New York Federal Criminal Practice Blog

Recently in the Miscellaneous category:


The NYSACDL has published the second edition of its excellent revitalized Atticus.  It's well worth checking out - Donna Newman gives a fascinating fly-on-the-wall account of the Russian spy case, and Donald Thompson has a moving essay on a wrongful conviction.  I have also contributed a piece highlighting some recent Second Circuit cases, including three cases not previously mentioned in this blog:  United States v. Julius (suppression); United States v. Sabhnani (liability for omissions, and also interesting on the issue of venue transfer and psychological evaluations of government witnesses); and United States v. Oluwanisola (proffer statements). 
Reconciling the protection of fundamental democratic liberties with the necessity of combating terrorism is a relatively new challenge to the United States.  Not so to many democratic countries that have had long struggles against terrorism.  Countries like Ireland, Britain and Israel have faced the powerful temptation – and in some cases, imperative - to compromise the rule of law and civil liberties when confronting terrorism.
As U.S. courts and criminal justice agencies grapple with the threat of domestic terrorism, this is an especially appropriate time for a dialogue on the delicate and symbiotic balance between fighting terrorism and protecting constitutional liberties.  The Irish, with their experience in addressing terrorism within the framework of a constitutional democracy, have much to add to this debate.  

This program, presented by the Irish American Bar Association of New York, in association with Fordham Law School, and organized by the undersigned and Janet Walsh, Esq., will focus on what the United States can learn from other countries’ legal responses to terrorism, with a particular emphasis on the Irish experience.  Join us for a fascinating discussion with academic experts who have studied this issue in depth, Benton Campbell, former Interim U.S. Attorney for the Eastern District of New York, who addresses these issues on a daily basis in actual investigations and prosecutions, and the Hon. Brian M. Cogan, who will moderate the discussion.  

When:   May 27, 2010, from 6:00 to 8:00 p.m. (reception to follow)
Where:  Fordham Law School, 140 West 62nd Street, Room 430
Panel:    Prof. Deborah Pearlstein (Princton University);
             Prof. Martin Flaherty (Fordham Law School);
             Prof. Arie Perliger (Stony Brook University/West Point);
             Aisling Reidy (Human Rights Watch; former director of the ICCL);
             Benton Campbell (former U.S. Attorney for the E.D.N.Y.)
Moderator:  Hon. Brian M. Cogan (U.S. District Judge, E.D.N.Y.)

This event is free and attendees earn two professional practice CLE credits

RSVP to or
As this blog has often pointed out (see here and here), the investigation and prosecution of lawyers for their lawyering is different.  Because these cases carry the potential to chill creative and zealous advocacy, they merit special precautions and scrutiny.  In fact, the ABA includes several recommendations in its "Standards on Prosecutorial Investigations" on how defense counsel should be prosecuted, including noting that "the prosecutor’s office should protect against the use of false allegations as a means of harassment or abuse that may impact the independence of the defense counsel or the Constitutionally protected right to counsel."  (Click here for the complete set of standards.).  That's not to say that lawyers should get a free pass with the claim that their conduct was mere advocacy (see here for Professor Gillers' tough comments on lawyers who hide behind their advocate status), but the line between ethical advocacy and criminal conduct can be a fine one and in the eye of the beholder.    

This fascinating issue will be the subject of a roundtable discussion at the Association of the Bar of the City of New York tomorrow evening from 6:30 to 8:30 p.m.  Conceived and organized by this blog author, on behalf of the Criminal Law and Professional Responsibility Committees, it features Gerald Shargel, Daniel Alonso, Barry Bohrer, AUSA Jon Kolodner and Professor Ellen Yaroshefsky.  It will be moderated by the Hon. Carol Bagley Amon of the Eastern District of New York.  For good measure, the program is free and offers two CLE credits in ethics.  There is still time to register (see here), but space is filling up fast!

Update [May 12, 2010]: The New York Law Journal has this report on the debate.

Judge Blockhead protects thug drug-lord from death penalty . . .  Magistrate releases admitted Ponzi-schemer to luxurious private jail . . . Judge disparages her sex in sidebar . . . Sensational headlines sell papers, but when the media attacks judges, it undermines the independence of one of the key branches of government.  What can judges do (if anything) to defend themselves from such attacks?  When should journalists and editors draw the line?  Is there some common ground in the intersection between the right to a free press and the need for an independent judiciary?  The Criminal Law Committee of the Association of the Bar of the City of New York has organized a roundtable discussion on this fascinating topic, featuring prominent federal judges, editors and journalists, and moderated by the Hon. Kimba Wood.  It is to be held at the Bar’s headquarters on West 44th Street on May 12 at 6:30 p.m., and the program is free.  Space is limited.

Guest contributor Brian Larkin, Esq., writes:

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.

Guest contributor Megan Logsdon, Esq., writes:

In two cases that pit privacy interests over the public’s right to know (including the right to know too much), In the Matter of the New York Times Company to Unseal Wiretap and Search Warrant Materials in United States v. Brener, Suwal and Lewis, 2009 WL 424383 (S.D.N.Y. February 19, 2009) (“Spitzer I”)and 2009 WL 724944 (S.D.N.Y. March 19, 2009) (“Spitzer II”), SDNY Judge Rakoff has issued important rulings on the public’s right to “keep a watchful eye on the workings of public agencies” through access to judicial documents. These cases involve the infamous (and curiously convenient) wiretaps of two cellphones and an email address associated with the Emperor’s Club, a prostitution and money-laundering ring whose most famous client was former New York governor Eliot Spitzer. The cases are an important milestone in the jurisprudence governing the public’s right of access to wiretap applications, and, in the process, scrutiny of politically motivated criminal prosecutions.


The initial wiretap applications, their supporting materials, and the authorization order were placed under seal by the issuing judges, as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That statute requires that the applications be sealed, and only “disclosed only upon a showing of good cause.” Of the 67 individuals mentioned in the application as customers of the ring, only one moved to intervene to oppose the motion. No doubt the other 66 partly wanted to keep a low profile, but they also relied on the government’s agreement with the Times that the government would redact the names and indentifying information of all individuals except Spitzer, who has already been identified publicly.


“[T]hree basic principles” governed Judge Rakoff’s decision: first, that the materials at issue are “judicial records;” second, that judicial documents are presumptively subject to public access, particularly where they relate directly to the exercise of a court’s judicial power; and third, that this presumption of access must be weighed against government’s law enforcement interests and the privacy interests of affected parties.

Here, these materials were clearly “judicial documents” because they are plainly “relevant to the performance of the judicial function . . . of approving or disapproving wiretap applications and their extensions.” As such, there was a presumption in favor of access. As to the third factor, there were no “sensitive law-enforcment techniques” at stake, the government had conceded that there was no more need for confidentiality in the already concluded investigation, and the privacy concerns of the individuals named had been rendered largely moot by the government’s redaction agreement with the Times or, in Spitzer’s case, by previous public disclosure. Judge Rakoff therefore ruled that the public interest in judicial records outweighed any opposing interests and granted the motion to unseal, noting, perhaps pointedly: “there is an obvious interest in obtaining information about the origins of an investigation that led, ultimately, to the resignation of the Governor of New York.”

Notably, in reaching his conclusion, Judge Rakoff rejected the government’s assertion that “good cause” meant anything other than a balancing test: “there is no reason to believe that Congress intended “good cause” to be anything other than a synonym for the balancing dictated by the aforementioned constitutional and common law principles.”

The government has appealed his decision . . .

Coda – He Who Snoozes Loses

One month after granting the New York Times’ motion to unseal the wiretap applications at issue in Spitzer 1, Judge Rakoff denied a motion by Spitzer’s attorneys to intervene in order to seek further redactions of wiretap materials in the case (Spitzer II).

Judge Rakoff denied the motion, pointing out first that because the case had been appealed, his court no longer had jurisdiction over most aspects of the case, including Spitzer’s motion. Judge Rakoff also concluded that, even if his court had retained control over the case, Spitzer’s motion would have been untimely because Spitzer had been aware all along that the government would not redact his name, and there was therefore no excuse for Spitzer’s delay in filing.

He notes “the Times, from the moment it filed its original motion, had made it clear that it sought the wiretap materials in order to obtain further information about the Emperor’s Club investigation as it pertained to Mr. Spitzer; and the Court’s Opinion and Order of February 19, 2009, in recognition of this fact, explicitly confirmed that Mr. Spitzer’s name would not be redacted.” In light of these facts, there was “no reasonable excuse for Spitzer’s delay” and any additional delay would “prejudice the Times’ desire to expedite the appeal so as to obtain disclosure of the materials as promptly as possible.”

My colleague Harlan Protass has resumed blogging on the excellent Second Circuit Sentencing Blog, as he announces here.  Be sure to check out his timely and knowledgeable posts.

See Archives for all posts since September 2007.