553(a) and . . .  will bring the relevant case-specific facts to the courts’ attention.”

So, in the meantime, what can practitioners do?  Well, for one thing, try to get plea agreements based on a 1:1 ratio.  DOJ’s new policy involves achieving crack-cocaine parity with regard to both mandatory minimums and the guidelines.  While the Department has not yet formally implemented any changes, its plans to try to eliminate the disparity support a less hard-line approach in plea-bargaining crack cases, especially cases involving non-violent offenders.  And of course, DOJ’s commitment to an elimination of any disparity, coupled with its acknowledgement of a sentencing court’s powers to develop whatever ratio it chooses, are additional ammunition in the arsenal of reasons why a sentencing court should not wait for Congress to act, but should utilize a 1:1 crack-cocaine ratio right now.

Facts

Simels and Irving were arrested on September 10, 2008, and charged, along with their client Shaheed Khan, in a chillingly detailed complaint with conspiring to intimidate potential witnesses in Khan’s pending narcotics case.  At issue in the December 18 decision was the government’s production of three kinds of material: documents and computers seized from Simels’ office (none of which had been viewed by the prosecution team), and audio-visual recordings of meetings between all three in the attorney visiting rooms of the MCC.  None of the items seized from the office had been viewed by the prosecution team.  Some of the MCC intercepts had been partially reviewed by a “wall” AUSA and “wall” team of agents prior to the lawyers’ arrests, and some of these had already been provided to the prosecution team.

The parties worked out a protocol for the review of the documents, which included establishing a “privilege” team of prosecutors that would not include members of the prosecution team, and a procedure for resolving disputes over the disclosure to the prosecution team of items the defense claimed were privileged.  The court appointed a Special Master, David Wikstrom, to extract relevant files from the seized computers, which would then be subject to the same protocol as the non-electronic material.  Going forward, the parties agreed that no additional audio-visual recordings would be provided to the prosecution team until the defense team had had an opportunity to review them and raise privilege claims.

Simels and Irving moved for an order to permit them to review the three sets of materials.  Khan moved for discovery to be halted until his drug case had been resolved.

Holding

First, the court addressed whether Khan was deemed to have waived the attorney-client privilege by permitting Simels and Irving to divulge confidential information to their lawyers.  Holding he had not, the court held, citing Proposed Rule of Evidence 511, that “the privilege should not bar a lawyer from seeking legal advice regarding confidential information, and that the privilege holder should not be punished for allowing such a consultation.”  As for work product privilege, the court held Khan had no right to prevent Simels and Irving from disclosing work product to their own lawyers.  The work product rule was designed to prevent compulsory disclosures to adversaries, not voluntary ones to one’s own counsel. 

The court denied Khan’s request to halt discovery, but set up deadlines and procedures whereby Khan could assert a claim of privilege over a specific item and the government’s privilege team would get an opportunity to respond.  While Khan understandably did not want to litigate discovery issues at the same time as he prepared his defense in his narcotics case, that fact did not “outweigh the interests of the public, Simels, and Irving in a speedy trial of this case.”

Comment

The prosecution of lawyers for acts of advocacy has gained some traction lately with the publication of the notorious torture memoranda of the Bush Administration.  But, in an adversarial system such as ours, the concept has a chilling effect on aggressive advocacy.  That’s why the prosecution of lawyers for lawyering is different. 

The concerns about prosecuting lawyers are in no sharper relief than in the context of prosecuting criminal defense lawyers.  Their clients are among the most reviled in society and often their lawyer is the only shield between them and the might of the state.  Their lawyer may be the only person to whom they can talk freely, the only person they truly trust, and the only person to bring them to a rational resolution of their case.  The techniques lawyers use to bring clients from denial to acceptance are many and varied.  Indulging one’s client is not the same as conspiring with him.   

Those of us who are troubled when lawyers are targeted (even ones who bring the profession into disrepute) can take solace in Judge Gleeson’s Simels decision.  It lays out an important blueprint for ensuring the “fair and expeditious resolution of the thorny issues of privilege that arise when the government seizes materials from a law office.”  It subjects both claims of privilege and the invocation of the crime-fraud exception to adversarial testing and judicial review.  Most importantly, it requires that the defense be permitted to review any post-arrest seized materials and raise applicable privilege claims before they are provided to the prosecution team. 

But the decision does not address a more fundamental question: what sort of limits should be imposed on the investigation of lawyers prior to any arrest?  Here, for example, the government deployed a wired cooperating witness into a criminal defense attorney’s office to record conversations about strategy in Khan’s trial.  What checks and balances, if any, should govern such a profound intrusion into the attorney-client relationship?  That issue is the subject of a fascinating pending motion to dismiss and/or suppress evidence in the Simels case.  In that motion, the defense argues persuasively that the use of this kind of investigation technique against a lawyer for acts of advocacy should be subject to judicial supervision – something that did not occur here.  Stay tuned for what is likely to be another notable decision in the area of the prosecution of lawyers. 

Lawyers: Gerald Shargel, Henry Mazurek (Robert Simels); Steven Brounstein, Papa, Depaola and Brounstein (Shaheed Khan); Javier Solano and Lawrence Berg (Arienne Irving); AUSAs Paul Schoeman, Steven D’Alessandro

Should a judge seal portions of a defendant’s sentencing memorandum that paint a co-defendant as a wife-abuser?  No, WDNY Judge Larimer, holds in United States v. Roeder, 2009 WL 385448 (W.D.N.Y. February 13, 2009).  In support of her request for a sentence of probation – well below the applicable guideline range of 41-51 months – Constance Roeder's sentencing memorandum portrayed her relationship with co-defendant husband John Nicolo as abusive, and attached several letters from Roeder’s siblings describing Roeder’s relationship with Nicolo, as well as private letters from Nicolo to Roeder, which apparently demonstrated the disintegration of the relationship.  Judge Larimer concluded that sealing the memorandum would unfairly disadvantage Nicolo, pointing out that Roeder undoubtedly wanted to prevent Nicolo from gaining access to, and thereby disputing, the information that made him look bad.

While access to Nicolo could have been permitted by means of a limited sealing order, the court ordered that all this information would be publicly filed.  Since Roeder was seeking leniency, the public had a right to know “the basis upon which counsel seeks a reduced sentence.” 

The court, however, granted Ms. Roeder’s motion to seal confidential medical and mental health information: “Such documents involving patient/client privileges and confidential medical and psychological information should be sealed. Such letters are often submitted directly to the probation officer and if that had been the case, the documents clearly would have been shielded from public access. To protect the confidentiality of this relationship between physician and patient, I believe it is important that such material be sealed.”

Lawyers: Jennifer Zegarelli, Derohannesian & Derohannesian (defendant); AUSAs Richard Resnick, Frank Sherman