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Jana C. Volante writes:

Recently, in United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012), the Ninth Circuit addressed a question left unaddressed by the Supreme Court and never previously tackled by the Ninth Circuit: are certificates of authentication and accompanying affidavits authenticating foreign public records and foreign business records testimonial? In other words, can foreign records be authenticated without in-person witness testimony, or would using certificates of authentication and affidavits to authenticate foreign records violate a defendant’s rights under the Confrontation Clause of the Sixth Amendment?

In the District Court, defendant Henry Anekwu was convicted of mail fraud, wire fraud, and telemarketing fraud against the elderly. The evidence showed that between 1998 and 2002, Anekwu owned and operated lottery companies in Canada, which targeted elderly victims in California. Anekwu directed the telemarketers working for his companies to call victims and to falsely represent to those victims that they had won lottery money. The victims were then obliged to pay certain taxes and costs to Anekwu and his companies in order to receive the non-existent lottery winnings, with the payments mailed to various commercial mailbox addresses in Vancouver, Canada. The defendant was extradited to the United States to stand trial, and the government sought to introduce foreign business and public records against him pursuant to 18 U.S.C. § 3505 and Federal Rules of Evidence 803 and 902. Among the alleged errors committed in his trial, Anekwu argued that the District Court committed plain error by admitting certificates of authentication for foreign public and business records by means of affidavit in violation of the Confrontation Clause.

The Ninth Circuit previously concluded in United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005) that routine certifications of domestic public records are not testimonial, but neither the Supreme Court nor the Ninth Circuit had previously addressed whether certifications of foreign public records are testimonial. If certifications of foreign public records are testimonial, then the custodians who created the certificates of authentication are witnesses subject to a defendant’s Sixth Amendment right of confrontation and admitting certificates of authentication without in-person witness testimony violates a defendant’s Constitutional right to confront witnesses against him.

The Supreme Court had previously held that, to rank as testimonial, a statement must have a primary purpose of establishing or proving past events potentially relevant to later criminal prosecution. Bullcoming v. New Mexico, 131 S.Ct. 2705, 2714 n.6 (2011) (discussed previously in this space). Furthermore, as the Court held in Bullcoming and in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (discussed previously in this space), a document created solely for an evidentiary purpose is testimonial. Building on this Supreme Court precedent, in Anekwu, the Ninth Circuit held that the certificates of authentication in question certify only that the documents are true copies and that the person so certifying is the custodian of the document. Because the certificates of authentication do not interpret the content of the related business and public records or certify their substance or effect, the appeals court held that the certificates do not create a record for the sole purpose of providing evidence against a defendant. Accordingly, since the purpose of the certificates was merely to authenticate the foreign public and business records, and not to establish or prove some fact at trial, the Ninth Circuit held that the admission of the certificates was not plain error.

As the marketplace becomes increasingly global, and cross-border criminal activity more prevalent, it is highly likely that more and more white-collar criminal schemes will generate the need for evidence from multiple countries, increasing the frequency of the government’s reliance on foreign certificates of authenticity, and heightening the importance of this Ninth Circuit ruling.
 

(Jana C. Volante, Esq., the author of this entry, is an associate with Fox Rothschild LLP, based in our Pittsburgh, PA office. Her practice concerns white collar criminal defense and commercial litigation)

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Alain Leibman writes:

As we have previously examined in this space, here, here and here , the Supreme Court’s Confrontation Clause jurisprudence has when considering the admission of a prior statement by a witness most recently focused on whether or not the statement was “testimonial.” The Court tells us that a statement is testimonial if made under circumstances supporting the objective belief that the statement was either created or recorded for use at trial, the classic example being answers offered in response to deliberate police interrogation.

The recent opinion in United States v. DeLeon, 678 F.3d 317 (4th Cir. 2012) exemplified a “non-testimonial” statement made out of court, the admission of which passed constitutional muster. DeLeon was convicted of killing his stepson near an Air Force Base in Japan, where the child’s mother was stationed. With no eyewitness to the murderous blow inflicted upon the child, the prosecution built a circumstantial case dependent on evidence of prior physical abuse of the victim by the defendant. Most damning was the trial testimony of a civilian Air Force social worker who met with the family after a school referred the child for possible abuse some five months before his death. The child described to the social worker a pattern of minor physical abuse by his stepfather, no single act of which was apparently sufficiently serious to take the child out of the home or to go to criminal authorities.

DeLeon objected on Confrontation Clause grounds to the social worker’s recitation in court of the victim’s earlier statements, which had been admitted under Fed. R. Evid. 803(4), as a statement related to medical diagnosis. On appeal, the Fourth Circuit upheld the admission of the child’s previous statements as non-testimonial and thus upheld the conviction. While the child’s statements were not made to the social worker to allow her to respond to an on-going emergency -- the paradigm criterion which would render a victim’s statements non-testimonial, as in the gunshot victim case of Michigan v. Bryant, 131 S. Ct. 1143 (2011) -- there were other circumstances supporting the conclusion that the child’s statements were not procured as trial testimony: the social worker did not have a prosecutorial responsibility; she did not record the interview for use as evidence; she did not advise the child that his answers would be reported to the authorities; and the primary purpose of the meeting was to formulate a treatment plan.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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Alain Leibman writes:

This author has on several occasions examined the interesting and unpredictable path traced by the Supreme Court’s recent Confrontation Clause jurisprudence, both in blog posts (here and here and here) and in longer form analyses. The Court's shift in position from one relegating the Confrontation Clause to a role secondary to that of the hearsay rules, to one assigning the constitutional provision a preeminent position in weighing the admissibility of many kinds of trial evidence has left lower courts struggling to analyze the correct evidentiary treatment in specific cases.

While noting in Crawford v. Washington, 541 U.S. 36 (2004), that most out-of-court statements, written or verbal, are subject under the Confrontation Clause to cross-examination at trial if they are "testimonial" in nature, the Court held that the constitutional right to cross-examination did not reach classic forms of "nontestimonial" evidence such as business records. Id. at 56. But what does it mean to be “testimonial” or "nontestimonial"? The Crawford Court described "testimonial" statements as including those made under circumstances supporting the objective belief that they were created or recorded for use at a later trial. Id. at 51-52. What to make, then, of a business record, such as a form kept in the files of a government agency and used to determine benefits eligibility, which serves multiple purposes?

The answer, according to United States v. Berry, 2012 WL 2098902 (9th Cir., June 12, 2012), is not entirely clear. The Berry case involved a conviction for social security benefits fraud; on the issue of Berry’s knowledge of the law, the trial court admitted into evidence benefits-application records of the Social Security Administration which purported to show that an agency employee had in an interview with Berry reviewed his legal obligations regarding the receipt and disbursement of benefits payments, although no form was signed by Berry himself. The forms were, according to one testifying agency witness, routinely completed as part of the benefits application process, not in anticipation of a trial. The interviewer-employee did not testify and apparently had been fired prior to trial for general incompetence. Berry's attorney objected to the admission of the government records, arguing that they were testimonial under the Confrontation Clause, and that he should have had the opportunity to cross-examine the interviewer-employee in order to establish that the forms were inaccurate and did not reflect information provided to the defendant.

The majority of the Ninth Circuit panel upheld the conviction and, specifically, the admission of the SSA exhibits as government records on the ground that they were "routine, administrative documents prepared by the SSA for each and every request for benefits." They were unsworn and "there was no anticipation that the documents would become part of a criminal proceeding," so they were nontestimonial.

The dissent argued that each of the records contained pre-printed statements acknowledging that any false statements to the SSA would be punishable as crimes and that the benefits applicant would be personally liable for repayment of improperly obtained or spent benefits. Acknowledging that some portion of the records may have had utility other than for the purpose of proof of fraud at a trial, the dissent maintained that "[i]t is hard to imagine what purpose including these statements in these documents could serve aside from establishing an applicant's knowledge of the law for a future showing of willful violation." Because the agency employee did not testify, Berry was left unable to cross-examine anyone about the veracity of the statements in the documents for which he was held responsible, and so their admission violated the Confrontation Clause.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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Alain Leibman writes:

This blog has previously explored (here and here) courts' increasingly entangled and inconsistent efforts to apply the Fourth Amendment and its hoary doctrinal analyses to the modern technology of computers, cell phones and other smart electronic devices.  Courts have struggled to determine  whether and how a search warrant authorizes agents to rummage through a computer's enormous amounts of private data in the manner of a search through a conventional file cabinet for easily-detected letters and contracts germane to the warrant.

Recently, Judge Richard Posner of the Seventh Circuit pondered similar connundra in United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012).  Incident to the defendant's arrest in a drug distribution case, agents had without a warrant searched his cell phone to collect its telephone number, so that they could later subpoena from his provider its call history; the expectation was that there would be a pattern of calls connecting Flores-Lopez to other conspirators' known telephone numbers.

There is no question that a conventional container of information, such as a diary, could be cursorily searched without a warrant at the time of arrest if on or near the defendant's person and if the search was limited in scope.  Quickly analogizing a cell phone to a diary, as some courts have done, would have obviated the need for an opinion of any length. 

What intrigued Judge Posner enough to write more were the features of the modern mini-computer that is a cell phone -- including the ability to use an application to obtain for the agent-holder a view of the owner's residence, if equipped with a linked camera.  Concluding that "[w]e are quite a distance [in this case] from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone," the court easily held that the superficial intrusion into the well of data on the phone was appropriately incident to the arrest.  However, the Seventh Circuit's exploration in this case of the distinctions between paper file and computer hard drive suggest that the court may align itself with those courts of appeal applying Fourth Amendment principles differently to each medium.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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Agents executing a search warrant at business premises will typically detain officers and employees found there, neither allowing them to leave nor to move freely about, until the conclusion of the search. Doing so serves several purposes, including facilitating the interviews of those persons; protecting the agents; and preserving the integrity of evidence awaiting collection at the scene. In drug and gun cases, holding everyone in place also keeps the soon-to-be defendant from fleeing before law enforcement can gather up the incriminating contraband and identify the correct person to arrest.

The Supreme Court held thirty years ago, in Michigan v. Summers, 452 U.S. 692 (1981), that such temporary, warrantless detentions were reasonable under the Fourth Amendment as incidental to the search, for all of the foregoing reasons. But what if the officers detain an individual at some distance from the location being searched after he has departed the scene? A recent Second Circuit case explored the outer limits of lawful incidental detentions.

In United States v. Bailey, 2011 WL 2623442 (2d Cir., July 6, 2011), detectives armed with a warrant and looking for a gun observed Bailey driving away from a residence they were about to search. Bailey was stopped about a mile, and five minutes, from the home, detained but not arrested, handcuffed, and driven back to the residence in a police car. A gun and drugs were the found in the building, and Bailey was arrested and charged.

There is, as noted by the Second Circuit, disagreement among other courts of appeal concerning the detention of an individual so far outside the searched premises. The Fifth, Sixth, and Seventh Circuits have upheld detentions incident to search where those persons were seen leaving the subject premises, and where the stops occurred at various distances from the search scene; the Eighth and Tenth Circuits, on the other hand, have refused to extend Summers quite so far. Interestingly, the courts of appeal who have upheld away-from-home detentions have cited the flight risk concern of law enforcement, or the “don’t let him get away in case we find anything” rationale. The dissenting courts have, logically, noted that an individual unaware that his apartment is about to be searched cannot knowingly be fleeing anything.

The Second Circuit joined the majority, endorsing the detention of outbound individuals because a brief detention is de minimis and the detention supposedly protects the safety of officers and advances the preservation of evidence. The rationale of the Bailey court does not, however, withstand the barest scrutiny -- stopping a vehicle one mile from the residence, handcuffing the occupant, and forcibly taking back to the scene where he might blurt out an incriminating statement (“Hey, that’s my closet!”) is hardly a de minimis stop; the security of the searching officers cannot be jeopardized by an undetained departing individual, only by a freely returning one; and evidence collection is, if anything, improved by the departure of the resident of the place being searched.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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In a new article published in the BNA Criminal Law Reporter, the author suggests that the Supreme Court's Confrontation Clause analysis may be reverting to an approach, seemingly abandoned several years ago, which closely aligns the Sixth Amendment's limitations on admissible evidence with the standards employed in traditional hearsay exceptions.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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We have written of the Supreme Court’s application of the newly-muscular Confrontation Clause to require the government in prosecutions involving lab reports to generally call the lab technician who conducted the tests whose results are being reported. As discussed here, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Court held that a laboratory report was testimonial and subject to the Confrontation Clause if it was created for use as evidence in a criminal trial, and, in that event, its admission required either a live witness to testify to its contents or the opportunity for the defense to have earlier cross-examined the witness who prepared the report but who was unavailable for trial.

Some lower courts have uncertainly wrestled with the Confrontation Clause analysis, as in a Fifth Circuit decision which clumsily analyzed the “testimonial” prong of the analysis, as discussed here.

In its latest consideration of the issue, the Supreme Court in a 5-4 decision on June 23, 2011 in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), held that if the report-writer was not available to testify, then the prosecution could not simply substitute some other employee of the same lab. In Bullcoming, a state DUI case, the prosecution offered another laboratory employee who had not conducted the questioned test on the driver’s blood sample, but who was familiar with the testing equipment and procedures. First, the lab report was held to be “testimonial.” Although it was not sworn and notarized, as was the drug-testing certificate held to be "testimonial" in Melendez-Diaz, the distinction was not meaningful; both lab certificates were formalized in a signed document and were created for trial. Second, the substitution of another lab employee was inadequate, since the cross-examiner was entitled to explore the testimony of the technician who tested the sample and who made, or chose not to offer, in the report observations about the sample and the test.

In a concurring opinion, Justice Sotomayor chose to emphasize prosecutorial approaches which may not have been foreclosed by Melendez-Diaz and Bullcoming. First, the concurrence noted that the Court was not presented with a case in which a lab supervisor, who had some overarching connection to the lab report if not personal involvement in its creation, had testified; that might present a “different case,” although the degree of involvement which the witness was required to have with the testing would have to be explored. Second, the testifying witness was not asked for his expert, independent opinion about the underlying test performed by another; under Fed. R. Evid. 703, which generally permits a testifying expert to rely on inadmissible hearsay, that too would present a “different question.” (In an earlier opinion, the Seventh Circuit in United States v. Turner, 591 F.3d 928 (7th Cir. 2010), had likewise identified Rule 703 as a possible way to circumvent the perceived need for live testimony from the testing official, see here.)  Third, this was not a case where only machine-produced results were introduced, since the Bullcoming lab report contained the missing technician’s statements about the results and the procedures employed; a different case would be presented if the prosecution had introduced raw testing data through an expert witness. In short, there remain several avenues for an enterprising prosecutor to overcome the unavailability of one particular lab employee, given a sufficient amount of time to plan and make necessary expert witness disclosures prior to trial.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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An earlier post considered the wide array of analyses employed by the courts of appeal in assessing under the Fourth Amendment the constitutionality of searches of computers and other electronic storage devices. (An article by the author, expanding substantially on the short-form blog entry, may be found at "Computer Search and Seizure Under the Fourth Amendment: The Dilemma of Applying Old-Age Principles to New-Age Technology," Criminal Law Reporter (March 2, 2011)). The differences among the courts turn on the degree to which they view the search of an electronic storage medium as like, or as unlike, a traditional search of a file drawer or other container of papers. A plurality of circuit courts have required law enforcement agents to proceed cautiously in searching through computers, cognizant both of the quantity of private data housed in a computer and the potentially corrosive effect on expectations of privacy when the “plain view” doctrine is used to justify a close review of data far afield from the original object of the search.

In a recent decision involving the search of a computer, a panel of the Sixth Circuit has taken its place in the cautious center of the judicial spectrum. The case of United States v. Lucas, 2011 WL 1775685 (6th Cir., May 11, 2011) involved an appeal of the denial of a motion to suppress child pornography found on a computer thumb drive; the appeals court focused largely on the extent to which Lucas’s consent to search his apartment for evidence of drug violations (he grew his own marijuana there) authorized a police officer to review the contents of the defendant’s laptop computer and associated storage media. Generally, the Sixth Circuit held in affirming denial of the motion, the breadth of a consented-to search is determined by an objectively reasonable standard -- what would a typical, reasonable person have understood he was consenting to? The seminal case is Florida v. Jimeno, 500 U.S. 248 (1991), in which the Court held that a police officer given consent to search a car for drug evidence enjoyed the owner’s consent to open a closed paper bag in the car, because it was understood that such containers might hold drugs. Id. at 251.

So, Lucas’s consent to a search for similar evidence effected a consent to search the entire apartment, including any closed containers; the laptop and its thumb drive were akin to a closed container, and their search was within the scope of the overall consent.

Nevertheless, the Lucas court showed that it -- unlike, say, the Fourth Circuit in United States v. Williams, 592 F.3d 511 (4th Cir.), cert. den., 131 S. Ct. 595 (2010) -- understood the difference between a file cabinet and a computer. The Lucas court warned that its affirmance “should not be read as a grant of broad authority to the police to open a suspect’s non-secured computer and examine at will all of the electronic files stored there.” In this case, the searching officer had conducted a limited search and, after finding a few images of child pornography, had concluded that search; a later-arriving computer search team then obtained Lucas’s second consent to continue and expand a computer search. A more intrusive and longer initial search could well have warranted suppression, notwithstanding the initial consent to search all closed containers in the apartment, because of the Fourth Amendment difference inherent in those special kinds of containers which store electronic data.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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A recent Sixth Circuit case exposed Enzyte, a widely-promoted male performance-enhancing product, as a fraud (see previous post here). The lead defendant and promoter maintained that government agents improperly acquired thousands of attorney-client communications when they imaged more than 90 computers during a search of his company’s offices, and argued that the government should be obliged to prove that its case was untainted by evidence derived from the privileged communications. Having previously suggested that a taint hearing was required when the government derived evidence from attorney-client communications, the Sixth Circuit -- finding itself alone among the courts of appeal in doing so -- reconsidered and reversed itself, holding that only evidence developed from the exploitation of constitutional privileges is subject to a full-blown Kastigar hearing and risks suppression under the fruit-of-the-poisonous tree analysis.

The district court in United States v. Warshak, et als., 2010 WL 5071766 (6th Cir., 12/14/2010) had held what it called a “Kastigar-like” hearing to examine the handling of the attorney-client emails seized by the government and its screening procedures for those materials. The district court found that the government had acted properly in seizing the emails and that its case was not tainted by privileged information, but on appeal the defendant argued that the lower court’s procedure was insufficiently searching under Kastigar v. United States, 406 U.S. 441 (1972). Under Kastigar, when the government compels immunized testimony in the grand jury over the witness’s Fifth Amendment privilege, and then prosecutes that witness, it bears the burden of not just negating the taint of that immunized evidence, but of affirmatively showing that its trial evidence was obtained from sources independent of that testimony. Four years earlier and in another case the Sixth Circuit had indeed suggested that Kastigar applied to the trial use of seized attorney-client privileged materials or their progeny.

The Warshak panel took a look around at the judicial landscape and noticed two things immediately. First, no other court of appeals had taken up the suggestion that Kastigar is implicated when the government improperly obtains attorney-client materials and generates leads or secondary evidence. Second, no court of appeals had ever held that suppression was an appropriate remedy for evidence derived from a violation of the attorney-client privilege, as fruit-of-the-poisonous tree, since that remedy was limited to violations of constitutional privileges. Under those circumstances, the court deemed it “unwise” to extend Kastigar or the suppression remedy to evidence derived from attorney-client privilege violations.
 

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Over the last ten years, television viewers have been inundated with commercials starring “Smiling Bob,” whose enthusiastic mien, we learn, stems from his happy experiences with Enzyte, a male performance-enhancing product. His wife adores him, his friends envy him, and his life is good. Unfortunately, the study claimed to support the benefits of the product was a sham; the “doctors” who developed it were fictional; and the customer satisfaction reports provided to viewers were wholly fabricated. And now, Steve Warshak, its promoter, and Harriet, his mother, who worked for him, are in jail, having been convicted of mail fraud, bank fraud, and money laundering, and several interesting legal issues were addressed in their appeal.

The prosecution underlying United States v. Warshak, et als., 2010 WL 5071766 (6th Cir., 12/14/2010) depended in significant measure on emails exchanged between Mr. Warshak and other employees, largely his family members, which demonstrated the fraudulent nature of the product and the means used to frustrate customers’ ability to secure refunds. Nearly 30,000 emails were obtained from Warshak’s internet service provider, Nuvox.

The Stored Communications Act (“SCA”), 18 U.S.C. § 2701 et seq., dictates the procedures to be employed by the government to obtain email content. Emails stored by the provider in the last 180 days may only be obtained through a warrant, § 2703(a), while older emails may be obtained by warrant, subpoena, or court order. § 2703(d). Also, under § 2703(f), the government may request a service provider to preserve all records in its possession pending issuance of process to compel their production; DOJ’s internal guidance makes clear that the preservation letter may not be used to prospectively request the maintenance of emails which have not yet been created by the client. Yet, in Mr. Warshak’s case, the government had requested Nuvox to prospectively save their client’s emails when they were created, emails which otherwise would have been deleted from the company’s server as they were downloaded and opened by the client. The government then used a subpoena to obtain the accumulated emails from Nuvox. Mr. Warshak claimed his Fourth Amendment rights were violated by this warrantless seizure of the content of his emails and that the government violated the SCA and DOJ guidelines.

The Sixth Circuit first considered the Fourth Amendment status of emails in the possession of a service provider. The court easily found that Mr. Warshak had a subjective expectation of privacy, and then turned to the thornier question whether that expectation was objectively reasonable. Tracing the expanding category of communication modalities which have been accorded Fourth Amendment protection, from the telephone calls in Katz v. United States, 389 U.S. 347 (1967) to private correspondence in United States v. Jacobsen, 466 U.S. 109 (1984), the court held that it would “defy common sense” to treat emails, which “play[] an indispensable part in the Information Age,” any differently. It did not matter under the Fourth Amendment that Nuvox had the ability to access its client’s emails, any more than it mattered that the telephone company in Katz could eavesdrop in on calls in 1967. While there could be a subscriber agreement which so broadly prescribed the provider’s announced intention to review its client’s email as to upset the client’s expectations of privacy, but the Nuvox agreement was not so broad. Therefore, the SCA is unconstitutional to the extent that it allows the government to obtain any emails from a service provider without a search warrant.

However, under the Leon good-faith doctrine, since the government agents in Warshak relied in good faith on the SCA provisions and since the statute was not obviously unconstitutional to them, the exclusionary remedy was inappropriate and the email evidence was not to be suppressed. As for the government’s improper use of a forward-looking SCA preservation letter, the court held that this statutory violation was irrelevant to the good-faith determination, since the critical inquiry was the actual obtaining of the evidence; the fact that the evidence would not have existed for later seizure but for the improper preservation request was of “no consequence.”

Future SCA subpoenas in the Sixth Circuit, though, would seem to constitute unlawful seizures, and practitioners in other Circuits may be able to use this opinion to argue both that SCA subpoenas are unlawful and that agents may no longer assert a good faith reliance on the SCA in light of Warshak.
 

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As noted previously on this blog here and here, the Supreme Court’s Confrontation Clause jurisprudence, culminating most recently in the Melendez-Diaz opinion in 2009, has both raised the bar substantially for the government in its efforts to introduce out-of-court statements and records and precipitated some confusion in the lower courts as they seek to apply those teachings to different fact patterns. Hearsay exceptions long believed to be co-terminous with the Confrontation Clause and safe harbors for prosecutors no longer assure admission of evidence. A recent Fifth Circuit case demonstrates just how unsettled are the expectations of prosecutors used to offering evidence in old ways which are no longer permissible under new constitutional constructs.

In United States v. Jackson, 625 F.3d 875 (5th Cir. 2010), a drug conspiracy prosecution, the government sought to implicate Jackson by introducing handwritten notebooks reflecting, in the hand of another, details of drug deals allegedly involving Jackson. These journals had been turned over by a co-conspirator, their author, during his proffer session with the government, but the co-conspirator did not testify at Jackson’s trial. The only witness called by the government was a law enforcement officer who attended the proffer session.  Presumably because it thought doing so would avoid a hearsay problem, the government used the officer to lay the foundation for the notebooks as business records of the drug operation, but had him disavow that any of his information came from a statement of the co--conspirator; rather, he claimed sole reliance on his experience in drug cases and his reading of the journals’ entries. The trial court admitted the ledgers over objection and allowed the officer to describe the entries and ascribe significance to them, and Jackson was convicted. The Court of Appeals held that admission of the notebooks was error.

As the Confrontation Clause issue was analyzed by the two-judge majority of the panel, their task was to first determine whether the ledgers were or were not “testimonial” in nature; if testimonial, then the Confrontation Clause was implicated and the only basis on which the ledgers could have been introduced was if Jackson had an opportunity to cross-examine a witness with knowledge of them, an opportunity denied Jackson. However, the majority defined “testimonial” solely by reference to the business records rule of evidence: if the ledgers were not properly qualified as business records under FRE 803(6), then they must be “testimonial,” because they would then be “merely statements, made at an unknown time and conveyed at a proffer session, that related [to the testimony their author would have provided had he testified].” Id. at 881. Of course, all ordinary-course business records are “testimonial” in this sense, since the most mundane computer print-out of a sales organization’s activities substitutes for live testimony to the same effect by the sales representatives involved. In Jackson, the notebooks did not meet the Rule 803(6) test, since the officer was not a qualified witness under the Rule, as he could not say who prepared the entries in the journals or whether they were kept in the ordinary course of a drug-trafficking enterprise. Id. at 882-83. Therefore, the drug notebooks failed to meet FRE 803(6), were “testimonial,” and thus should not have been admitted absent the cross-examined testimony of their author.

(In finding the foundation evidence lacking, the Court of Appeals noted pointedly that there was no evidence that the testifying officer’s information had come from an interview of the co-conspirator about the drug organization’s record-keeping, an ironic critique given that the government had deliberately refrained from introducing just such available testimony most likely out of fear of drawing a hearsay objection. However, that fear was unfounded: the court noted that the Confrontation Clause does not apply to exclude preliminary, foundational evidence offered to establish the business records exception. Id. at 881 n.6. Other courts of appeal have long ago held -- albeit prior to the most recent Supreme Court jurisprudence in this area -- that agent-witnesses could establish a business records foundation through their hearsay testimony reflecting interviews conducted of co-conspirators or other witnesses. E.g., United States v. Franco, 874 F.2d 1136 (7th Cir. 1989); United States v. Hathaway, 798 F. 2d 902 (6th Cir. 1986)).

So, in the majority’s analysis, a business record meeting the foundational elements of Rule 803(6), by definition and without regard to its content, whether it consists of a bill of lading for widgets or a handwritten record of drug quantities and dates, is non-testimonial. The business records evidence rule, in effect, defines the constitutional right..

The concurring opinion took the opposite conceptual view, rejecting the notion that the contours of the Confrontation Clause are shaped by an evidence rule, and arguing that the majority should only have considered whether the ledgers were testimonial and implicated the Confrontation Clause, because then they could not be introduced without the defense being given an opportunity to cross-examine a qualified witness, regardless of the ledgers’ qualification or not as business records under the evidence rules. Id. at 888-889. The same result would have obtained in Jackson under either analysis, because the notebooks were neither qualified as business records (majority test for exclusion) nor was the defense given its full cross-examination opportunity (concurring judge’s test), hence the minority opinion concurred in the result. The concurrence also applied a different test to determine the fundamental question whether the records were “testimonial.” These notebooks were "testimonial" because they represented the involvement of government officers in the production of testimony with an eye toward trial, based on the fact that the ledgers were produced to the government by a co-conspirator during a proffer session. Id. at 888, citing Crawford v. Washington, 541 U.S. 36 (2004).

However, the analysis of the concurring judge also lacks persuasiveness. If the mere transmission of evidence to the police makes it "testimonial," then the production of the most mundane, ordinary-course business record to the government, in response to a subpoena or other official request, would render that business record “testimonial," in effect nullifying the business records rule of evidence and constitutionally compelling live testimony in all instances. That cannot be correct. Indeed, in Crawford, the case relied upon by the concurring opinion for this proposition, the involvement of law enforcement officers was not in their passive receipt of a record previously created by a witness, but in actively eliciting and taping for use at trial a statement by the victim of a violent assault. That taped statement was thereby rendered “testimonial.” By contrast, the ledgers in Jackson were not created with the assistance of police or at their instigation, they were merely handed over to the police by a co-conspirator seeking to curry favor.

Confusion, as ever, reigns over the current state of Confrontation Clause analysis.
 

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Few provisions in the Bill of Rights better illustrate the shortcomings of an “original intent” approach to Constitutional interpretation than does the Fourth Amendment’s guarantee of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  Eighteenth-century words must be given new meaning in order to have currency in the twenty-first century.  As record-keeping has shifted from storing a handful of parchment documents in a Colonial-era footlocker to housing millions of bytes of data on sleek laptops, Fourth Amendment jurisprudence has struggled to balance legitimate law enforcement needs with citizens’ modern expectations of privacy.  No consensus has been achieved on updating the legal construct of the Fourth Amendment to encompass both old and new means of maintaining information.

The Supreme Court has yet to offer definitive computer-search guidance, and in the last year, the courts of appeal have exemplified dramatically different approaches to the problem of limiting the propensity of law enforcement authorities to rummage through the contents of computers in search of evidence in the same way they would skim documents in a file cabinet.

In United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010), involving the BALCO steroids investigation, agents had obtained a warrant to search computer records related to 10 named ballplayers in a specimen-collection laboratory. Based on Ninth Circuit precedent, the magistrate judge conditioned the warrant to require non-case agents with computer training to first conduct preliminary data reviews on-site to limit the universe of computer media which needed to be removed from the site for further examination, and to require those persons to conduct their off-site review so that non-pertinent data could be returned quickly. But these restrictions were ignored in executing the warrant, and the lead case agent broadly reviewed all computer files and directories at the laboratory, searching for the files affecting the 10 players. He reviewed the drug tests of hundreds of other ballplayers, and later used that information to secure additional search warrants in other districts within the Circuit, leading to the seizure of additional evidence involving many other ballplayers.

The government sought to justify on “plain view” grounds the broad review of records of ballplayers not named in the search warrant, arguing that the others’ test results were intermingled in computer directories with the results for the players identified in the warrant. The Ninth Circuit, sitting en banc, rejected the argument that agents could permissibly review entire hard drive directories thought to contain the narrower data eligible to be seized under the terms of the warrant, mocking the argument in a series of rhetorical questions: “Why stop at the list of all baseball players when you can seize the entire [directory in which they were found]? Why just that directory and not the entire hard drive? Why just this computer and not the one in the next room and the next room after that? Can’t find the computer? Seize the Zip disks under the bed in the room where the computer once might have been … Let’s take everything back to the lab, have a good look around and see what we might stumble upon.” Id. at 1170-71. While “over-seizing” evidence is an “inherent part of the electronic search process,” the court of appeals called for greater vigilance on the part of judicial officers in striking a balance between the needs of law enforcement and the Fourth Amendment rights of individuals. Id. at 1177.  The court of appeals affirmed several district court orders compelling the return of all of the evidence improperly seized on the various warrants.

Not surprisingly, computer searches in the conservative-leaning Fourth Circuit are viewed through a more law enforcement-friendly prism. In United States v. Williams, 592 F.3d 511 (4th Cir. 2010), cert. den., 2010 WL 2504942 (Nov. 15, 2010), where the subject had sent threatening emails to a local church, police obtained a warrant to seize all computers and media in his residence which were “indicative” of the state offenses of harassment, through use of obscene and profane language, and making threats of injury. The police and FBI executed the warrant by removing all of his computers and media to an off-site location for review, where they found child pornography on a DVD. Williams moved unsuccessfully for the suppression of the child pornography evidence, arguing that the warrant did not authorize a search of each computer file in his possession, but only of those files related to the designated offenses; he also argued that “plain view” could not sustain the seizure, because then the exception would swallow the entire Fourth Amendment when it came to computer searches.

The Fourth Circuit had no difficulty in affirming denial of the defendant’s suppression motion. Even if the warrant did not authorize the seizure of child pornography, the “plain view” exception controlled. Id. at 521. The warrant “impliedly authorized officers to open each file on the computer and view its contents, at least cursorily” to determine if the file fell within the scope of the warrant; after all, the court noted, the designation or labeling of files on a computer can easily be manipulated to hide their contents. Id. at 522. Lest there be any doubt about the chasm between the views of the Ninth and Fourth Circuits, the latter concluded: “At bottom, we conclude that the sheer amount of information contained on a computer does not distinguish the authorized search of the computer from an analogous search of a file cabinet containing a large number of documents.” Id. at 523.

Between the two extremes is the view typified in the Tenth Circuit’s decision in United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009), cert. den., 130 S. Ct. 1028 (2009). Authorities in Burgess executed a search warrant for evidence of drug sales and seized a laptop and two hard drives from the defendant’s motor home. An agent searching for photos of drugs and drug proceeds on the computer media found child pornography during his preview of image files; he then ceased the preview and obtained a new warrant for child pornography files. Burgess moved unsuccessfully to suppress evidence of those images, and the Tenth Circuit affirmed the denial of his motion. The court held that it was “unrealistic” to expect a warrant to narrow the scope of a search by filename or extension, since names could be altered, and that keyword searches directed against an entire hard drive might miss evidence, and so the search process must be “dynamic.” Id. at 1093-94. Although attempting to structure the mechanics of the search in the warrant (as the Ninth Circuit now requires) is “folly,” id. at 1094, there are some functional limits on computer searches; the officer must first look in the most obvious places on the computer, starting with file structure, then look for suspicious file folders, and then look for files and types of files most likely to contain the objects of the search, using keyword searches. “But in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.” Ibid.

These contrasting approaches illustrate the degree to which confusion will reign until the Supreme Court speaks to the matter.
 

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There are several recurring instances in the practice of criminal law where the use of particular terminology in the right circumstance makes the difference between an action which is unconstitutional or improper and one which is not, e.g., effectively invoking the right to counsel under the Fifth Amendment; saving an indictment from a fatal flaw by using the disjunctive or conjunctive to connect its means and methods; saving a co-conspirator statement under Bruton and the Sixth Amendment through the application of the correct pronoun.  It seems sometimes that medieval scholastics are not as far removed from present-day lawyers as the intervening centuries would suggest.

The Third Circuit recently added to the Fourth Amendment analysis which attaches dispositive significance to mundane terms. In United States v. Tracey, 2010 WL 681364 (3d Cir., Mar. 1, 2010), a Pennsylvania police officer had drawn up a detailed search warrant affidavit in a child pornography investigation. His seven-page affidavit -- which detailed the offense under investigation, the location to be searched, and the items which might be located there, was physically attached to the warrant application and warrant form itself -- was signed on each page by the officer who signed the application, and was referenced in various places on the warrant application. However, the warrant only generally described the items to be seized, in contrast to the greater, and sufficient, level of detail in the attachment. The district court suppressed the search in question, finding that the warrant was not particularized, or was too “general,” under the Fourth Amendment and therefore inadequate.

The Third Circuit agreed that the warrant was defectively “general,” a point the government conceded, and held that the more-detailed affidavit was not sufficiently incorporated into it. While incorporation would have cured the warrant’s defect, the warrant application failed to use words such as “attached affidavit which is incorporated herein,” “see attached affidavit,” or “described in the affidavit.” The application thus failed to “contain explicit words of incorporation.” But in a small nod to substance over linguistic precision, the Court did hold that the Leon good faith exception applied to save the search for the government, because the attached affidavit was in sufficient proximity to the search warrant to support the objective good faith of the officers in conducting their search.

So, words do and always will matter under the Fourth Amendment, and Tracey provides counsel with yet another, technical basis on which to attack an improper search.
 

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As reported here recently, the lower courts continue to struggle to apply the new, restrictive Confrontation Clause jurisprudence of the Supreme Court's decision last year in Melendez-Diaz to various kinds of certifications and reports which previously were regularly admitted at trial.  Subject now to a searching Sixth Amendment analysis which bars admission of hearsay statements when the declarant is unavailable at trial and there has been no prior opportunity for cross-examination, most formerly routinely-admitted paper records upon which prosecutors have relied should be barred.  Some courts have stepped boldly into this new world, while others have notably stumbled at the doorway.

There are two recent illustrations of this fascinating dynamic at work.  In United States v. Martinez-Rios, 2010 WL 323553 (5th Cir., Jan. 28, 2010), the Fifth Circuit held correctly that the defendant's Sixth Amendment rights were violated when the trial judge admitted, in an illegal re-entry case, an Immigration Certificate of Non-Existence of Record (CNR) to establish the essential element that the defendant was not authorized to re-enter the United States after deportation.  Although Fifth Circuit precedent had previously permitted the introduction of CNR's, the court recognized that Melendez-Diaz had changed the landscape; the CNR was testimonial in nature and was improperly admitted.

Conviction reversed even on a plain error standard, right?  No.  The appeals court found sufficient other evidence in the record to establish the element of lack of authority: the defendant had been found by authorities lurking in bushes after having admitted crossing the Rio Grande into Texas and also admitted having "no documents."  If the foregoing is adequate proof of non-authorized entry, then every alien found walking into the United States should be presumed to lack authority and CNR's would be unnecessary.  However, this thin, circumstantial evidence -- or, as the Fifth Circuit put it "all that testimony" -- showed that the erroneous admission of the CNR did not affect the defendant's substantial rights.   Result: conviction affirmed.

At least the Fifth Circuit correctly, and easily, applied Melendez-Diaz.  In contrast, the First Circuit in United States v. Dowdell, 2010 WL 481416 (1st Cir., Feb. 12, 2010), dropped the ball completely.  Dowdell was convicted of drug distribution; his defense was misidentification and included the claim that he was not the individual nicknamed "Smoke" shown in a blue shirt on a surveillance video shot shortly before his arrest.  The government offered at trial the booking sheet prepared at the time of arrest, in which a police officer reported that Dowdell was wearing a "blue plaid shirt."

The trial court had admitted the booking report under Fed. R. Evid. 803(8), the government-records hearsay exception, which however excludes from its embrace police reports and other records evincing matters observed by police officers.  The appeals court first made quick work of the seeming bar posed by  the evidence rule, saying that "we decline to give it a literal, unqualified meaning."  So, the booking sheet somehow passed muster under the hearsay exception. 

It cannot be determined from the opinion if a Melendez-Diaz objection was made below, but the First Circuit was applying a de novo standard of review to the trial court ruling, so was free to raise the Confrontation Clause issue sua sponte.  Incredibly, though, the First Circuit failed to measure the admissibility of the inculpatory booking sheet under the controlling Sixth Amendment standard.  It is obvious that the police officer's observations, recorded on the booking sheet, are testimonial, and were made by a declarant who neither testified at trial nor was ever subject to cross-examination.  The single most important item of evidence linking Dowdell to "Smoke" was admitted unconstitutionally and the conviction was flawed.  Result: conviction affirmed.

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Last year the Supreme Court emphatically extended its new Confrontation Clause jurisprudence -- abjuring reliance on historically-rooted hearsay exceptions to require in criminal cases that  "testimonial" hearsay be kept out unless subject to cross-examination -- to in-court evidence from drug-testing labs.  Under the Melendez-Diaz case, the prosecution can no longer admit lab reports but must present live witness testimony as to chain of custody issues and test results.  The dissent in Melendez-Diaz predicted that the necessity for live testimony would strain state resources and crime labs around the country.

Not so much, it now appears, at least in the Seventh Circuit.  In United States v. Turner, 591 F.3d 928 (7th Cir. 2010), the state crime lab chemist, Hanson, who had run all the tests on a sample of suspected crack cocaine, taken all the test notes, and written the report confirming the nature of the substance was not called by the government at trial because she was on maternity leave.  Instead, the government in this distribution case called her supervisor, Block.  In testimony that would seem to have flouted the Sixth Amendment and Melendez-Diaz, Block was permitted to testify -- after neutrally describing his lab's equipment and calibration, and the testing protocol for cocaine -- that he had not done any independent testing on the material but had reviewed Hanson's report, Hanson's data charts, and Hanson's handwritten notes, and had reached the same conclusion as had Hanson: the stuff was indeed crack cocaine.

To be sure, Hanson's report, charts, and notes were not literally admitted into evidence, but surely they were virtually admitted through Block's parroting of their contents.  Yet, remarkably, the Turner court held that there was no Sixth Amendment violation because those materials were not actually marked as exhibits and handed to the jury and because Block provided the jury with what was "unequivocally" his own opinion.  Id at 933.  And, by the way said the Turner court, Melendez-Diaz "did not do away with Federal Rule of Evidence 703."  Id. at 934.

The court's last, throw-away comment is particularly noteworthy.  FRE 703, of course, generally permits an expert to rely on hearsay in forming and delivering an opinion if the hearsay is of a type reasonably relied upon by experts in that field.  That is to say, FRE 703 allowed the kind of testimony offered by Block until Melendez-Diaz said that it didn't, because the Confrontation Clause supersedes any conflicting rule of evidence.  Arguably, the Turner decision is result-oriented, reached in order to save a conviction against a seeming constitutional violation.  It will be interesting to watch the continued development in the lower courts of Melendez-Diaz as those courts struggle to apply the Supreme Court's bold restatement of the impact of the Sixth Amendment on the admission of hearsay evidence in criminal cases.

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Since the seismic shift in Confrontation Clause jurisprudence effected by Crawford v. Washington, 541 U.S. 36 (2004), lower courts have struggled to define precisely which "testimonial statements" are now excluded from evidence unless the government can show both that the declarant is unavailable to testify at trial and there was a prior opportunity for cross-examination of the declarant. The Crawford Court did not define the term "testimonial" exhaustively, leading to some confusion in the ranks.  The Court's more recent jurisprudence has been unpredictable, such as its decision last year that the Confrontation Clause requires the government to present live testimony in order to admit lab test results in drug and other cases.

In at least one major category of government-developed evidence, it appears that lower court confusion has led to lower court error in applying Supreme Court precedent. Lower courts have since Crawford generally treated as nontestimonial, and thus impervious to Confrontation Clause objection, co-conspirator statements made to and often recorded by government informants. Recently, for example, the Sixth Circuit held in United States v. Johnson, 581 F.3d 320 (6th Cir. 2009) that statements made by Johnson's co-conspirator, O'Reilly, to a government informant were admissible against Johnson. They qualified as an exception to the hearsay rule under FRE 804(b)(3) as statements against penal interest, where O'Reilly was presumed unavailable to testify because he was likely to assert his Fifth Amendment privilege. As for the Confrontation Clause, the court of appeals held that O'Reilly's statements were nontestimonial because they were not made in response to police interrogation. Id. at 325-26.

The Sixth Circuit cited other, post-Crawford decisions which have likewise held that co-conspirator statements to informants are nontestimonial under the Sixth Amendment. For example, the Third Circuit in United States v. Hendricks, 395 F.3d 173 (3d Cir. 2005), held that statements of co-conspirators made to a CI were admissible under the Confrontation Clause. What underlies the holdings in these cases is the essential proposition that answering the questions of and responding to a government informant is different for Sixth Amendment purposes than making the same type of statements to a known government representative, as in a formal interview with an agent or police officer. The problem with this proposition is that the Supreme Court's Sixth Amendment jurisprudence shows it to be unfounded.

In Massiah v. United States, 377 U.S. 201 (1964), the Court long ago held that it was a violation of the Sixth Amendment to admit at trial the statements of the defendant made to a government informant after he had been arrested and his right to counsel had attached. To the argument that there was a meaningful difference under the Sixth Amendment between post-charge interrogation by the police and interrogation by an informant working for the police, the Court said unequivocally:

It is true that in the Spano [v. New York] case [excluding a post-indictment confession] the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But [the Sixth Amendment rule] must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.

Under Massiah, then, the distinction drawn in cases like Johnson and Hendricks based on whether the interrogator is or is not wearing a uniform and carrying a badge is a meaningless one. If the person to whom statements are made is either a law enforcement agent or one doing the bidding of law enforcement, then those statements should be deemed "testimonial" under the Sixth Amendment and they should not be admitted unless the declarant is unavailable at trial and was subject to cross-examination about the statement at an earlier time. The second element of that test will never been met in the informant situation and those statements should be thrown out.
 

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Common wisdom is that a jury's verdict cannot later be impeached through the testimony of deliberating jurors regarding misconduct which occurred inside the jury room. Federal Rule of Evidence 606(b) explicitly provides that fellow-juror testimony is inadmissible to impeach a verdict, except to show clerical error on the verdict sheet or the influence of outside or extraneous information. Typical of the latter scenarios is one juror sharing a newspaper story about the case or introducing into deliberations her or his personal research into the scene of a crime or the background of a defendant. Irregularities in the internal deliberations of a jury are generally not proper grounds for subsequent inquiry, for fear of impinging on the free-ranging nature and mysterious ways of the jury process. For example, racial comments among jurors have been found by most courts to be barred from subsequent inquiry under the terms of Rule 606(b).

Yet, a small number of cases have carved out a common law corollary to Rule 606(b), permitting juror testimony to explore whether, despite the strictures of the Rule, due process and Sixth Amendment violations have occurred within the jury. Cases such as Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987) have sanctioned inquiry in instances where an "extremely rare abuse," such as pervasive racial prejudice, animated the deliberations. Other courts have been less willing to part the jury curtain. United States v. Benally, 546 F.3d 1230 (10th Cir. 2008) (district court abused discretion in admitting evidence of racial comments in the jury room; it is "not necessarily in the interest of overall justice" to cure expressions of racial prejudice among jury members).

The First Circuit has thrown its lot in with those courts of appeal which have concluded that racial animus toward a defendant is sufficiently destructive of that person's constitutional rights to permit, if not compel, post-verdict inquiry. United States v. Villar, 586 F.3d 76 (1st Cir. 2009). Villar is Hispanic, and after his bank robbery conviction a juror emailed the defense attorney to complain of several fellow jurors who were unwavering in favor of conviction on the expressed ground that "they" cause all the trouble in the community. The First Circuit agreed that Rule 606(b) did not support inquiry on this basis, but held that this was one of the "rare and grave" cases where claims of racial or ethic bias implicated Villar's constitutional safeguards. The district court, as a result, had discretion to examine the validity of the verdict as against the biased statements of jurors.
 

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The usual protocol when agents execute a search warrant at an office or home is to leave a copy of the warrant with the person in control of the premises, often but not necessarily the owner.  Rule 41(f)(1)(C) requires it.  But what kind of notice is required when agents execute a search warrant to seized stored emails from a subject's internet service provider (ISP), such as Google or Hotmail or Verizon?  Answer: none. to the subscriber.

A District of Oregon judge recently considered this question in a case involving a warrant served under the terms of the Stored Communications Act, 18 U.S.C. § 2703(a), which requires a search warrant -- as opposed to a mere subpoena -- if law enforcement officers wish to obtain e-mails stored for 180 days or less.  In re Application of United States for Search Warrant, 2009 WL 3416240 (D. Ore., June 23, 2009).  The magistrate judge presented with the government's application for a warrant granted the warrant but rejected the Government' s arguments that supplying the warrant to the ISP was sufficient notice under the SCA and that Rule 41's notice procedure was not applicable; the Government was initially ordered to provide notice of the seizure to the individual subscriber.

On an appeal by the Government, the district judge reversed.  While the opinion contains a useful summary of search procedures under the involved provisions of the SCA and the interplay of the SCA with Rule 41, the rationale of decision was rather straightforward.  The third party electronic context is no different than other third party contexts, such as when agents seize a package in the control of Federal Express.  In the latter instance, a copy of the search warrant is permissibly left only with Fed Ex and there is no need to inform the sender or recipient of the package of its seizure.  ISP's are analogous to Fed Ex, and notice to the individual subscriber to the ISP is unnecessary.

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When law enforcement officers execute a search warrant in a suspected drug case and the warrant does not explicitly provide for the search of computers in the residence, the officers run afoul of the Fourth Amendment if they search a bedroom computer without securing it and seeking a new warrant, according to the Ninth Circuit.

In United States v. Payton, 2009 U.S. App. LEXIS 15969 (9th Cir., July 21, 2009), .local police obtained a warrant to search for drugs, as well as sales ledgers and financial records of the person controlling the subject residence.  No drugs were found, but a police officer happened on a bedroom computer, and with a few mouse clicks discovered and viewed child pornography.  The appeals court, reversing the trial court, held that the search of the computer was improper.

Although recognizing that the search of a computer generally is more intrusive than searches of other containers, the Payton court emphasized that there is not special categorical protection against computer searches in the Fourth Amendment.  However, in this case the warrant did not specify computers as things to be searched; while ledgers and financial records are capable of being stored in a computer, the lack of specificity in the warrant combined with the lack of circumstantial indicia that ledgers and financial records were on this computer (i.e., there was an absence of such documents in proximity to the computer), to render the search unreasonable.

The better practice, and one the court expressly intended to encourage, would have been for the officers to secure the computer and seek a second warrant specifically oriented toward its search.  Such a practice would better accord with "the special considerations of reasonableness involved in the search of computers."

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The Supreme Court last week applied a newly-invigorated Confrontation Clause to deny the admission at trial of drug lab test certificates in an opinion which may unintentionally prove very useful to attorneys defending criminal tax cases.

In Melendez-Diaz v. Massachusetts, 2009 U.S. LEXIS 4734 (June, 25, 2009), the Court unremarkably extended the reach of Crawford v. Washington, 541 U.S. 36 (2004) to the test reports of crime laboratories, holding that the admission in a Massachusetts trial of a laboratory report showing that a seized substance was cocaine violated the defendant's Confrontation Clause rights; the State was obliged instead to produce witnesses in court to establish the drug's chain of custody and the testing conclusion. The dissent argued less forcefully that the majority's conclusion was unwarranted or surprising after Crawford, and more effectively that a practical consequence of the decision would be to strain the resources of crime labs everywhere.

But one legal argument posited by the four Justices in dissent was that the lab certificate of results was akin to a business records certificate offered under FRE 803(6), which, even after Crawford, may be admitted in the absence of a live witness. Justice Scalia, writing for the five-Justice majority, dismissed this comparison. First, the business of a crime lab is to produce evidence for use at trial and so it does not share the routineness and regularity of a true business, leaving the former's products -- drug test reports -- outside the scope of Rule 803(6). Second, true business records are neutrally created for the purpose of administering an entity, rendering them non-testimonial when offered in a criminal trial and thus outside the Confrontation Clause, while police lab reports are prepared specifically for use at such a trial and to inculpate a defendant, so are testimonial and subject to the Confrontation Clause. Id. at *31-33.

To further make its point, the majority contrasted non-testimonial clerks' certificates as to records located in a business or government office with "those cases in which the prosecution sought to admit into evidence a clerk's certificate attesting to the fact that the clerk had searched for a particular relevant record and failed to find it … the clerk's statement would serve as substantive evidence against the defendant whose guilt depended on the non-existence of the record for which the clerk searched. Although the clerk's certificate would qualify as an official record [in the sense of FRE 803(6) and 803(8)] the clerk was nonetheless subject to confrontation." Id. at *31.

In myriad criminal cases the government is required as an essential element to prove the absence of an official record in order to establish guilt, but perhaps this is most often true in tax prosecutions. Whether seeking to prove a misdemeanor failure to file returns, 26 U.S.C. § 7203, or a felony Spies tax evasion where an act in furtherance is the failure to file returns, 26 U.S.C. § 7201, the prosecutor typically relies on a certificate from the IRS records center that no return is on file for the given year(s). Defense attorneys can now use Melendez-Diaz to argue that any and all IRS personnel involved in the search for the missing filing must be called as live witnesses in court, since the IRS certificate of non-filing cannot be admitted without violating the defendant-taxpayer's constitutional right of confrontation.
 

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The Supreme Court has long held that police may without a warrant seize a container for which there is probable cause to believe holds contraband or evidence of a crime, if there are exigent circumstances, and then later obtain a warrant for the search of its contents. United States v. Place, 462 U.S. 696 (1983). A warrantless seizure based on probable cause may extend for a far longer period than a so-called Terry stop based only on reasonable suspicion. Compare United States v. Lewis, 902 F.2d 1176 (5th Cir. 1990) (seizure of package overnight based on probable cause does not violate Fourth Amendment); United States v. Jodoin, 672 F.2d 232 (1st Cir. 1982) (three day delay supported by probable cause) with Terry v. Ohio, 392 U.S. 1 (1968) (ninety minute detention of traveler's luggage based only on reasonable suspicion was improper).

But even exigent seizures grounded on probable cause must be reasonable and the police must act with alacrity in obtaining a follow-on search warrant or the seizures will be held to violate the Fourth Amendment. An example is provided by United State v. Mitchell, 2009 U.S. App. LEXIS 8258 (11th Cir., April 22, 2009). Federal agents had interviewed Mitchell in his home in connection with a child pornography investigation. Once Mitchell confessed to subscribing to child pornography websites and storing images on his computers, agents requested his consent to search a desktop computer, which Mitchell declined. However, since Mitchell had admitted that the computer in question held contraband materials, agents opened the central processing unit and removed its hard drive, where the images were believed to be stored.

The lead agent then left for a training program, and it was not until 21 days later that a search warrant was obtained to examine the contents of the hard drive. Illegal images were found, and Mitchell pled guilty to their receipt, subject to appealing the denial of his suppression motion in the district court. Mitchell prevailed as the court of appeals reversed the district court. While the exigent seizure of the hard drive, analogous to the container in the above cases, was not impermissible, a delay of three weeks in securing a search warrant was unreasonable and unjustified. The delay rendered the seizure illegal and the evidence was thrown out.
 

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Conditions of probation or supervised release sometimes include special conditions by which the defendant consents to warrantless searches of his residence by his/her probation officer. (In the District of New Jersey, standard probation conditions provide only for consent to "visits" by a probation officer and the corresponding consent to the confiscation of contraband in the plain view of that officer). Even in the absence of such conditions, the Eleventh Circuit recently held, a probation officer can conduct a warrantless search of the probationer's residence based only on "reasonable suspicion." The justification for the seeming Fourth Amendment violation: a probationer by virtue of his/her status simply enjoys a lower expectation of privacy than does the average citizen.

In United States v. Carter, 2009 U.S. App. LEXIS 8838 (11th Cir., April 27, 2009), the district court had denied Carter's motion to suppress guns and drugs found in his home in the course of a warrantless search conducted by his probation officer and state drug agents. No prior Eleventh Circuit case had approved of the warrantless search of a probationer's residence simply because of his status. The Supreme Court had previously endorsed in United States v. Knights, 534 U.S. 112 (2001), such a warrantless search only where the defendant had given prior consent as a condition of probation.

But the court of appeals nonetheless affirmed the district court, holding that Carter's status as probationer alone meant that he enjoyed a reduced expectation of privacy. When combined with the substantial government interest in "monitoring" him because of his prior drug and violent crime background, the lowered expectation of privacy justified the use of warrantless searches of Carter's home based only on a reasonable suspicion standard.

It is unclear if the Carter rationale would extend to probationers who had committed fraud crimes, resulting one might argue in a presumably lesser government interest in their being "monitored." Of course, the government could argue that, depending on the scope and effects of the prior white collar crime, such probationers are even more worthy of "monitoring." Practitioners may need to warn their clients on probation or supervised release that their status alone may justify a raid of their homes conducted solely on the basis of a belief, held by an officer of the court not trained in law enforcement and untested by judicial review, that there might be evidence of a federal crime in the home.
 

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In a decision issued on April 29th, the Supreme Court -- in a decision which thematically follows from the previous post regarding the breadth of the "impeachment by contradiction" doctrine -- has reaffirmed the principle that a defendant may be impeached with a statement obtained from him in violation of the Sixth Amendment. Kansas v. Ventris, 556 U.S. ___, No. 07-1356 (Apr. 29, 2009).

Defendant Ventris was convicted of various charges in state court after the jury was allowed to hear from a jailhouse informant, who testified that Ventris admitted in his jail cell after arrest on these charges that he had committed a robbery and murder. As Ventris's Sixth Amendment rights had attached, the statement was plainly obtained in violation of the Sixth Amendment under Massiah v. United States, 377 U.S. 218, 224 (1964) and could not be used in the State's case in chief. The prosecution did, however, persuade the trial court to allow use of the statement to cross-examine Ventris after he testified that another defendant had committed the crime.

The Supreme Court held that the tainted statement was permissibly used to impeach Ventris's inconsistent testimony at trial. In a majority opinion by Justice Scalia, the Court explained that "[o]ur precedents make clear that the game of excluding tainted evidence for impeachment purposes is not worth the candle … It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can … provide himself with a shield against contradiction of his untruths." Slip op. at 6.
 

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Typically, federal agents sweeping through business offices with a search warrant in hand draw no distinction between common areas and individual offices. It is unclear the extent to which a corporate office individually has standing to challenge a search, not of his or her personal office, but of common areas within the corporate offices. The Ninth Circuit recently addressed precisely that question.

In United States v. SDI Future Health, Inc., Docket No. 07-10261 (9th Cir., Jan. 27, 2009), the Court of Appeals reviewed the district court’s order suppressing evidence obtained from a search warrant executed at the offices of SDI Future Health, Inc. (“SDI”). One of the issues on appeal was the extent to which a business employee may have standing to challenge a search of business premises generally; that is, those areas not reserved for the employee's exclusive use.

After a lengthy tax investigation, IRS agents obtained a search warrant based on allegations that SDI had engaged in wide-ranging Medicare fraud and that both SDI and Todd Stuart Kaplan (“Kaplan”), its president and part-owner, and another officer named Brunk, had also committed tax fraud.

The team of agents arrived at the scene and met with one of SDI’s executive officers. Kaplan received a copy of the warrant and he consented to allow investigators to search an off-site storage warehouse used by SDI. More than three years later, SDI, Kaplan and Brunk filed a motion to suppress evidence obtained from the search. The district court found that Kaplan and Brunk had standing to challenge the search of SDI’s business premises. The government sought an interlocutory appeal of the district court’s order and argued, among other things, that Kaplan and Brunk lacked standing to challenge the search and seizure of materials from SDI’s premises.

The Ninth Circuit explained that even though commercial property is treated differently than residential property for Fourth Amendment purposes, individuals may still have a “reasonable expectation of privacy” against police intrusions into their offices. The expectations of privacy in a work environment are a case-by-case determination.

An employee of a corporation, either worker or manager, does not, simply by virtue of his status as such, acquire Fourth Amendment standing with respect to company premises. The Ninth Circuit looked to the Tenth Circuit’s decision in United States v. Anderson, 154 F.3d 1225 (10th Cir. 1998), to deal with situations in which a corporate employee does not work on a regular basis in the area searched. The Anderson factors are: (1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.

Comparing Anderson with Ninth Circuit precedent, the Court in SDI concluded that, except in the case of a small, family-run business over which an individual exercises daily management and control (as was the case in United States v. Gonzalez, 412 F.3d 1102 (9th Cir. 2005)), an individual challenging a search of workplace areas beyond his own internal office must generally show some personal connection to the places searched and the materials seized.  The Court wrote that it would specifically determine the strength of an individual’s personal connection with reference to the following factors: (1) whether the item seized is personal property or otherwise kept in a private place separate from other work-related material; (2) whether the defendant had custody or immediate control of the item when officers seized it; and (3) whether the defendant took precautions on his own behalf to secure the place searched or things seized from any interference without his authorizations. Absent this type of personal connection to, or exclusive use of workplace items, a defendant cannot establish standing for Fourth Amendment purposes to challenge the search of a workplace beyond his internal office. In SDI, the Ninth Circuit reversed the granting of the motion to suppress and remanded the matter for additional fact-finding consistent with the test it had outlined.

(With appreciation to Beth L. Weisser, Esq., for contributing this entry)
 

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It has been told to every law student (and even many non law students) for over two hundred years: The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures and, for the most part, requires the police to have probable cause or a warrant before making an arrest. Sounds simple enough. In practice, of course, it is anything but.

Case law has established an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. This judicially created rule was and is designed to safeguard our Fourth Amendment rights through its deterrent effect.

But the Supreme Court has recently cut back on the scope of the exclusionary rule. Herring v. United States, 129 S. Ct. 695 (2009). In this case, Bennie Herring was arrested in one Alabama county based on a warrant listed in a neighboring county. A search incident to that arrest found a gun and drugs. It was subsequently discovered that the warrant had been recalled months earlier, though the recall had never been entered into the database. Herring, who was indicated on federal gun and drug charges, moved to suppress the evidence on the ground that his initial arrest had been illegal. The District Court, even after assuming a Fourth Amendment violation, found the exclusionary rule did not apply. The Eleventh Circuit affirmed, finding the arresting officers were innocent of any wrongdoing and that the failure to update the database was merely negligent.

In a 5-4 decision, the Supreme Court affirmed and held that when police mistakes which lead to an unlawful search are the result of isolated negligence attenuated from the search – as contrasted with systemic error or a reckless disregard of constitutional requirements – the exclusionary rule does not apply. The Court found that the conduct here was not objectively culpable as to require exclusion as the marginal benefits that might follow from suppressing evidence obtained in this circumstance cannot justify the substantial cost of exclusion.

To trigger the exclusionary rule, the law enforcement conduct must be sufficiently deliberate and culpable such that exclusion can meaningfully deter similar conduct in the future. The analysis is objective, it is not an inquiry into the arresting officers’ subjective awareness. Had the police knowingly made false entries in the database or if it was shown law enforcement was reckless is maintaining the warrant system, that conduct would have justified application of the exclusionary rule. No such conduct took place here as it was an administrative oversight. Excluding the evidence in this case would have provided no deterrence to future misconduct.

The dissent argued that the exclusionary rule is often the only effective remedy to redress a Fourth Amendment violation and that it remains absolutely necessary to ensure that the Fourth Amendment prohibitions are observed. Further, the dissenters contended that to compel respect for our constitutional guarantees, the Court should have excluded the evidence to ensure that there existed no any incentive to disregard the Fourth Amendment. Finally, the dissent contended that the majority opinion runs counter to a foundational premise of tort law – that liability for negligence (a lack of due care) creates an incentive to act with greater care.
 

(With appreciation to Scott M. Badami, Esq., for contributing this entry)

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In a recent decision, the Appellate Division of New Jersey Superior Court upheld a warrantless search of an employee's workplace computers, and affirmed the resulting conviction of the employee for stealing more than $650,000 from his employer. The court's reasoning, however, left something to be desired, notwithstanding the arguably correct conclusion.

The employee in State of New Jersey v. M.A., Docket No. A-4922-06T4 (App. Div., Aug. 29, 2008) acted as a bookkeeper for a manufacturer of adhesive-backed labels. The owner confronted the employee over an unauthorized increase in the employee's salary; the latter admitted a small theft, offered repayment, and was fired. When the owner suspected that the defalcation was much greater, he called in the police and consented to a search of a desktop and laptop computer used by the former employee, but maintained at the company's offices. On the computers was found evidence of the employee's much larger theft.

The trial court denied a motion to suppress the results of the computer searches, and the appeals court affirmed. The Appellate Division reasoned first that the owner had the authority to consent to the searches, since he, and not the former employee, owned the computers. But, the court acknowledged, the search could still have been unlawful if the former employee had a reasonable expectation of privacy in the information he stored on the company-owned computers.

However, the court dismissed the "expectation of privacy" argument needed to ground a Fourth Amendment claim, saying simply "in the criminal context, employees have no reasonable expectation of privacy in a workplace computer." Yet, that statement is incorrect, jurisprudentially speaking, and the cases cited by the court do not support that broad assertion.

Generally, as shown in the federal cases cited by the court, employees can and do have a reasonable expectation of privacy in workplace computers, whether the context is criminal conduct or not. However, there is an exception to the Fourth Amendment's warrant requirement for a government employer which suspects the subject employee of workplace related misconduct; in that circumstance, warrantless searches of office computers are permitted. See O'Connor v. Ortega, 480 U.S. 709 (1987) (plurality opinion). (There is also a diminution of any expectation of privacy where the workplace computers announce via banners or the employer had declaimed through an explicit office policy that the computers' content are subject to review by the employer. See O'Connor).

In this case, the label manufacturer had in hand an admission from the former employee of an embezzlement, albeit a small one; this evidence of workplace misconduct would under O'Connor and subsequent cases have authorized a warrantless search of the computers. So, the Appellate Division reached what is likely the correct result, but got there for the wrong reasons.
 

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On August 28, 2008, the Department of Justice announced revisions to its controversial Principles of Federal Prosecution of Business Organizations.

Initially cast as the "Thompson Memo" and then revised as the "McNulty Memo," these principles had been wielded by federal prosecutors as a cudgel, used to bludgeon corporations into waiving the attorney-client privilege and work product protections associated with the fruits of internal investigations and to compel the turnover of those materials in order to qualify the corporation for lenient treatment or no prosecution at all. Corporations who would not comply with these demands could, and would, be charged. Prosecutors had gone even further; the earlier formulations of these Principles had implicitly authorized them to take severe measures against corporations which advanced the legal fees of indicted officers or which had joined in common defense arrangements with such officers.

Spurred by Judge Lewis Kaplan's excoriation of the government for such heavy-handed tactics and his dismissal of an indictment in the KPMG prosecution in the Southern District of New York (United States v. Stein, et al), the DOJ finally surrendered. Yesterday, the DOJ adopted changes to the Principles which now provide explicitly that corporate cooperation will not be judged by a willingness to waive the privilege or work product protection associated with employee interviews and other investigative efforts, but will turn only on a willingness to disclose relevant facts. Prosecutors are now prohibited from seeking disclosure of privileged communications or opinion work product.

Moreover, prosecutors may no longer consider in assessing a corporation's eligibility for leniency whether the corporation is advancing legal fees for employees, or whether the entity has or has not fired or disciplined culpable employees. No longer will corporate participation in a joint defense agreement render the entity ineligible for favorable treatment.

These changes have been a long time in coming. Punishing corporations which act to protect the Sixth Amendment rights of their employees and which take the ameliorative step of internally investigating allegations of misconduct in an appropriate and confidential manner was not right and it was not consistent with the Constitution. And now it is also prohibited.
 

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More than thirty years ago, the Supreme Court laid down in Doyle v. Ohio, 426 U.S. 610 (1976) a principle both elegant in its fairness and seemingly simple in its application: due process does not permit the government to make use of the silence at the time of arrest and/or questioning of a Mirandized suspect.  But, as illustrated in recent cases from the Fifth and Ninth Circuits, the results of applying Doyle have been less than even and predictable.

In the Fifth Circuit case, the defendant was arrested as a felon-in-possession and had been administered Miranda warnings, after which he answered some questions before stopping. United States v. Fambro, 526 F.3d 836 (5th Cir. 2008). Fambro did not testify at trial, but the interviewing officer testified that Fambro did not deny knowing of the existence of the weapon which was found and the prosecutor argued in closing that Fambro had not denied knowledge or possession of the weapon. The court held that there was no Doyle violation, but in doing so the Fambro panel seemed to distort the trial record and ignore inconsistent intra-circuit precedent. For example, the opinion reported a series of direct examination questions put to the interviewing officer which clearly intended to highlight the omissions in Fambro's arrest statement ("Did he say [X]? No, he did not"]. Yet, the Fambro panel somehow characterized these questions not as exploiting the defendant's Mirandized silence, but as "testimony [which] only emphasizes what Fambro had said in his post-Miranda statement." Of course, pointing out that which a witness did not say could always be characterized as emphasizing the remainder which was said, but that logic guts Doyle completely. The Fambro court also brushed aside other Fifth Circuit decisions which "seem[] internally inconsistent."

In contrast, the Ninth Circuit recently came out dramatically differently in its application of Doyle. In United States v. Caruto, 526 F.3d 445 (9th Cir. 2008), the defendant's conviction was reversed because of a Doyle violation. In a drug importation case, Caruto had been arrested at a border crossing when cocaine was found in the gas tank of her truck. After being read her Miranda rights, Caruto answered a few questions from ICE agents, then invoked her right to counsel and the interview ended. An issue at trial was under what circumstances was Caruto in possession of the truck. One of the interviewing agents testified affirmatively to what Caruto had said in the interview about the vehicle. But in summation, the government argued from the omissions in Caruto's statement, repeatedly asking the jurors "Why did she not say [X, Y, or Z as to the truck]?" The Ninth Circuit held that this argument impermissibly highlighted the omissions from Caruto's statement and violated Doyle.
 

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