Vol. 8, Nos. 51
Covering Cases Published in the Advance Sheets through December 17, 2001

Highlights of this Issue:

Supreme Court Case :

The Post-Sept. 11 View of the Fourth Amendment - Episode No. 1:

Bail Release in Drug Cases:

U.S.S.G. and Sentencing Issues:

Shuffling of Jurors to Ensure a Proper Racial Mix Held Invalid:

Don't forget to visit the "Apprendi Watch" section of our Web site for the most current and comprehensive coverage of that watershed decision on the entire Internet. It now includes links to and summaries of more than 400 published lower-court Apprendi

United States v. Scarfo, Crim. No. 00-404 (D.N.J. 12/26/2001) (Judge Politan)

In a case of first impression, Judge Politan of the D.N.J. ruled that the FBI did not need a wiretap order to attach a keystroke-recording device to a reputed mobster's computer in order to decipher the password needed to gain access to encrypted files thought to contain evidence of criminal activity.

In January, 1999, acting pursuant to Federal search warrants, FBI agents entered the defendants' business offices to search for evidence of suspected illegal gambling and loansharking activities. During their search, they came across a personal computer which contained a number of encrypted files. After failing to gain access to the encrypted files, the agents installed what is known as a "Key Logger System" ("KLS") on the computer. The KLS records every keystroke that an individual enters on the computer's keyboard; and, because the computers were linked to the Internet via a modem, the agents were able to use the KLS to decipher the password and gain access to the files in question when the users went on the Internet over telephone lines.

After the defendants were indicted on various gambling and loansharking charges, they moved both for discovery and to suppress evidence. Their suppression motion was premised on their argument that the KLS violated the Fourth Amendment by collecting more information than was needed and than was covered by the scope of the warrants that had been issued. Their discovery motion was premised on their argument that the KLS violated the Federal wiretap statute, 18 U.S.C. § 2510, by picking up modem transmissions without a wiretap order. Thus they argued that they needed a detailed explanation of the KLS technology to determine whether its use was proper.

Prior to September 11, 2001, Judge Politan expressed concern that the use of the KLS may have violated the wiretap statues; and he ordered the Government to file a report "explaining fully how the KLS device functions and describing the KLS technology and how it works vis-a-vis the computer modem, Internet communications, e-mail and all other uses of a computer." The Government objected, citing the provisions of the Classified Information Procedures Act (18 U.S.C. App. 3) ("CIPA"), and expressed "grave concern" that disclosure of the system's specifics "would jeopardize both ongoing and future domestic criminal investigations and national security interests."

On September 26, 2001, the Court held an "in camera, ex parte hearing" with several high-ranking officials from the U.S. Attorney General's Office and the FBI to review "top-secret, classified information" about how the KLS works. Following that meeting, on October 2, 2001, Judge Politan issued a protective order sealing the transcript of his secret meeting with the FBI, finding that the CIPA applied to this case, and concluding that the use of the KLS did not violate the Federal wiretap laws.

On December 26, 2001, Judge Politan released his formal decision in the case, explaining his ruling (in the form of a letter to all counsel). In his letter, he took pains to appease those who would object to his apparent turnabout by acknowledging that "the courts are indeed the last bastions of freedom in our society and serve to protect the individual liberty rights embedded in our Constitution" and by insisting that his decision was "in consonance with [those] treasured ideals."

In rejecting Scarfo's argument that the denial of more detailed information about the KLS would cripple his defense, Judge Politan wrote that the Government's duty to disclose was not absolute and that the CIPA creates an exception to that obligation.

Judge Politan also ruled that no special wiretap order was needed to use the KLS because it had intercepted no telephonic communications. He based that finding on FBI assurances that it had configured the logger so it would only record keystrokes when the modem was not transmitting (although he failed to explain how the FBI had received the recorded keystroke information it had sought.)

Finally, noting that the search warrants issued in this case were exceptionally specific and detailed, Judge Politan rejected defense counsel's contention that the warrants were, in effect, general search warrants because they collected more data than necessary to crack the password code. He concluded that the fact that the KLS "certainly recorded keystrokes . . . other than the searched-for password [was] of no consequence."

Defense counsel, Norris E. Gelman of Philadelphia, commented "I hope this is not the dawning of a new age where hearings are conducted in secret." He also suggested that the September 11 terrorist attacks had influenced Judge Politan's receptiveness to the Government's national security arguments, particularly since Judge Politan had candidly admitted that his decision "takes on added importance in light of recent events and potential national security implications."

United States v. Nelson, No. 98-1231 (2nd Cir. 1/07/2002) (Judge Calabresi)

In this high-profile case, a divided panel from the Second Circuit ordered a new trial for two black men who had been convicted in Federal court of civil rights violations in the fatal stabbing of a Hasidic Jew during four days of civil rights violence that shook the Crown Heights section of Brooklyn in 1991. The panel ruled that the trial judge (Judge Trager of the E.D.N.Y.), in an attempt to ensure an appropriate racial and religious balance on the jury, had engaged in an improper pretrial shuffling of the jurors that amounted to "racial and religious jurymandering."

In his 109-page decision, Judge Calabresi stated that "[w]hat the court did in its effort to achieve a racially and religiously balanced jury was unquestionably highly unusual. It was also improper." The Court also held that the district court had erred "in empaneling a juror whose answers at voir dire clearly displayed actual bias, and that as a result the jury that convicted the defendants failed both the Sixth Amendment's and Due Process Clause's requirement of impartiality." Finally, the Court held that the defendants' acceptance of the trial court's "jury-packing scheme" did not constitute a valid waiver of the defendants' argument that the inclusion of one biased juror was unconstitutional.

In a partial dissent, Judge Straub said that he joined with the majority "in almost all respects," but added that he did not agree with the majority's decision "to vacate the conviction on the grounds that the District Court failed to excuse a biased juror in order to maintain the jury's racial and religious diversity. . . .I do not believe that vacating the sentence provides a sensible remedy in this case. Instead, I favor the government's recommendation that we affirm the sentence, while noting our willingness to consider the possibility of vacatur in future cases, should they arise."

The Crown Heights riots were triggered when the driver of a station wagon, who was Jewish, struck two black children, killing one. Within hours, Charles Price, one of the two defendants in this case, was recorded on videotape exhorting the crowds to "Get the Jews." A short time later, a mob spotted Yankel Rosenbaum, an Orthodox Jew, walking alone in the area. He was attacked and beaten by the mob; and it was alleged that Lemrick Nelson had stabbed him, causing him to die. Both Mr. Nelson and Mr. Price were tried for murder in state court and they were acquitted.

Federal authorities then charged them with violating Mr. Rosenbaum's civil rights in violation of 18 U.S.C. § 245(b)(2)(B). After a lengthy trial before judge Trager, both men were convicted and they were sentenced to 20 years in prison. They appealed their convictions on a broad array of issues, including constitutional attacks on the validity of § 245(b)(2)(B). Some of the issues were so highly charged that the appeal coalesced a broad range of legal luminaries and, at times, seemed to pit the NAACP against numerous prestigious Jewish organizations.

During the jury selection process, Judge Trager took a number of steps that were later challenged on appeal. For example, after a black man empaneled as a juror had been excused, Judge Trager did not replace him with a white alternate, but instead removed a second, white juror from the panel, and filed the two open spaces with a Jewish juror (who had expressed grave reservations about his ability to be objective) and a black juror.

In condemning those moves, Judge Calabresi wrote: "Although the motives behind the district court's race-and-religion-based jury selection procedures were undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary, that fact cannot justify the district court's race-conscious actions. The significance of a jury in our polity as a body chosen apart from racial and religious manipulations is too great to permit categorization by race or religion even from the best of intentions."

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