DECISIONS OF THE WEEK ENDED JANUARY 29, 2021

| Feb 8, 2021 | Ed Sapone’s Decisions of the Week

In a highly unusual set of circumstances, in United States v. Stillwell, et al., CA2 remanded for further inquiry defendants’ claims that the DOJ had withheld Brady material under grant of an ex parte protective order. Because that evidence remains sealed to the public, it is difficult to assess how material and exculpatory that evidence was in this case. CA2 warned, in a footnote, that district courts generally may wish to reconsider any similar protective orders that they may have issued.

There were no reversals this week in the New York State appellate courts.

Second Circuit

On Wednesday, in United States v. Diaz, CA2 affirmed the judgment of SDNY Judge Edgardo Ramos that revoked defendant’s supervised release and sentenced him to a 24-month prison term. CA2 rejected defendant’s contentions that the admission of certain identification evidence violated his right to due process and that the admission of several hearsay statements without a finding of good cause violated Fed. R. Crim. Pro. 32.1(b)(2)(C).

Complainant twice identified defendant as the person that had nearly killed him during a robbery in the Bronx. Complainant later became a reluctant witness, denying at the revocation hearing that he’d ever identified defendant. On appeal, defendant argued that the district court at the revocation hearing (1) improperly relied on complainant’s two out-of-court identifications; and (2) failed to make a finding of good cause before relying on hearsay statements that complainant and his girlfriend allegedly made to law enforcement during the investigation. CA2 rejected both claims.

In the aftermath of the Bronx robbery during which complainant was repeatedly stabbed, complainant told the police, among other things, that his attacker had an M-shaped tattoo on his neck. The next morning, while complainant’s girlfriend was with him at the hospital, the girlfriend texted to an investigating detective a screenshot of an Instagram page that she believed to belong to complainant’s attacker and told the detective that she believed the attacker was known as “Knightmare.” The detective pulled defendant’s mugshot because he appeared to match the Instagram page photo and had a large neck tattoo. The next day at the hospital, complainant told the detective that his attacker went by the nickname “Knightmare,” and identified defendant’s photo as that man without hesitation. Although defendant was arrested by state authorities in the Bronx and charged with the robbery, the case was later dropped when complainant refused to cooperate. Thereafter, complainant again identified defendant’s photo from an array shown to him by a special agent but told the agent that he would lie on the stand if required to testify against defendant.

Defendant was on supervised release for having previously been convicted of being a felon in possession of a firearm. The U.S. Department of Probation filed a violation report based on the robbery allegation.

At the revocation hearing, complainant gave testimony that was inconsistent with his prior statements. He testified that he never mentioned an M-shaped neck tattoo or said he knew his attacker as “Knightmare”; that he saw a mugshot in the hospital but did not make an identification; and that he did not identify anyone in the six-person photo array as his attacker.  The detective and special agent were permitted to recount their conversations with complainant, including the two positive identifications of defendant. This testimony was offered for its truth and not just for impeachment.

CA2 found that, although the identification procedures were unduly and unnecessarily suggestive, they were admissible nonetheless because they were reliable. Three of the five Neil v. Biggers factors strongly supported the identifications’ reliability. Complainant had an opportunity to view his attacker clearly: the attacker was unmasked, the hallway where the robbery took place was well-lit, the two men spoke, and the attack lasted over a minute. Complainant’s degree of attention was likely high. Complainant had given a description that was likely accurate: in particular, complainant had described the M-shaped tattoo on the attacker’s neck. Even the remaining two Neil v. Biggers factors supported the identifications’ reliability: complainant’s identifications were confident, unequivocal, and unhesitating, and the show-up had taken place the day after the attack.

CA2 also found that the district court had not violated Rule 32.1 which requires the court to determine whether good cause exists to deny a defendant the opportunity to confront an adverse witness. CA2 found that, although Rule 32.1(b)(2)(C) guarantees the opportunity to “question any adverse witness unless the court determines that the interest of justice does not require the witness to appear,” the decisive point here was that complainant did appear. So the district court was not required to make a good cause finding under Rule 32.1(b)(2)(C) before considering complainant’s hearsay statements.

CA2’s decision can be found here.

In United States v. Stillwell, CA2 remanded to the district court the appeal of defendants’ SDNY murder-for-hire convictions. CA2 suggested that Judge Ronnie Abrams consider defendants’ claim that the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The convictions arose from charges that Stillwell, a former U.S. Army sniper and two others committed a murder for hire in the Philipines as part of what appeared to be defendant Stillwell’s murder-for-hire business conducted in multiple foreign countries.

At the time of the oral argument of defendants’ appeals, CA2 learned that, on the Narcotic and Dangerous Drug Section of the DOJ’s motion, the district court had entered a protective order barring prosecutors in the SDNY U.S. Attorney’s Office and defense lawyers from reviewing certain documents that are not identified in the CA2 decision. CA2 did not address the merits of the protective order other than to order to the AUSAs and defense counsel disclosure of the documents. CA2 also ordered supplemental briefing, in which the defendants argued that the failure to disclose the documents previously covered by the protective order had violated Brady.

CA2 found that it could not resolve the Brady claim, because there was no legal ruling to appeal. No Brady claim had been presented to the district court. Because, in the words of CA2, the 3-year time period to file a Rule 33(b)(1) motion in the district court was “rapidly drawing to a close,” CA2 remanded so that the claims could be presented to the district court. CA2 directed that, should defendants timely file such a motion, the district court should expeditiously determine whether any evidence favorable to the defendants was material, suppressed, or both.

CA2’s decision can be found here.

On Monday, in United States v. Schwarz, in a summary order, CA2 affirmed the EDNY judgment that found that defendant had violated the conditions of supervised release imposed as part of a prior sentence, and Judge Arthur D. Spatt’s imposition of a new term of imprisonment and a new period of supervised release to follow. But CA2 vacated the risk-notification condition, as it had done to an identically-worded one last week in United States v. Buissereth.

The standard risk-notification conditions were too vague and afforded too much discretion to the probation officer, because it allowed the officer to determine whether defendant posed a risk to another person. Because the condition was invalid, CA2 vacated and remanded for the district court to consider whether to impose a risk-notification condition and, if so, to clarify its scope such that it is consistent with Second Circuit law.

CA2’s decision can be found here.

On Tuesday, in United States v. Weiskopf, in a summary order, CA2 affirmed defendant’s WDNY child-pornography conviction, but vacated the condition of supervised release that forbid defendant from having any unsupervised contact with any child under the age of 18, including his own grandchildren.

The condition provided that defendant could not “have deliberate contact with any child under 18 years of age, excluding his biological or adopted children, unless approved by the probation officer or by the Court or unless supervised by an adult approved by the probation officer or by the Court.”

At sentencing, counsel asked whether this condition would include defendant’s two grandchildren. The court inquired with the probation officer present, who indicated that grandchildren are typically included within the condition. The court then approved the condition without significant inquiry.

CA2 found that the district court did not conduct an individualized assessment into the necessity of including grandchildren within the condition; nor was it obvious from the record why such a condition was reasonably necessary. Defendant was not alleged to have posed a danger to his grandchildren or to have engaged in, or attempted to engage in, any inappropriate physical contact with minors. Indeed, his sole prior offense, while serious, did not involve physical contact with any person. CA2 remanded for the district court to make an individualized assessment.

CA2’s decision can be found here.

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