DECISIONS OF THE WEEK ENDED APRIL 17, 2020

| Apr 17, 2020 | Ed Sapone’s Decisions of the Week

What CA2 lacked in volume this week, it made up for in quality, issuing three significant decisions, two of which—Nolan and Bramer—resulted in reversals for defendants.

New York’s appellate courts were quiet, issuing only a handful of decisions in criminal cases, none of which were other than routine affirmances.

Second Circuit

On Wednesday, in United States v. Nolan, CA2 reversed SDNY Judge George B. Daniels’ denial of defendant’s § 2255 motion. Defendant had moved to vacate his convictions based on ineffective assistance of counsel because his lawyers did almost nothing to challenge the eyewitness identification testimony that formed the core of the government’s case, even though the identifications bore glaring indicia of unreliability.

An SDNY jury, relying almost entirely on eyewitness identifications, convicted defendant of conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and brandishing a firearm during and in relation to a crime of violence. Defendant was found to have joined in an armed robbery of an apartment occupied by a family, some of whose members had been dealing drugs. Four of the five adults present in the apartment at the time of the robbery, all testifying pursuant to grants of immunity, identified defendant as one of the robbers. Defendant was sentenced to 120 months’ imprisonment followed by three years of supervised release.

There was evidence that all four identifications were unreliable. The robbers were disguised. They carried guns, upon which the witnesses were likely focused. The witnesses were initially unable to give investigators detailed description of the robbers beyond noting that they were light-skinned or Hispanic. The four victims did not identify defendant, who is white, as one of the robbers until they saw his photo in an array shown to them more than a month after the crime. Even then, at least one of the victims did not firmly identify defendant until law enforcement allowed that victim to view photos of defendant on Facebook. That victim discussed with two other witnesses her identification of defendant and showed the other two witnesses his Facebook photo before these victims were asked to identify defendant from a photo array. The government heavily relied on the identifications to establish its case.

Yet, defense counsel did “virtually nothing” to challenge the admissibility of these identifications. In particular, defense counsel abandoned a pre-trial motion to preclude the eyewitness identifications for reasons that counsel would not explain. And, both then and after the testimony had been introduced at trial, defense counsel failed to call or even consult an expert witness who could have informed the judge and jury about the multiple, well-established ways in which these identifications were unreliable.

CA2 was most troubled by the abandonment of the pretrial motions to exclude the suggestive identifications, stating that it “could not understand” how defense counsel could have concluded that it was better to impeach the eyewitnesses at trial than challenge the admissibility of the identifications. Even if defense counsel lost the motion, the witnesses could still have been impeached. CA2 also found that the failure to call or even consult an identification expert was unreasonable.

CA2 also found Strickland prejudice, because it was “abundantly clear” that counsel’s actions prejudiced the outcome of the trial given the government’s reliance on the identification evidence.

CA2’s decision can be found here.

On Thursday, in United States v. Farekh, CA2 affirmed defendant’s convictions, following a jury trial before EDNY Judge Brian M. Cogan, of, among other things, conspiring to murder US nationals, conspiring to use a weapon of mass destruction, conspiring to bomb a US government facility, and providing material support to terrorists. CA2 rejected defendant’s claims that: (1) the district court abused its discretion when it denied defense counsel, who held the appropriate security clearance, access to motions filed by the Government ex parte pursuant to section 4 of the Classified Information Procedures Act (CIPA); (2) a custodial interrogation that took place overseas over a period of several weeks and involved the display of hundreds of photographs as part of a foreign country’s counterterrorism investigation was unduly suggestive, thereby rendering inadmissible an out-of-court photo identification of the defendant; and (3) the district court abused its discretion when it limited the cross-examination of a fingerprint examiner to preclude references to a fingerprint misidentification in a wholly unrelated case. The opinion was partially sealed for national security reasons.

Defendant is a US citizen who traveled to Pakistan in 2007 to join al-Qaeda. He became a leader in the terrorist organization and waged violent jihad against the US and its allies in the Middle East. As a member of al-Qaeda, defendant conspired to bomb a US military base in Afghanistan. In 2015, FBI agents arrested him in Pakistan and brought him to the US to be prosecuted.

Defendant argued that the district court’s ex partein camera review and adjudication of the Government’s filings made pursuant to § 4 of CIPA constituted reversible error. Defendant argued that the district court was required to provide him with access to the government’s filings because his counsel had the requisite security clearance. Defendant argued that CA2 had sanctioned ex parte proceedings in CIPA cases only where defense counsel did not possess the requisite security clearance, and asked CA2 to hold that, where defense counsel has an appropriate security clearance, the district court may not adjudicate the CIPA motions ex parte and must give defense counsel access to the classified information.

CA2 declined to adopt such a bright-line rule. It found that nothing in the text of § 4 limits the district court’s authority to review classified information ex parte only where defense counsel lacks a security clearance. Here, the district court met ex parte with defense counsel so that counsel could present defendant’s theory of the case and his potential defenses. Following this meeting, the district court reviewed the classified information in the government’s CIPA materials to determine whether it was helpful or material to the defense and whether the government’s proposed summary substitutions were adequate to guarantee defendant a fair trial. CA2 found that the district court properly exercised its authority under CIPA when it reviewed and adjudicated the government’s CIPA motions ex parte and in camera.

CA2 also found that the identification procedures were not unduly suggestive. In a heavily redacted portion of the decision, CA2 found that the identification procedures employed by the foreign government during the witness’s interrogation were not unduly suggestive. The totality of the circumstances surrounding the identification of defendant’s photograph in the witness’s home country confirmed that the identification procedures were not employed to elicit a positive identification of defendant. The witness was shown approximately 300 photographs and was asked to identify the persons depicted in each photograph as part of the home country’s counterterrorism efforts. Out of the 300 photographs that were shown to the witness, only five—each of them different—depicted defendant.

Finally, CA2 rejected defendant’s claim that the district court erred when it precluded certain cross-examination of a government fingerprint examiner. Sibley, the examiner, testified that 18 latent prints recovered from adhesive tape used in a bombing matched defendant’s prints. The district court precluded counsel from cross-examining Sibley about evidence relating to an unrelated case, the Brandon Mayfield incident of May 2004, where FBI examiners examined one latent print in connection with a terrorist attack on the commuter trains in Madrid, Spain, and erroneously identified the fingerprint to be that of Mayfield, a U.S. citizen residing in Oregon.

Relying on its Rule 403 discretionary authority, the district court prevented counsel from cross-examining Sibley about the Mayfield incident on the basis that the potential for confusion and undue prejudice greatly exceeded whatever probative value the reference to Mayfield’s case might have. CA2 agreed. It held that the district court’s limitation on the cross-examination of Sibley was consistent with the understanding that a defendant may attack the subjectivity of fingerprint examinations as a category of evidence, but is not entitled without more to rely on a fingerprint examiner’s mistakes in a wholly unrelated case to undermine the testimony of a different examiner.

CA2 decision can be found here, and a related summary order here.

In United States v. Bramer, a case out of NDNY, CA2 reversed the judgment of conviction and the district court’s decision denying defendant’s Rule 29 motion for judgment of acquittal. CA2 agreed with defendant that there was insufficient evidence that he had been issued a protective order “after a hearing” in which he had “an opportunity to participate,” as required by 18 USC § 922(g)(8)(A), and that no rational trier of fact could find that when defendant submitted an application to purchase a firearm he violated § 922(a)(6) by knowingly lying about whether he was subject to such an order.

On October 13, 2016, defendant received a protective order issued by the Town of Malta Justice Court. On October 24, 2016, defendant attempted to purchase a firearm. He completed the required ATF Form 4473 that potential firearm buyers must submit. Question 11.h on the form asked whether defendant was “subject to a court order restraining [him] from harassing, stalking, or threatening [his] child or an intimate partner or child of such partner[.]” Defendant responded by checking the “No” box. Question 11.h referred the applicant to instructions which define a court order in language that is virtually identical to the statutory language defining a relevant order found in 18 USC § 922(g)(8), which prohibits possession of a firearm by a person subject to certain kinds of protective orders.

Based on defendant’s answer of “No” to Question 11.h, defendant was indicted and convicted for providing false information to a licensed dealer in connection with the attempted acquisition of a firearm—a violation of 18 USC § 922(a)(6).

CA2 found that defendant’s answer to question 11.h was false only if the government proved that the Justice Court order was issued after a hearing of which defendant received actual notice, and at which he had an opportunity to participate.” 18 USC § 922(g)(8)(A).

The protective order, issued under CPL § 530.12(1)(a) and signed by both defendant and the Justice Court judge, states that defendant was “advised in Court of issuance and contents of [the] Order[,]” and that the “Order [was] personally served” on defendant in court. The order also states that “it is a federal crime to . . . buy, possess or transfer a handgun, rifle, shotgun or other firearm or ammunition while this Order remains in effect.” The order issued to defendant was “a stay-away order of protection[,]” requiring that he stay away from the individual who had made the allegation against him, that he refrain from communicating with her, and that he refrain from engaging in an extensive list of criminal conduct directed at the protected person.

After his arrest, defendant stated that “he answered no to question 11.h because he did not read the fine print on the order of protection, that he had attempted to purchase the firearm for hunting, and that he had not bought the firearm to cause harm to the protected person.”

CA2 found that the evidence about the Malta Justice Court proceeding only showed that defendant attended the proceeding, that defendant was not prevented from speaking, and that the judge explained to defendant what the charges were against him and what an order of protection was. CA2 found that, in order to prove that defendant had an “opportunity to participate” under § 922(g)(8)(A), the government must present sufficient evidence for a jury to be able to conclude that a reasonable person in defendant’s position would have understood that he was permitted to interpose objections or make an argument as to why an order of protection should not be imposed. The record here was insufficient to prove defendant was afforded that opportunity, particularly because defendant was not represented by counsel.

CA2’s decision can be found here.

On Wednesday, in United States v. Jones, in a summary order, CA2 affirmed defendant’s conviction, before SDNY Judge Richard J. Sullivan, for violating the terms of his supervised release by committing a narcotics offense and traveling to Pennsylvania without permission. CA2 rejected defendant’s claim that the Fourth Amendment’s exclusionary rule applies in supervised release revocation hearings and barred admission of the drugs in the car he was driving.

CA2 found that defendant’s contention was barred by its recent decision in United States v. Hightower, 950 F.3d 33 (2d Cir. 2020), which held that the exclusionary rule does not apply in federal proceedings to revoke supervised release.

CA2’s decision can be found here.

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