Ed Sapone’s DECISIONS OF THE WEEK – August-8-2019

Ed Sapone’s DECISIONS OF THE WEEK – August-8-2019

| Aug 8, 2019 | Ed Sapone’s Decisions of the Week

The Second Circuit released three interesting precedential opinions this week, though only one was a reversal. The reversal in United States v. Prado was probably more legally important on the procedural question of what defects survive a guilty plea and can be raised on appeal, than on the merits of the issue, which give us more to think about relative to the federal “boat cases.”

Second Circuit

On Monday, in United States v. Thiam, the Circuit affirmed defendant’s SDNY conviction, before Judge Denise L. Cote, for money laundering and conducting transactions in property criminally derived through bribery. The Circuit rejected defendant’s claims that: (1) the district court’s jury instructions were erroneous because they failed to include the correct definition of “official act” relative to the bribery conviction; (2) there was insufficient evidence to support a finding (a) of a quid pro quo exchange necessary for his conviction, and (b) that he committed an “official act” as properly defined; and (3) several evidentiary rulings by the district court were erroneous.

Defendant, a U.S. citizen, was Minister of Mines and Geology of the Republic of Guinea, in which capacity he received an $8.5 million bribe from a Chinese entity in return for supporting a Chinese joint venture with Guinea. Defendant lied to banks about his employment, nationality and income when opening 10 accounts in Hong Kong and the United States, to which he transfered funds from the bribery payments. In his own defense, defendant testified that the money he received was an undocumented personal loan with no interest rate or repayment date.

The statutes that defendant was alleged to have violated integrated the law of the country in which the public officials were alleged to have been bribed. Guinea’s Penal Code criminalizes “passive corruption,” or the receipt of bribes by a public official, and “active corruption,” or the payment of bribes to a public official, respectively.

On appeal, defendant primarily argued that the jury instructions were erroneous because they failed to reflect the definition of “official act” set forth by the Supreme Court in McDonnell v. United States, 136 S.Ct. 2355 (2106). Remember that SCOTUS focused on the definition of “official act,” and concluded that this term should be interpreted narrowly, such that “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit [the] definition of ‘official act.’”

The Circuit declined to apply the McDonnell definition to acts by a foreign official under principles of international comity. Even though defendant was not prosecuted in Guinea, he

could have been, and the Circuit deferred to Guinea’s interpretation of Guinea’s statutes, instead of the U.S. definition of official acts.

The Circuit also rejected defendant’s sufficiency arguments, finding that, given (i) the timing of the payments, (ii) defendant’s efforts to conceal both his true employment and the source of the payments, and (iii) his implausible explanation that the payments constituted an undocumented and interest‐free personal loan, there was sufficient evidence to support a finding by the jury of a quid pro quo exchange. In light of its holding that the McDonnell definition of official act did not apply, the Circuit found that there was also sufficient evidence that defendant had committed an official act under Guinean law.

Finally, the Circuit summarily rejected defendant’s evidentiary challenges to (1) the preclusion of excerpts of his post-arrest interrogation by the FBI, (2) the admission into evidence of a chart showing his luxury spending, and (3) the court’s permitting the government to cross-examine him regarding defendant’s non-compliance with foreign reporting requirements, knowledge of other bribes, and corruption in Africa.

The Circuit’s decision can be found here.

In United States v. Prado, the Circuit vacated and dismissed defendants’ SDNY convictions following guilty pleas before Judge Jed S. Rakoff, for conspiracy to distribute cocaine, and to possess cocaine with intent to distribute, while on board a stateless vessel subject to the jurisdiction of the US, in violation of the Maritime Drug Law Enforcement Act (MDLEA), because the government failed to demonstrate that the vessel was subject to US jurisdiction.

The MDLEA prohibits possession of a controlled substance with intent to distribute “even though . . . committed outside the territorial jurisdiction of the United States,” if the prohibited act is committed aboard a “covered vessel.” “Covered vessel” is defined to include three categories of vessels—one being a “vessel subject to the jurisdiction of the United States,” which includes a “vessel without nationality,” as well as several other categories of vessels including vessels that are in, or entering, or have departed from, the waters of the United States, and, only if the foreign nation consents, vessels that are in the waters of a foreign nation or are registered in a foreign nation.

The government here sought to show that the vessel on which the offense was committed was a vessel without nationality. The Circuit found that the government had failed to make that showing, primarily due to the Coast Guard boarding party’s inattention to the terms of the relevant statute. In the absence of indicia of registration such as flying a nation’s flag, presenting registration papers, or a volunteered assertion of national registration by the master, the statute calls on the investigating officer to ask the master (or individual in charge of the vessel) whether the vessel is registered in any nation. If that request is made, and the master makes no claim of registry in response, that would establish that the vessel is a “vessel without nationality.” But the Coast Guard boarding party did not follow that procedure, and then subsequently destroyed the vessel without having secured a vessel identification number, which made it impossible for the government to establish by other means that the vessel was without nationality.

The bulk of the Circuit’s lengthy opinion was devoted to the question of whether the government’s failure to prove that the vessel was subject to the jurisdiction of the US required reversal even though the defendants had pleaded guilty. The Circuit first found that the failure to

prove that the vessel was subject to US jurisdiction did not deprive the court of subject matter jurisdiction. But the Circuit did find that, under Rule 11, the plea was defective because the court did not accurately inform the defendant of the nature of each charge to which he was pleading guilty, and did not determine whether there was a factual basis for the plea. Because defendants did not understand the significance of statelessness vis-à-vis the jurisdiction to impose criminal liability, the guilty pleas were flawed.

The Circuit explained that, even though the district court may have believed it was unnecessary to explain these issues in view of the fact that the defendants had moved, through counsel, to dismiss the indictment on the ground that statelessness had not been established, Rule 11 does not allow the court to assume that a pleading defendant understands the charge because its nature has been the subject of discussion and argument by the defendant’s counsel. It found that a guilty plea requires the personal participation of the defendant, and the court is obligated to inform the defendant of the nature of the charge.

The Circuit’s decision can be found here.

In United States v. Eldred, the Circuit affirmed defendant’s District of Vermont conviction for knowingly accessing child pornography. The Circuit rejected defendant’s contention that the district court should have suppressed evidence collected with the use of a government search program. The program used was the Network Investigative Technique (NIT), which aided in the identification of defendant’s computer despite his use of anonymizing software. Defendant argued that the warrant that authorized use of the NIT was invalid. The Circuit held that regardless of whether the warrant authorizing the search was invalid, and whether the searches violated the Fourth Amendment, law enforcement officers had acted in good faith.

This appeal arises from one of the many prosecutions following the investigation by the FBI into Playpen, a child pornography site located on the dark web. The FBI infiltrated the website and discovered the identities of many registered users by deploying the NIT search program, which allowed the FBI to circumvent the anonymizing features of the dark web and collect computer-related identifying information, including internet protocol IP addresses, from the computers of these Playpen users.

The FBI developed the NIT—which basically is a computer code that was added to the digital content of the copy of the Playpen website residing on a government server in Virginia—to trace previously untraceable use of child pornography websites through the dark web. Once the NIT was deployed, whenever dark web users accessed Playpen and downloaded content so as to display it on their computers, that content was augmented with a set of computer instructions that traveled with it, through the dark web, until coming to rest on the computer of the Playpen user. When the NIT reached the Playpen user’s computer, the attached instructions executed, causing the user’s computer to transmit identifying information back to the government server in Virginia. The identifying information included an IP address, the type of operating system employed by the computer and an active operating system username, and information regarding whether the NIT had previously been delivered.

In 2015, the NIT was deployed pursuant to a warrant issued by a federal magistrate judge in Virginia. It ran for two weeks, during which time it identified, among others, defendant’s

computers in Montpelier, Vermont, leading to the seizure of his laptop, and the discovery of child pornography.

Following indictment, defendant moved to suppress all evidence and statements obtained from the NIT warrant on the grounds that the Virginia magistrate did not have authority to authorize searches outside her district. The district court agreed that the Virginia magistrate did not have authority under Fed.R.Crim.Pro. 41(b) to authorize searches outside her jurisdiction, but found that that the error was not of Fourth Amendment dimension, and that the FBI officers had acted in good faith. The district court, therefore, denied suppression.

On appeal, defendant argued that, because the magistrate lacked jurisdiction to issue the NIT warrant, it was void ab initio, and thus not a warrant, in Fourth Amendment terms. Three circuits of the nine that have considered the issue (the NIT warrant issue) have accepted aspects of this argument.

The Circuit found it unnecessary to address the issue on the merits; instead, it simply quipped that the answer was not “clear cut.” Agreeing with the nine previous circuits to have considered the issue, the Circuit concluded that suppression was not warranted, because the good‐faith doctrine applies. Again, defendant contended that the good-faith exception did not apply because the warrant was “facially deficient,” as it was limited to the Eastern District of Virginia, but was used outside the district. The Circuit disagreed, finding that a reasonable reader of the warrant would have understood that the warrant authorized searches beyond the boundaries of the district, supporting the officers’ good faith reliance on it.

The Circuit’s decision can be found here.

In United States v. Watkins, in a summary order, the Circuit vacated defendant’s EDNY conviction for conspiracy to commit Hobbs Act robbery and use of a firearm in relation to a crime of violence, before the late Leonard D. Wexler. This decision follows the Supreme Court’s order remanding the case in light of its decision in United States v. Davis, 139 S.Ct. 2319 (2019). On June 24, 2019, in a 5-4 decision, Davis held that 18 USC 924(c)(3)(B), defining what constitutes a crime of violence, was unconstitutionally vague. Because the district court relied on section 924(c)(3)(B) to hold that Watkins used a firearm during the commission of a crime of violence by conspiring to commit Hobbs Act robbery, the Circuit was constrained to vacate his conviction, notwithstanding its prior affirmance.

The Circuit’s decision can be found here.

Appellate Division, Second Department

On Wednesday, in People v. Cianciulli, AD2 affirmed defendant’s Suffolk County conviction for operating a solid waste management facility without a license, but reversed and dismissed his convictions for endangering public health, safety or environment in the third and fourth degrees. AD2 found the evidence insufficient to establish that the defendant was aware of, and consciously disregarded, a substantial and unjustifiable risk that the dumping, screening and processing of the construction and demolition debris would result in the release of hazardous and acutely hazardous substances.

AD2’s decision can be found here.

In People v. Larman, AD2 reversed defendant’s Kings County grand larceny, filing a false instrument, possession of a forged instrument, and bribery charges, finding that the court erroneously replaced a deliberating juror without defendant’s written consent in violation of the New York State constitution.

AD2’s decision can be found here.

Warm regards,

Edward V. Sapone

 

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