Category: Fifth Amendment
Circuit Rules Court Lacked Authority to Compel Compliance with Subpoena Issued by Expired Grand Jury
On June 3, 2020, the Circuit (Winter, Pooler, Sullivan) issued a noteworthy decision in In re: Grand Jury Proceeding regarding the authority of a district court to enforce a grand jury subpoena. Relying in part on a nearly 100-year-old decision and exposing a circuit split on an issue central to the enforcement of grand jury subpoenas, the decision reaffirms the importance of the grand jury as an independent investigative entity and serves as a reminder to defense counsel to diligently monitor the authority underlying government demands for documents and testimony in connection with an investigation.
In United States v. Brennan, the Second Circuit (Kearse, Winter, Pooler) rejected an as-applied challenge to 18 U.S.C. § 4241(d), which requires a defendant who has been found incompetent to stand trial to be committed to the custody of the Attorney General to determine whether he is likely to attain competency in the future. Section 4241(d), as discussed below, is a statute meant to guarantee a constitutional right to be free from unreasonable restraint. Brennan argued that his commitment violated his right to due process because a physician had already found that his mental illness was unlikely to improve. The Court rejected this argument, noting that determining the likelihood of a defendant’s future competency is a question for the District Court to decide after a period of reasonable commitment under the statute.
In United States v. O’Brien, the Second Circuit (Kearse, Livingston, Carney) affirmed the conviction of Michael O’Brien for importing and possessing with intent to distribute methylone and anabolic steroids. The Court held that (1) the District Court properly denied O’Brien’s suppression motion based on the fact that he was experiencing drug withdrawal symptoms at the time of his arrest, (2) the evidence at trial was sufficient to sustain O’Brien’s conviction, and (3) O’Brien failed to timely raise his defense that methylone was designated as a controlled substance through an unconstitutional delegation of Congressional legislative authority to the Attorney General and the DEA.
Last week, the Second Circuit (Cabranes, Pooler, Droney) issued a non-precedential summary order remanding a case to the district court for an evidentiary hearing on a motion to suppress. The case, United States of America v. Jacques Durand, 16-4206-cr, highlights the Court’s concerns over extending the routine booking exception to the Fifth Amendment.
Second Circuit Reverses Immigration Proceeding Based on Constitutional Violation, Criticizes Immigration Enforcement Based on Ethnic Generalizations As "Teeter[ing] On The Verge of The Ugly Abyss of Racism"
In the context of an appeal from a decision of the Board of Immigration appeals, Zuniga-Perez v. Sessions, the Second Circuit (Pooley, Wesley, Chin, C.JJ) ruled that a search conducted by law enforcement personnel violated the Fourth Amendment. The Court recognized that the petitioner “made a sufficient showing of an egregious constitutional violation” by law enforcement agents, and reversed the immigration judge’s decision to deny a suppression motion without a hearing. While this is not a criminal law decision, it raises some important criminal law issues, so we have decided to cover it.
Promises, Promises: Second Circuit Reverses District Court’s Ruling That Suppressed Post-Arrest Statements Based On Allegedly Coercive Promises By Law Enforcement
In United States v. Haak, 16-3876-cr, the Second Circuit (Raggi, Hall, Carney) reversed a suppression order, finding that local law enforcement authorities did not falsely promise the defendant immunity from prosecution and his statements therefore were not coerced in violation of the Fifth Amendment.
In United States v. Dove, 14-1150-cr, the Second Circuit (Walker, Pooler, Chin) upheld a drug conspiracy conviction against claims that the government improperly shifted its case away from the broader conspiracy charge in the indictment. The defendant alleged that this amounted to a constructive amendment or a prejudicial variance, in violation of the Fifth Amendment Grand Jury Clause. The 2-1 decision, with Judge Chin dissenting, raises thorny questions about the evidence necessary to prove a defendant’s awareness of his role in a larger conspiracy and the government’s ability to thwart a lack-of-awareness defense through its selection of evidence at trial. Although the Court affirmed, the extended discussion and the dissent may be useful to future litigants who wish to invoke these defenses.
In a short summary order issued on February 9, 2018, in the case of United States v. Muir, 17-150, the Second Circuit affirmed a sentence and reminded everyone that nothing about Apprendi, Booker and their progeny changes the rule that existed even prior to the Sentencing Reform Act: uncharged and acquitted conduct can be relied upon by the district court at sentencing. This is not a violation of either the Due Process Clause or the Double Jeopardy Clause of the Fifth Amendment, nor does it violate the Sixth Amendment’s guarantee of the right to trial by jury. So long as the court finds that the relevant facts are proved by a preponderance of the evidence and do not increase either the statutory minimum or maximum sentence, there is no violation of law.
The Second Circuit has denied the government’s request for rehearing en banc in United States v. Allen, et al. (16-cr-98).
On July 19, 2017, in United States v. Allen, et al. (16-cr-98) (Cabranes, Pooler, Lynch), the Second Circuit issued a decision reversing the convictions of defendants Anthony Allen and Anthony Conti for wire fraud and conspiracy to commit wire fraud and bank fraud. This was the first federal criminal appeal in connection with the London Interbank Offered Rated (“LIBOR”) prosecutions, which involved allegations that various individuals and banks manipulated the LIBOR. The LIBOR is a benchmark interest rate intended to reflect the available rates at which banks borrow money from other banks; the LIBOR is incorporated into the terms of financial transactions worldwide. We provided a brief summary of the opinion a few hours after the decision was rendered; here is our more detailed summary.
On July 19, 2017, in United States v. Allen, et al. (16-cr-98) (Cabranes, Pooler, Lynch), the Second Circuit issued a decision reversing the convictions of defendants Anthony Allen and Anthony Conti for wire fraud and conspiracy to commit wire fraud and bank fraud. This was the first federal criminal appeal in connection with the London Interbank Offered Rated (“LIBOR”) prosecutions, which involved allegations that various individuals and banks manipulated the LIBOR.
Second Circuit Rejects Novel Due Process Challenge to Rule Permitting Evidence of Prior Sexual Assaults
The Second Circuit joined its sister circuits and upheld the constitutionality Federal Rule of Evidence 413, which renders admissible propensity evidence about the defendant in sexual assault cases. In United States v. Schaffer, 15-2516-cr (Walker, Cabranes, Berman) the Circuit rejected as a matter of first impression the defendant’s argument that Rule 413 violates the Due Process Clause of the Fifth Amendment. The Court also reviewed its jurisprudence on “custodial” interrogation in the course of affirming the admissibility of incriminating statements the defendant made to law enforcement agents prior to his arrest.
In United States v. Lee, 14-548, the Second Circuit (Kearse, Cabranes, Chin) held that the value of stolen property is an element of a felony offense under 18 U.S.C. § 641 and that, therefore, a grand jury indictment charging the defendant for a felony offense under that statute should have alleged the value of the property. Nevertheless, the Second Circuit concluded that the failure to do so in this case was harmless error and affirmed the defendant’s conviction. This case—which seems to be straight out of the files of the newest prosecutor in the SDNY General Crimes Unit—considers some weighty legal issues in the context of a straightforward offense.
Hobbs Act Robbery a Categorical “Crime of Violence” and Predicate to Federal “Murder-by-Firearm” Statute
In United States v. Hill, 14-3872-cr (August 3, 2016) (Jacobs, Livingston, Droney), the Court affirmed Defendant’s conviction in the Eastern District of New York (Matsumoto, J.) pursuant to 18 U.S.C. § 924(j)(1) for a firearm-related murder committed in the course of a “crime of violence.”
Court Clarifies Limitations of Fifth Amendment “Foregone Conclusion” Doctrine in Tax Enforcement Action
In United States of America, 26 U.S.C. Sections 7402(b) and 7604(a): Enforcement of Internal Revenue Service Summons v. Greenfield, 15-543 (August 1, 2016) (Calabresi, Lynch, Lohier), the Court addressed the “foregone conclusion” exception to the Fifth Amendment privilege in the context of an action to enforce an IRS summons for various documents relating to an audit for tax evasion. The district court (Judge Hellerstein, SDNY) ordered the enforcement of the summons, and denied Greenfield’s motion to quash on Fifth Amendment self-incrimination grounds. The Court vacated the enforcement order and remanded for further proceedings.
In United States v. White, 15-229-cr (Cabranes, Droney, Meyer by designation), the Second Circuit ordered a remand for resentencing via summary order, instructing the lower court to consider the defendant’s post-sentencing rehabilitation. Although the order is not precedential, it represents an important reminder that practitioners can raise new factual arguments at resentencing based on changes in the defendant’s circumstances since the time of the initial sentencing proceedings.
Second Circuit Reaffirms The Right of A Corporation To Impose Consequences On Employees Who Do Not Cooperate With Internal Investigations
In Gilman v. Marsh & McLennan Cos., No. 15-0603-cv (Kearse, Winter, Jacobs), the Second Circuit held that a corporation can fire an employee for cause if the employee refuses to participate in an internal investigation of the company’s possible criminal wrongdoing. Masquerading as an employment dispute, the decision could have important consequences for how a corporation and its employees handle internal investigations when there is the potential for criminal prosecution.
Second Circuit Finds In Camera Sentencing Colloquy Conducted in Defendant’s Absence Violated Fifth Amendment Rights
In Morales v. United States, 15-243-cv (Pooler, Parker, Livingston), the Second Circuit granted habeas relief to petitioner Jorge Luis Morales on the grounds that it was ineffective assistance of counsel for his attorney not to raise a Fifth Amendment challenge to the lower court’s (Nevas, J.) decision to conduct in camera sentencing discussions outside of Morales’s presence. Although the Circuit chose to decide this matter via non-precedential summary order, this represents the rare case where ineffective assistance of appellate counsel excused a habeas petitioner’s procedural default.