As this blog has previously lamented (see here), the discovery rights of defendants in criminal cases, unlike in civil cases, are oddly in inverse proportion to the high stakes at issue.  Three new decisions address discrete issues relating to pre-trial disclosure in criminal cases.  Two provide little comfort to defendants, but one – dealing with the disclosure of classified information – sets out some important procedures to balance the defendant’s right to a fair trial against the need to protect national security. 

Aref – Standard for Disclosure of Classified Material

In United States v. Aref, 2008 WL 2598018 (2d Cir. July 2, 2008) (a money-laundering prosecution that arose out of a terrorist sting operation), the Second Circuit addressed an issue of first impression: the standard for determining what relevant classified information a criminal defendant is entitled to receive during discovery. 

In Aref, the government had moved under Fed.R.Crim.P. 16(d)(1) (which authorizes a district court to issue protective orders denying or restricting discovery for good cause) and Section 4 of the Classified Information Procedures Act (“CIPA”) (which sets out procedures for “[d]iscovery of classified information by defendants”) for a protective order permitting it to withhold certain classified information that would otherwise be discoverable. 

On the defendants' appeal, the Second Circuit held that while the government may invoke the common-law state-secrets privilege underlying Section 4 of CIPA, that “privilege can be overcome when the evidence at issue is material to the defense.”  In Aref, the Court adopted the following three-step analysis – reviewable under an abuse of discretion standard – for a district court to follow in determining when the government’s privilege must give way in a case where classified information is at issue:

First, is the classified information discoverable?

Second, if it is, does the state-secret privilege apply because (1) there is “a reasonable danger that compulsion of the evidence will expose ... matters which, in the interest of national security, should not be divulged,” and (2) the privilege is “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer”?

Third, if the information is both discoverable and privileged, then is it also “helpful or material to the defense,” i.e., not necessarily Brady material, but useful “to counter the government’s case or to bolster a defense”?

In Aref, conducting its own review of the classified information at issue and the government’s sealed submissions, the Court found no abuse of discretion and affirmed the district court’s findings.  Notably, in reaching its conclusions, the district court had held a series of ex parte conferences, not just with the government (as authorized under CIPA and approved by the Aref Court), but also with defense counsel “to assist the court in deciding what information would be helpful to the defense.”

Vilar – Early Production of 3500 Material Denied

United States v. Vilar, 05 Crim. 621, currently pending before Judge Sullivan in the Southern District, has already produced a very interesting search and seizure decision discussed here.  Now, in a new decision in this case, 2008 WL 2531195 (S.D.N.Y. June 22, 2008), the court has considered but rejected a creative motion from the defense requesting early disclosure of 18 U.S.C. § 3500 material (prior statements of government witnesses), so that the defense could determine whether evidence to be presented at trial is tainted by illegal seizure. 

First, the court reiterated, as it had pointed out in its earlier decision, that the defense had no right to litigate taint issues prior to trial.  Second, and more significantly, the court pointed out that it had no authority to compel early disclosure of Section 3500 material bearing on alleged violations of Fourth Amendment rights.  The language of Section 3500 itself only requires disclosure after the witness’s direct testimony, and the only carve-out of these mandates in Second Circuit case-law is for exculpatory or impeaching evidence under Brady, which concededly was not at issue here. 

The court concludes: “The Court expects the government to abide by its disclosure obligations under Brady as well as its pledge to produce Section 3500 material no later than two weeks prior to the trial in this action.”

Siraj – Early Disclosure of Statements Made to UC Officer Denied

Finally, in United States v. Siraj, 2008 WL 2669321 (2d Cir. July 9, 2008) (also a case involving a foiled terrorist plot), the Court addressed another issue of first impression: whether written police reports that memorialize non-interrogation oral statements made by a defendant to an undercover officer must be produced upon demand under Federal Rule of Criminal Procedure 16(a)(1)(B)(i) (which provides that upon a defendant’s request, the government must disclose to the defendant “any relevant written or recorded statement by the defendant”).  Answering in the negative, the Court reasoned that to hold otherwise would render other provisions of Rule 16 superfluous.  As the Second Circuit Blog points out, however, the defendant would at least have received these reports as last minute disclosures under 18 U.S.C. § 3500, and so could not claim unfair surprise.  Having them earlier, however, would certainly have helped the defense strategize for trial, and more importantly, may have encouraged more meaningful plea negotiations.

As an agent points out in United States v. Graziano, 07-cr-508 (JFB), 2008 WL 789886 (E.D.N.Y. March 20, 2008), computers can be repositories of one’s most private, even subconscious, thoughts.  Asked why he examined Internet history files when searching a defendant’s computer for gambling records, he explained they “help[ ] to give you what the user was thinking about . . . at this particular time.”  As a result, the agent uncovered and tagged an AOL search entitled “Arson RICO laws,” ostensibly for use in the gambling investigation, because RICO is “a federal statute that is used to prosecute illegal gambling offenses.”  In the end, however, it became key evidence in a parallel investigation that led to an indictment charging the defendant with arson of a competitor’s business.

The Computer Search

The defendant moved to suppress the search of the AOL search records as beyond the scope of the search warrant, which authorized a search for gambling records.  In denying the motion, the district judge reached two notable conclusions:

(a)     Overbreadth

First, the Court rejected the defendant’s challenge that the search warrant was overbroad because it failed to include a “search protocol,” delineating the particular computer files to be searched and the search terms that could be utilized.  Noting that “courts are ill-suited to micromanage in advance how the computer will be searched,” the court emphasized, however, that in seeking the warrant, “law enforcement must establish the basis for searching the computer and particularize the evidence being sought during such search.”

But computers can contain warehouse loads of documents, including the equivalent of boxes of photographs, personal e-mails and Internet search histories.  It is hard to see how any of this information could yield the specific documents sought in this search warrant: “records of bets, accounts and transactions, including betting slips, made in the course of illegal bookmaking activity.”  Thus, where is the prejudice from precluding law enforcement in advance from searching those files (and denying the agents an opportunity to turn the computer search into a general fishing expedition)? 
 
(b)        Reasonableness

The court also rejected the defendant’s argument that the manner of the search here was unreasonable, because the search involved a cursory review of every file, including Internet search files, and was not confined solely to obvious gambling files and documents.  Citing Supreme Court precedent that a brief review of apparently innocuous documents is permissible in searches for papers, the district court held that “it was entirely reasonable for the [forensic examiner] to engage in a cursory review of files and documents, by opening them, to determine whether they contained evidence of illegal gambling that was within the scope of the warrant.”

The court found that the bookmarking of the “arson RICO laws” search, once it had been uncovered, was reasonable given the agent’s credible testimony that he saved the evidence because gambling is prosecuted under the federal RICO statute (though, perhaps more plausibly, the evidence comes under the “plain view” exception to the warrant requirement).

The more critical issue is whether it was reasonable for the agent to search records containing Internet search histories at all (such files are listed with the designation “htm” or “html,” and are thus readily identifiable to the examiner in advance as Internet search history files).  The district court credited the agent’s “reasonable belief that evidence related to an illegal gambling operation might be contained in AOL search records.”  That may be true (searches for sports scores, etc.), but, as noted above, the search warrant here did not authorize a search for all documents related to an illegal gambling operation.  Rather, it specified particular gambling-related records that may be searched for and seized, documents that would not be contained in files with Internet search histories. 

The court does not address how Internet search records could reasonably be related to or produce the specific gambling records at issue.  (The case also does not address another interesting issue – raised by Judge Weinstein in United States v. Polizzi, 2008 WL 1886006 (E.D.N.Y. April 1, 2008) – that is, whether the searched files could have been independently obtained from AOL itself, as some courts have held that an Internet user can have no expectation of privacy in their Internet search histories).

Defendant’s Offer to Take a Polygraph

In the same decision, the court ruled on an issue of first impression in the Second Circuit - whether the defendant’s offer during an interview with the prosecutor to take a polygraph should be admitted at trial as consciousness of innocence.  Granting the government’s motion in limine to preclude the evidence, the found the offer had no probative value because it was not made in the context of an agreement that the results of the polygraph, whatever they were, would be admissible.  “Given the lack of adverse consequences from such an offer, there is no way to distinguish between the offer being made by an innocent defendant and the offer being made by a guilty defendant for purely strategic reasons.”

Advising Jury of Potential Penalties

Finally, in an interesting counterpoint to Judge Weinstein’s decision in Polizzi, the court ruled that the defendant could not cross-examine the cooperating witnesses as to the mandatory minimum sentences they had faced prior to their plea agreements, because “such reference would advise the jury as to the punishment the defendant is facing.”

There is a curious irony to Judge Weinstein's decision in United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008).  Although for many it is a quintessential example of liberal judicial activism, the decision is rooted squarely in conservatives' favorite theory, originalism, i.e. interpreting the constitution minus over two hundred years of history.  And, incidentally, it is hardly a philosophy that Judge Weinstein has been known to embrace.

Of course, the bigger irony in the decision is that we must reach back in history to more barbaric times to find compassionate practices that mitigate the barbarism of today's mandatory minimum sentences.  Holding, contrary to decades of precedent, that he had erred in failing to advise a jury of certain mandatory minimum sentences applicable in a child pornography possession case, Judge Weinstein points out that a jury in 1791 would most certainly have known the consequences of their decision (such jury, it should be noted, made up of white, male property owners), and would thus have been empowered to show mercy by manipulating its verdict.  Polizzi puts pay to the idea that any judicial philosophy is less malleable than another or more likely to restrain judicial law-making. 

Facts
 
At the heart of this decision is the tragic story of Peter Polizzi, an Italian immigrant who on the surface had achieved the American dream – successful businessman, father of five, self-taught guitarist.  Psychologically scarred, however, by childhood sexual abuse, he secretly repaired to a double-locked room above his garage over a five-year period, where he viewed and downloaded images of child pornography.   There was no evidence that he had ever forwarded the images to another, or engaged in any improper conduct with a child. 

A subscriber to a website targeted in an FBI investigation, Polizzi was arrested and prosecuted for possession and receipt of child pornography.  At trial, jury rejected his insanity defense and found him guilty on all counts.  He faced a mandatory minimum prison sentence of five years on the receiving counts. 

When informed after their verdict of the mandatory minimum sentence, three jurors indicated that they would have voted not guilty by reason of insanity had they known of the applicable mandatory minimum, and two other jurors indicated that they believed Polizzi should be treated not incarcerated. 

Failure to Advise Jury of Mandatory Minimums

Building on these jurors’ amended thoughts, Judge Weinstein crafts a compelling opinion that the defendant had a right to have his jury informed in advance of the mandatory sentence riding on their decision.  Reviewing legal and historical scholarship regarding criminal practices in the Thirteen Colonies, the court concludes that trial juries during that period would not only have known of the harsh sentences to be imposed on a finding of guilt, but also "would have been expected to deliver a verdict of not guilty or of guilty of a lesser crime had it believed the punishment excessive for the crime actually charged and proved."

Why should such practices apply today?  “With the advent of mandatory minimum sentences . . . federal juries today again face-albeit often unknowingly –‘either-or’ choices similar to those facing the British and colonial juries of 1791 [i.e. death/transportation/whipping or conviction of a lesser crime]. To fully exercise their historical function, juries today must understand the two eithers; they cannot rely on the court to mitigate because it is bound by the statutory minimum term of imprisonment.”  If juries are not just fact-finders, if they are truly the bulwark that curbs judicial, executive and legislative power - "the conscience of the community and guardian against government oppression ... [and] a 'safety valve' for exceptional cases" - then, Judge Weinstein reasons, juries must be entrusted with complete information regarding the consequences of their actions, including information about their power to dispense mercy through nullification.

Putting aside concerns that hearkening back to the days of the Eighteenth Century would not always be a giant step forward, or that knowledge of mandatory minimums may harden rather than melt jurors' hearts, the Polizzi holding is a persuasive and creative approach to mitigating the severity of mandatory minimum sentences. 

Few expect this decision to survive Second Circuit scrutiny. But Judge Weinstein has his eye on higher courts - the court of public opinion for one, and, of course, the Supreme Court, which given its current ideological make-up, may be more than a little receptive to his call for a return to 1791 and a limited reintroduction of the jury’s power to nullify.   The Supremes may also revisit the issue addressed at the beginning of the Polizzi decision: that the statute at issue is void for vagueness and overbreadth, because it has the potential to criminalize innocent behavior. 

Lack of Scienter

In a nutshell, the Polizzi court finds the statute problematic because it penalizes “knowing” possession and receipt of child pornography, but does not require on its face that the individual "intend" to possess such material. While equating knowledge with criminal intent may work with traditional crimes like possession of stolen goods or drugs, the court points out, this construct fails to account for the myriad ways in which one can inadvertently receive and possess materials via the Internet - "where email may be automatically received, files can instantaneously download themselves, web pages shown for only a fraction of a second are automatically stored, and knowledge can first be acquired after the fact of receipt.”  As one FBI agent put it, the court quotes, "[o]ne click, you're guilty."  In fact, the court claims (perhaps a bit hysterically), that one of its interns refused to conduct certain Internet research on the case for fear of committing a crime. 

It is this significant potential for the statute to penalize accidental and benign conduct that renders it void for vagueness and overbreadth - problems, the court concludes, that cannot be rescued by the stingy safe harbor provision in the statute, or suspect judicial efforts to imply an intent element.  Constrained by precedent to reject the challenge, Judge Weinstein clearly believes this is an area ripe for revisitation by the appellate courts.

Other Challenges

The Polizzi opinion also addresses a number of interesting challenges that, for one reason or another, were inappropriate in this particular case or are foreclosed by current precedent.  They may however prove more fruitful under a different set of facts or in the future as society's perception of these issues evolve:

• Eighth Amendment: Five years for "psychologically stunted man who . . . suffered vicious sexual abuse as a child" and who needs "treatment not a destructive long prison sentence," is undoubtedly cruel, the court concludes, but unfortunately, is not unusual, where "cruelty in punishment is adopted by Congress as policy."  Moreover, although some may find the punishment in Polizzi's case to be "shockingly disparate" - particularly in light of the passive nature of his crime, his psychological disabilities, his low risk of recidivism, and the public "scourging" or registration as a sex offender that awaits him after prison - it is not unconstitutionally "grossly disproportionate" to the crime committed under applicable case-law.  In this context, the court does an interesting analysis of the median sentences meted out by states for similar conduct (producing some very useful material for those seeking to challenge draconian sentencing guideline ranges in child pornography case), and also importantly queries the tendency to lump all sex offenders together when addressing their future dangerousness.  Such conclusions "fail to take into account differences between pederasts and voyeurs."

• Irrationality: Similarly, the five-year mandatory minimum for receipt of child pornography, while a severe penalty for Polizzi's crime, is not irrational, as that term is defined, despite the fact that the possession count does not carry any mandatory minimum.  Congress is not held to "a precise calculus of harm and risk."  Importantly, in this section, the court notes that the evidence regarding whether child pornography actually encourages viewers to commit physical sexual offenses (often presented as a given) is in fact inconclusive.

• Multiplicity:  Conflation of possession and receipt raises a problem of multiplicity (indictment improperly charges a single offense multiple times in separate counts, when only one crime has been committed).  The court did not need to address this issue since it was setting aside the verdict on the receiving counts. 

• Rule of Lenity: This doctrine of statutory construction requires a court to resolve any ambiguity in favor of a defendant.  Unfortunately, the mandatory minimum Polizzi was subject to is totally unambiguous, and does not (but surely should) "contain an implicit reasonableness limitation." 

• First Amendment: The court notes the tension created between First Amendment rights (such as the right to view adult pornography in privacy) and the expansive regulatory and enforcement efforts to curb exploitation of children, and cites several decisions that have struck down child pornography legislation as unconstitutionally overbroad.  One of these decisions, however, was recently overruled by the Supreme Court in United States v. Williams, 2008 WL 2078503 (May 19, 2008) ("pandering" provision of PROTECT Act neither overbroad nor vague).

• Fourth Amendment: The court highlights the tension between legal constructs of what is a "reasonable" expectation of privacy in the online context, and the actual expectations of online users.  In particular, he questions the validity of denying Fourth Amendment protections to non-substantive communications (such as email subject headings and Internet search queries) when the line between content and non-content may be impossible to draw, and thus lead to unduly invasive searches by law enforcement.

• Separation of Powers: The court notes the concern that statutory mandatory minimums have shifted too much power from the judiciary to the executive, but concludes that "on the basis of current precedent," applying the functional approach of analyzing statutes under the separation of powers doctrine, the mandatory minimum prescribed for receipt of child pornography passes muster.  The kicker here is "current precedent," which the court obviously believes needs revisiting. 

This huge decision (not just literally in length, but also in heart and compassion) is a must-read for anyone defending someone charged with possession of child pornography. 

It is not often that a court precludes the government from using a cache of firearms, including an assault rifle, and 16,000 rounds of ammunition in a drug trafficking case, but in United States v. Mason, 06 CR 80 (NRB) 2008 WL 281970 (January 25, 2008), the court did just that, while also lambasting the government for its "cavalier approach to its discovery obligations."

The case involves an alleged marijuana conspiracy in the Bronx.  The issue was the appropriate sanction for the government's failure to turn over certain evidence seized from a Florida residence, including an incriminating fingerprint analysis and various documents, such as cell phone and bank records.  At the eleventh hour, this evidence had assumed profound significance in the case, because on the eve of trial, the government had obtained a superceding indictment, expanding the charged conspiracy to encompass activities in Florida.  The withheld evidence was thus transformed from the status of potentially excludable Rule 404(b) evidence into direct evidence of a newly charged conspiracy.  Counsel for the defendants affected by the Florida evidence sought preclusion or a severance. 

Describing the government's unexplained failure to disclose as "striking," the judge noted that the fingerprint evidence sat in the government's file for eleven months, and that for over eight months, the government ignored a specific defense request for the Florida documents.  She also found that the delays prejudiced the defendants in several ways, in particular hindering the defendants' ability to develop a multiple conspiracy defense and depriving them of valuable time to meet that evidence at trial.  

What is stunning here is the remedy the court elected.  The court could have adjourned the trial date or severed out the defendants affected by the Florida evidence, but because the trial date had been set nine months earlier, the court ruled that the government was precluded from introducing any of the Florida evidence.  "The government's eleventh hour effort to change the evidentiary landscape of this case in a way that prejudicially impacts the defendants should not be remedied by a scheduling change which has a concomitant, adverse impact on the defendants, defense counsel, and the Court."

Notably, the preclusion covered not just the late-produced documents, but also "the highly incriminating materials" disclosed in a timely manner, including weapons, ammunition and drug paraphernalia.  "To allow the government to introduce this evidence when it selectively failed to produce the remainder of the seized documents would invite mischief in the discovery process."

The court, however, left open the possibility that the Florida evidence could be admitted under Rule 404(b).  That issue is the subject of pending litigation.  The hand that giveth . . .

There was a time when the execution of a search warrant at the company's headquarters would have sent the company's lawyers to the mattresses, but in a reflection of the current climate of deference - some may say submission - to government investigators in corporate America, counsel for Amerindo Investment Advisors, Inc. instead apparently advised the prosecutor in a phone conversation while the warrant was being executed that the company would "cooperate fully," and then reminded him that the government could obtain the same documents by means of a grand jury subpoena.  This prompted the prosecutor to serve a subpoena hours later that mirrored the documents listed in the warrant - a subpoena that later became the government's safety valve when portions of the warrant were found to be invalid. 

The issue in United States v. Vilar, 2008 WL 140958, 05 CR 621 (RJS) (S.D.N.Y 2008), was whether the inevitable discovery and independent source exceptions to the exclusionary rule permitted the government to offer at trial the documents that were illegally seized under the warrant but legally within the ambit of the subpoena.  

The Second Circuit has advised caution when the government tries to rely on a subpoena issued after or at the time of the illegal search to prove inevitable discovery.  The concern is that the subpoena is being used "as an after the fact insurance policy to validate an unlawful search under the inevitable discovery doctrine."  Of particular concern is whether any information from the unlawful search prompted the entire investigation or the particular subpoena requests.  Since neither scenario occurred here - the government had not reviewed one piece of paper prior to issuing the subpoena - the court held the government would have inevitably discovered most of the documents legitimately through the subpoena, with its more relaxed relevancy requirements.  For the same reasons, the court found that the subpoena was a "genuinely independent source" for the documents.

The court was at pains to demonstrate that while the company counsel's suggestion of a subpoena caused it to be issued, this suggestion was made in a spirit of cooperation, and not as a damage control measure in response to an overbroad search warrant.  Had the lawyer protested the legality of the warrant and only proposed the subpoena as a stopgap measure to give the company an opportunity to litigate the issues prior to seizure, the court’s implication is that the decision would have been different.  Indeed, in such a scenario, the subpoena would have been precisely what the Second Circuit cautions against: an after-the-fact insurance policy.  It should also be noted here that in resolving inconsistencies between the respective recollections of the prosecutor and lawyer, the court credited the prosecutor's version of events - which only underlines the golden rule of litigation: put important communications in writing.

The case isn't entirely without victory for the defense.  The court granted the defense request for early disclosure of the government's trial evidence to facilitate litigation of taint issues relating to documents illegally seized under the warrant that were not later validated by the subpoena.  Although rejecting the defense claim that a taint hearing must be held pre-trial as a matter of law (and also rejecting the government’s claim that the defense must meet a “pre-hearing burden” of establishing taint), the court ordered the government to turn over sixty days before the commencement of the trial all trial witness lists, exhibit lists and proposed 404(b) (prior bad act) evidence so that the defense could review them and file a motion to suppress tainted evidence. 

Although not a criminal case, Tabbaa v. Chertoff, 2007 WL 4150299 (2d Cir. November 26, 2007), decided yesterday, contains an interesting analysis (and very expansive definition) of what constitutes a "routine" search at the border.  The plaintiffs - five U.S. Citizens and practicing Muslims with no criminal records and of whom the government had no individualized suspicion - were subjected to the "kind of screening procedure normally reserved for suspected terrorists," following their return from an Islamic conference in Toronto. 

They challenged their searches and detention as violative of various laws, including the Fourth Amendment. Noting that "a suspicionless search at the border is permissible under the Fourth Amendment so long as it is considered 'routine,'" the Court went on to analyze three aspects of the searches at issue to determine if they stepped over the line.

First, the Court held that the intrusive questioning, photographing, fingerprinting and pat-down searches, even when accompanied by separation of Muslim conference attendees, were within the realm of what has been regularly held to be routine.  Although stigmatizing and inconvenient, these procedures both individually and cumulatively did not invade personal privacy in the way that a non-routine search - like a body-cavity search, strip search or involunatary x-ray - would.  Second, the Court rejected the claim that the search stopped being routine when border agents threatened to detain plaintiffs until they cooperated.  While not an issue the Court had previously decided, the Court held in Tabbaa that "border crossers cannot, by their own non-compliance, turn an otherwise routine search into a non-routine one."  Notably here, there was no evidence that any of the plaintiffs had actually refused to comply.  The Court did not address whether a threat of detention in the absence of any defiance notched the search up beyond the routine.  Finally, the Court found that the duration of the plaintiffs' detention - from four to six hours - while "certainly inconvenient," did not by itself render the searches routine. 

The Court's analysis was meticulous on a legal level, but should not escape a more practical scrutiny.  Imagine yourself in the shoes of the plaintiffs: at the border of your own country, no prior criminal history, and then suddenly shepherded to a separate building, where you are subjected to intrusive questioning, threats, fingerprinting, including forcible fingerprinting, and pat-down searches, including forcible kicking open of feet and knocking some individuals on the ground, for a period of five hours - all because you had attended a religious and cultural conference with members of your ethnic group. This is precisely the kind of state-sponsored targeting of a particular class of people that ensured recruits for the IRA in Northern Ireland for decades.  In a world where fears of terrorism are increasingly used to justify all sorts of invasions of individual rights and privacy, who will reign in policing practices that are most likely a whopping waste of money and counterproductive to boot?