New York Federal Criminal Practice Blog

Recently in the Government Misconduct category:


Prejudicial hearsay is hardly ever introduced simply for its mere “context,” and the Second Circuit called out the government on a particularly egregious example of that in United States v. Gomez, No. 08-3829-cr (2d Cir., August 4, 2010).  

The defendant was charged with ecstasy distribution.  At his trial, the government elicited key testimony from a Detective Ryan, who had arrested Gomez’ co-conspirator Rivas, that Rivas had identified Gomez as his supplier.  The communication was by inference:  Ryan testified that he directed Rivas to call his supplier and Rivas called Gomez.  Rivas did not testify.  The government had argued that “the evidence was admissible for the proper, non-hearsay purpose of showing context, in that it explained how Ryan came to place a call to Gomez.”  Gomez countered that the government had elicited from Detective Ryan inadmissible prejudicial hearsay testimony, which communicated to the jury that Rivas identified Gomez as his supplier.

The Circuit agreed, and did not find the error harmless, in part because the error also implicated the Confrontation Clause “the very concerns [of which] … are part and parcel of our harmless error analysis.”

The government continued insistence at the appellate level that the evidence was elicited for a contextual rather than prejudicial purpose so “puzzled and dismayed” the Court, that it added in a footnote:

[It bears repeating that:] The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he
may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

(quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
In United States v. Matos, 2009 WL 2883054 (E.D.N.Y. September 03, 2009), the government got a do-over, but not the result it sought.  After EDNY Judge Garaufis had suppressed drugs seized in a “dropsy” case, finding the testimony of the government’s witnesses “incredible,” “unfathomable” and “absurd” (see here), the government moved for reconsideration and was given permission to present the testimony of no less than six additional agents, as well as additional testimony from the two Judge Garaufis had already found incredible.  The lady clearly protesteth too much . . . In this second decision, parsing the testimony like a slow motion camera – not missing the slightest inconsistency (and there were many) – Judge Garaufis refused to alter his original conclusion, concluding:

The court remains unpersuaded by the Government’s theory that the evidence against Matos was obtained through a series of fantastic coincidences: that, at the precise moment that the team decided it was necessary to seek entry to the apartment, an individual exited the residence, tossed evidence of criminal contraband in the plain view of the officers, and then invited six armed officers into the apartment – all the while spontaneously volunteering incriminating statements and substantial quantities of narcotics to the officers. The court did not find this account to be credible at the May Hearing, and the testimony presented at the Supplemental Hearing has not changed the court’s view.
Lawyers: Guy Oksenhendler, Jay H. Schwitzman (defendant); AUSA James Donald Gatta
It is no surprise to defense lawyers that racial profiling of jurors by prosecutors is alive and well.  (Not that defense lawyers are saints on this issue, though they are more likely to do it affirmatively, see here.)  In a welcome judicial recognition of the problem, the Second Circuit has ruled in Dolphy v. Mantello, 03-2738-pr(L), 2009 WL 50496 (2d Cir. January 9, 2009), that a prosecutor’s justification for striking the only African-American juror of a jury panel – that she was obese, and obese people favor defendants – was so self-evidently pre-textual, it demanded further inquiry.  (Disclaimer: Mr. Dolphy was represented by Robert Culp, who is of counsel to Murray Law LLC.  Mr. Culp was acting in his individual capacity in this case.)


In Dolphy’s state court trial, there was only one African-American juror in the jury pool, so you would have hoped the trial judge would scrutinize the prosecutor’s explanation for exercising a peremptory challenge against her very closely, especially since Dolphy himself is African-American.  But instead, the court accepted without inquiry the prosecutor’s claimed “race-neutral” explanation in response to the defendant’s Batson challenge:  that he struck her because of her overweight appearance, adding “heavy-set people tend to be very sympathetic toward any defendant.”  When defense counsel pointed out that two of the seated white jurors were also overweight, the trial judge joked that he and both advocates could lose a few pounds, but “that the excluded juror (by contrast) was grossly overweight.”  It’s worth adding that the juror in question had impeccable credentials – she worked for a defense contractor, and was willing to serve despite a disabled husband and three children.  The state appellate division affirmed the trial court’s denial of the Batson challenge, and the court of appeals denied leave to appeal.  The defendant filed a federal habeas petition.  

NDNY Magistrate Judge DiBianco concluded in his Report and Recommendation that the trial court misapplied Batson when it accepted the prosecution’s explanation without assessing credibility or pretext.  District Judge Kahn, however, denied the petition, holding that the required credibility finding - which under Batson need not be explicit - was implicit in the trial judge’s rejection of the defendant’s Batson challenge.  


The Second Circuit, in a decision authored by Judge Jacobs, vacated the district court’s order, finding that “[w]e cannot say that the trial court properly applied Batson in this case.”  The Batson analysis has three steps: a showing of purposeful discrimination (for example, an apparent pattern of striking jurors of a particular race or sex), an opportunity to the striking party to provide race-neutral reasons for the strikes, and a determination by the judge as to whether there was discriminatory intent.  Here, the trial judge failed to satisfy Batson Step Three, both because his remarks indicated that he “seemed to assume that a race-neutral explanation (Batson step two) was decisive and sufficient” and because “the explanation given here lends itself to pretext.”  While facially race-neutral, the Court noted this explanation “rested precariously on an intuited correlation between body fact and sympathy for persons accused of crimes,” memorably adding “[w]hich side is favored by skinny jurors?”  The Court remanded for a hearing into the credibility of the prosecutor’s explanation, noting (and perhaps hinting) that given the passage of time, a hearing may be pointless, and Dolphy should be simply given a new trial.  (He has already served twelve of his fourteen to sixteen-year sentence.)


Dolphy is a note-worthy decision in the Second Circuit’s Batson jurisprudence.  Although decided on the seemingly narrow ground that the trial judge here did not even reach the third prong of the Batson analysis, Dolphy can be used as a precedent for the proposition that a suspect race-neutral explanation (whether because it is dubious on its face, or because it is called into question by other facts of record) demands more than simply a conclusory denial of the Batson challenge.  Second Circuit precedents hold that trial courts rejecting Batson challenges need not recite any particular formula.  But here, the Court concluded that the credibility of the prosecutor’s “race-neutral” explanation had never been properly assessed, and, importantly, included in its decision rhetorical remarks questioning the validity of the explanation provided.  One could argue, therefore, that under Dolphy, a questionable “race-neutral” reason must be subjected to closer scrutiny.

Lawyers: Robert A. Culp (defendant); Lisa Fleischmann (Asst. Attorney General for State of New York – not the trial prosecutor)
A set of facts that read like a treatment for a Sopranos script is the backdrop for a notable decision from the Second Circuit on the propriety of summation arguments made by both sides in a criminal trial.  Mistaken suspicions that a mobster was cooperating, a botched hit sending him into the bosom of the government, another botched hit on his one family member that did not go into Witsec . . .  In United States v. Spinelli, 99-1344-cr(L), 2008 WL 5413083 (2d Cir. December 31, 2008), the Court affirmed the defendant’s convictions for murder conspiracy and racketeering, despite the prosecutor’s improper personal vouching for the truthfulness of her witnesses.  The Court expressly rejected the government’s argument that a prosecutor may engage in personal vouching if the defense suggests the government’s witnesses had lied, and then goes on to embrace wholeheartedly the defense’s right to attack the credibility of cooperating witnesses.  

Improper Summation Arguments

During her rebuttal summation, the AUSA said to the jury that not one of the cooperating witnesses “had ever lied under oath or perjured themselves” or “falsely implicated anybody in a crime.”  The Court held it was improper for a government prosecutor to make such an assertion to the jury.  “By making these statements, the prosecutor put her own credibility at issue and implied the existence of extraneous proof which would support her assertion about the witnesses’ credibility.”  While she is entitled “to argue forcefully and vigorously to the jury in support of her witness’s credibility,” these arguments “must be based on evidence in the record . . . But the prosecutor is not entitled to tell the jurors that they may rely on her own assurances of the witness’s truthfulness.”

The Court rejected the government’s argument “that a prosecutor may vouch personally for the honesty of government witnesses when the defense has the effrontery to argue to the jury that government witnesses have lied.”  In a paragraph that is a terrific defense of the defense’s right to impeach and impugn cooperating witnesses, the Court held:   

It is not misconduct for a defense attorney to argue on the basis of inferences drawn from the evidence (or the witness's demeanor) that a witness for the government has lied. When an accomplice in a criminal venture makes a cooperation agreement with the government and testifies against his prior criminal confederate, there is no impropriety in the defense attorney arguing to the jury that the cooperating witness has falsely accused the defendant in order to get a better deal for himself. Such arguments are made in virtually every case in which an accomplice testifies for the government under a cooperation agreement.

In a footnote not joined by his colleagues, Judge Laval, who authored the decision, adds that rebuttal summations can be “dangerously emotional” moments for a prosecutor who “may understandably react emotionally” to a defense attorney’s attacks on the government witnesses, and thereby risk a mistrial.  He recommends that all prosecutors review their rebuttal arguments with an experienced prosecutor “who has not been involved in the trial and will therefore give unemotional counsel” (ouch! – and it’s unfortunate that the politically correct “she” is used in this footnote).  

In any event, the Court found the improper arguments were not prejudicial error where “the evidence of Spinelli’s guilt was powerful and well-corroborated.”

Hearing on Perjury Issue

In the same decision, the Court indicated that the district court should have held an evidentiary hearing on the defense’s motion for a new trial based on the claim that the government suborned perjury at trial.  The district court had denied the motion without a hearing based on the prosecutors’ sworn affidavits.  “Because the defendant had no opportunity to challenge the prosecutors' statements, we cannot affirm on the basis of that finding.”  The Court did, however, affirm on the grounds that even if the testimony had been perjurious, it was not material enough to have altered the verdict.

Lawyers: Ephraim Savitt (defendant); AUSA Jo Ann Navickas (who was not the trial AUSA)

Defense lawyers are no strangers to the concept of “testilying” or false testimony from law enforcement witnesses.  Especially common are those suspiciously opportune observations that render a search or seizure constitutional, like in “dropsy” cases, where the officers claim the defendant conveniently dropped his contraband in plain view as they approached or followed him.  But when it comes to he said/he said in criminal cases, the balance usually tips in the government’s favor.  As Judge Irving Younger observed in People v. McMurty:

The judge has no reason to disbelieve [“dropsy testimony”] in any particular case, and of course the judge must decide each case on its own evidence, without regard to the testimony in other cases. Surely, though, not in Every case was the defendant unlucky enough to drop his narcotics at the feet of a policeman. It follows that at least in some of these cases the police are lying.  (314 N.Y.S.2d 194, 196 (N.Y.Co. Crim.Ct. 1970))

But which ones?  In McMurty, Judge Younger advocates scrutinizing police testimony in dropsy cases with “especial caution,” rejecting it if it seems “inherently unreal,” and suppressing the evidence if there is the “slightest independent contradiction of the policeman’s testimony or corroboration of the defendant’s testimony.”  

In United States v. Matos, 07 cr 870 (E.D.N.Y. September 23, 2008) (Matos I), Judge Garaufis confronted a dropsy case that came under the “inherently unreal” category, and finding the testimony of the government’s witnesses “incredible,” “unfathomable,” and “absurd,” suppressed all evidence seized as a result of a warrantless arrest.  Later, in United States v. Matos, 2008 WL 5169112 (E.D.N.Y. December 8, 2008) (Matos II), he granted the government’s motion to reopen the hearing to present the testimony of six additional marshals, as well as additional testimony from the two witnesses he had already found incredible, but warned that “the court is not inclined to disrupt its well-founded determination that ‘[e]ach step of the officers’ story defies credibility.’”  The decisions are important, both as a rare acknowledgement by a federal judge that an officer’s badge is no guarantee of truth, and because of its discussion of the standard that applies to a motion to reopen.

Matos I

In Matos I, the defendant moved to suppress all evidence seized as a result of his warrantless arrest outside an apartment building, where police officers and marshals were conducting a stakeout for his cousin, a suspected murderer.  The key issue in determining whether probable cause existed to arrest him turned on “a single disputed fact: the officers’ allegation that, before Matos was detained, he threw [] two Ziploc bags of cocaine to the ground in plain view of the officers outside his apartment.”  Matos denied he threw anything, and claimed he had been “surrounded by officers with guns blazing when he exited the apartment.”  (The officers also claimed that Matos then invited them into his apartment, whereupon he volunteered that he had a large quantity of drugs stashed in a cabinet.  They conceded that they did not give him his Miranda warnings until between one to two hours after his arrest.)  

Judge Garaufis concluded that “the officers’ chronicle of events [was] a complete fabrication.”  Each step of their story “defie[d] credibility.”  Ostensibly seeking a fugitive, “[i]t strain[ed] credibility to believe that these officers would see Matos leave that apartment and ‘calmly walk[] towards him’ to ‘interview him.’”  They “offered no rationale to explain why they would abandon their cover so casually, and so jeopardize their whole operation and their own safety when possibly approaching a dangerous felon on the street.”  The court was especially skeptical of their reaction to the alleged moment when Matos reached for his waistband for the Ziploc bags.  “[T]he officers’ mutual insistence that they witnessed this motion but neither drew a weapon or even screamed at him is too absurd to be credible.  Police officers routinely profess that reaching into a waistband is a threatening move in circumstances where criminal activity is suspected, because ‘[w]eapons frequently are carried or hidden in the waistbands.’”  Matos’ testimony, on the other hand, was “a far more sincere and plausible account of these events” and “more consistent with the logical reaction of police officers anticipating a face-to-face encounter with a dangerous fugitive.”  

Since the government had failed to present “reasonably trustworthy information” demonstrating probable cause for Matos’ arrest, the court concluded the arrest was unlawful, and all evidence seized must be suppressed.  Significantly, acknowledging the broader ramifications of this conclusion, Judge Garaufis also directed the parties to “address the question of whether the court should make a referral to the United States Attorney for possible prosecution respecting the [officers’] false testimony” at the suppression hearing.  

One cannot help but hear echoes of Judge Younger’s call – almost 40 years ago – to prosecutors to recognize and address the widespread problem of “dropsy testimony,” which happens to be the basis of hundreds if not thousands of seizures each year after the Supreme Court’s seminal decision in Mapp v. Ohio.  Noting the spike in dropsy testimony post-Mapp, Judge Younger concludes in McMurty: “Beyond any doubt, then, the problem exists. Its solution, I suppose, is prosecutors’ work. The courts can only deplore. They are ill equipped to persuade the police to change their practices or alter their philosophy.”

Matos II

In Matos II, the government – clearly concluding that what was needed here was not prosecution of the testifying officers but corroboration – moved to reopen the hearing, so that it could present the testimony of six additional marshals, as well as more testimony from the two witnesses the court had already found incredible.  The government claimed the new testimony – which it had previously viewed as “cumulative” – would corroborate the testimony presented at the suppression hearing, bolster the credibility of the testifying officers, and “provide context for the actions of the Fugitive Task Force” team on that date.

Granting the motion, Judge Garaufis was guided by the Second Circuit’s decision in the infamous case of United States v. Bayless, 201 F.3d 116 (2d Cir.2000), which held that SDNY Judge Baer did not abuse his discretion when he reopened a suppression hearing and reversed his prior grant of the suppression motion, amid a firestorm of criticism in the media.  As in Bayless, the government was seeking in Matos II to reopen a hearing “in order to offer the testimony of additional police officers on the scene, following a judicial determination that the original officer’s testimony was not credible,” and provided the same justification – that it had not presented this testimony earlier because it mistakenly believed it would be cumulative.  Judge Garaufis concludes: “The suppression of evidence is a potent remedy for unconstitutional acts by law enforcement.  In this case, the court determined not only that the officers acted unconstitutionally, but also that their testimony was not credible and possibly perjurious.  If additional information is available to challenge the accuracy of those serious conclusions, the court is obliged to grant an opportunity for that information to be heard.”

Judge Garaufis added that in Bayless, the Second Circuit did not actually decide the question of what legal standard applies to a motion to reopen a suppression hearing, and he expressly declined to adopt the more stringent standard adopted in several southern district cases that only permit a suppression hearing to be reopened on the basis of new evidence if it “was unknown to the party, and could not through due diligence reasonably have been discovered by the party, at the time of the original hearing.”  Nonetheless, Judge Garaufis warned the government that it has an uphill battle to persuade him “to disrupt [his] well-founded determination that ‘[e]ach step of the officers’ story defies credibility’” and that even after reopening, “the court may not find it necessary to reconsider its conclusions.”  

Stay tuned to see if this second bite only digs the government in deeper.  One hopes that all eight witnesses proffered at the reopened hearing have consulted with individual counsel.

Lawyers: Guy Oksenhendler, Jay H. Schwitzman (defendant); AUSA James Donald Gatta

The Mitselmakher brothers, acquitted of extortion after trial, may not have won their motion for attorneys fees under the Hyde Amendment, but a published decision criticizing the “poor judgment” and “myopia” of the government’s prosecution of them must have been sweet compensation.  The Hyde Amendment permits an award of attorney’s fees and other litigation expenses to a prevailing defendant in a federal criminal case who retained counsel, when the court finds that the position of the United States was “vexatious, frivolous, or in bad faith.”  In United States v. Mitselmakher, 07 cr 37 (BMC), 2008 WL 5068609 (EDNY November 20, 2008), Judge Cogan sums of the issue and his holding neatly in his first paragraphs:

The Government made two crucial mistakes in bringing this case. First, it credited a story by a complainant who stood to gain exoneration from a $50,000 gambling debt if the Government bought his story of extortion. The complainant had no skin in the game; he was going to get out of his debt whether the jury accepted his testimony or not, and the Government did not appreciate how transparent the complainant's motivation would appear to the jury. Second, having bought the story, the Government performed a cursory investigation of the complainant's background despite indicators that there was more to look at. When defense counsel obtained publicly available records, they destroyed the credibility of the complainant at trial. He incredibly insisted at trial that prior lies he told under oath were in fact the truth, and even worse, the Government took the view, and still takes the view on this motion, that it was the truth. The result of these errors was a rapid acquittal.

Notwithstanding the inadequacies of the investigation and prosecution, I cannot find entitlement to recovery under the Hyde Amendment. The Hyde Amendment does not sanction poor judgment or myopia. It requires the prosecution of a defendant that is “vexatious, frivolous, or in bad faith.”  I do not see that on these facts, and accordingly, deny the motion.

Congrats to defense counsel, Andrew Frisch and Susan Kellman!

Can a probation officer seek a warrant to search the home and locker of a supervisee who is not subject to warrantless searches under the terms of his supervised release?  Alternatively, may a probation officer seek an order under the All Writs Act permitting such a search?  If a court signs an order permitting the search without making a probable cause determination, may the probation officer nonetheless rely on the “good faith” exception to the warrant requirement? 

Answering all of these “difficult questions at the core of Fourth Amendment jurisprudence” in the negative (and suppressing all seized evidence) in United States v. Kone, 08 Cr. 557(SAS), 2008 WL 4866031 (S.D.N.Y. November 5, 2008), Judge Scheindlin has issued an important ruling that will curtail the use of probation officers as surrogates for law enforcement agents - whether commissioned or volunteers - in criminal investigations.


Kone moved to suppress evidence uncovered during court-ordered searches of his home and personal locker. At the time of the searches, he was serving a federal term of supervised release, but was not subject to any special condition or statute authorizing a warrantless search of his home.  Prior to each search, a probation officer obtained an “Order” from a federal district court judge authorizing the search.  Neither the orders nor the supporting affidavits stated that there was probable cause for the search.  The affidavits were based on “credible information” received from a Secret Service agent and a cooperating witness, and outlined the details of a joint FBI and Secret Service investigation into a fraudulent check cashing scheme. Various incriminating items were seized during the searches. 


First, the court held (and the government conceded), that the probation officer needed to obtain a warrant in order to search Kone’s home.  Second, the “orders” obtained here were not warrants, not so much because they weren’t called warrants, but because they did not contain the words “probable cause,” and there was no basis to conclude that they  “necessarily issued upon a judicial finding of probable cause.”  In fact, the district judges signing the orders may have reasonably assumed that what was sought here was something less than a Fourth Amendment warrant (for example, they “may have presumed that the Order was requested pursuant to . . . a special search condition [of supervised release], which required no finding of probable cause”).  As such, “the search of Kone’s home was a warrantless search – presumptively unreasonable.”  Finally, the probation officers could not rely on the good faith exception to the warrant requirement.  “The Constitution states that no warrant may issue but upon probable cause; thus, under clearly established law, no reasonable officer could believe that an Order that could issue without a judicial finding of probable cause was equivalent to a warrant.”


The sanction imposed here - suppression of all evidence seized from Kone’s home and locker - is rebuke enough to the government.  But while the decision never uses the word “misconduct,” it is a clear rejection of the troubling events here - whether the probation officer was engaging in some unauthorized extra-curricular law enforcement, or was being used by an investigating agency to circumvent the warrant requirement.   Judge Scheindlin’s damning conclusion is clear: “if the probation officers believed that the circumstances called for a search warrant, they should have referred the matter to a law enforcement officer, or an attorney for the Government, to request the warrant, as required by [Fed.R.Crim.P.] 41,” rather than coming up with this “experimental practice” seeking “a novel type of writ . . . governed by no law.”  And by implication, if the agency in question believed that the circumstances called for a search warrant, it should similarly have sought a warrant using time-honored procedures, and not used the target’s probation officer as its surrogate.

Lawyers: Mark Gombiner, Esq. (Federal Defenders of New York, Inc.); AUSA Edward Kim

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