Vol. 10, No. 17
Covering Cases Published in the Advance Sheets through April 28, 2003

Note: The full text of all of the decisions noted below has been incorporated in our on-line data base which is available for subscribers only. Thus, while the names of some of the cases are highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Highlights of this Issue:

Supreme Court

Joint Defense Agreements

Murder Conviction Overturned to Prevent Manifest Injustice

Safety Valve Sentence Reductions


We Welcome the Members of The New York Council of Defense Lawyers

The Publishers and Editors of Punch and Jurists are proud and honored to welcome the entire membership of the New York Council of Defense Lawyers (NYCDL) as subscribers to its criminal justice resources on the Internet. Henceforth, by logging in to the NYCDL’s Web site at www.nycdl.org, all of the Members of the NYCDL will have full access to P&J’s legal research centers on the Internet at fedcrimlaw.com and www.ussguide.com.


U.S. v. Stepney, 246 F.Supp.2d 1069 (N.D.Cal. 2003) (Judge Patel)

The nearly 30 defendants in this case were charged, in a series of three indictments, with over 70 substantive felony counts, relating to their alleged participation in a criminal enterprise street gang. As part of the pre-trial discovery, defense counsel received more than 20,000 pages of police reports, FBI memos, and other law enforcement materials. In an effort to prepare coherent defenses efficiently, various defense counsel sought to enter into joint defense agreements that would allow the defendants to share factual investigations.

Joint defense agreements, which enable multiple parties to share information protected by the attorney-client privilege without waiving the privilege, have long been recognized under the law as appropriate and necessary to the function of providing adequate legal advice where the parties have common interests in defending against a pending or anticipated proceeding. As Judge Patel explained:

“[J]oint defense agreements impose an ethical duty of confidentiality on participating attorneys, presenting the potential for conflicts of interest that might lead to the withdrawal or disqualification of a defense attorney late in the proceedings or the reversal of conviction on appeal. . . . When a party to a joint defense agreement decides to cooperate with the government, the potential for disclosure of confidential information also threatens other defendants' Sixth Amendment rights.” (Id., 1077).

In general, joint defense agreements are viewed with suspicion by prosecutors for a number of reasons, including that they are seen as opportunities for the defendants to get together and shape testimony and that they are viewed as an expansion of the attorney-client privilege which is “an evidentiary rule designed to prevent the forced disclosure in a judicial proceeding of certain confidential communications between a client and a lawyer.” (Id., at 1073).

In the instant case, Judge Patel had previously ordered that any joint defense agreements be committed to writing and provided to the court for in camera review prior to their implementation, “out of concern for the Sixth Amendment rights of the defendants and the integrity of the proceedings.” (Id., at 1072). Pursuant to that order, defense counsel submitted two proposed joint defense agreements for review. One agreement discussed the duties of confidentially and loyalty each attorney who signed it would owe to each defendant who signed. The other addressed the confidential sharing of legal research and discovery analysis among defendants' lawyers.

As a threshold issue, the defendants objected to the Court’s inquiries into the joint defense agreements prior to any controversy arising that would require such disclosure. The Court rejected those objections, stating that it “unquestionably” had the right, under its broad supervisory powers, “to require disclosure of the precise nature of a criminal defendant’s representation to insure that no conflict of interest exists that would deprive a defendant of his Sixth Amendment right to effective assistance of counsel.” (Id., at 1077).

After a detailed review of the facts, Judge Patel concluded that the potential for conflicts of interest were particularly acute in this case because of the likelihood of future conflicts caused by the large number of defendants, the variety of charges and degrees of culpability, the fact that a number of defendants had already pled guilty, and the potential for cooperating with the government.

Ultimately, Judge Patel set forth a series of rulings limiting some of the provisions of the proposed joint defense agreements. She ordered that each joint defense agreement “must explicitly state that is does not create an attorney-client relationship between an attorney and any defendant other than the client of that attorney.” (Id., at 1086)

She ordered that each joint defense agreement “must contain provisions conditionally waiving confidentially by providing that a signatory attorney cross-examining any defendant who testifies at any proceeding, whether under a grant of immunity or otherwise, may use any material or other information contributed by such client during the joint defense.” (Id.)

Finally, she ordered that each joint defense agreement “must explicitly allow withdrawal upon notice to the other defendants.” (Id.)

In her decision, Judge Patel examined the origins, the evolution and many of the more critical issues relating to joint defense agreements and the joint defense privilege; and she presented a timely and comprehensive review of the state of the law on those issues. Because of the scope and thoroughness of her decision, her ruling is certain to serve as a guidepost to other courts called upon to deal with joint defense agreements.

While Judge Patel’s decision is filled with references to numerous scholarly commentaries and law review articles on both joint defense agreements and the joint defense privilege, for those interested in those topics we have posted on our Web site an excellent and relevant study entitled “The Erosion of the Attorney-Client Privilege and Work Product Doctrine in Federal Criminal Investigations,” published by the American College of Trial Lawyers, March 2002.)


U.S. v. Robinson, No. 01-CR-131 (LEK) (N.D.N.Y. 05/14/03) (Judge Kahn)

This is an interesting decision in which Judge Kahn took the rare step of reversing a jury’s Federal murder conviction on the grounds that judicial intervention “was necessary to prevent manifest injustice.”

The defendant, Steven Robinson and six co-defendants, including two of his brothers, were charged with engaging in a large-scale marijuana distribution operation in Albany in the 1990's. All of his co-defendants pled guilty to various drug charges; but Robinson went to trial, in part because he was also charged with murder under the provisions of 18 U.S.C. 924(j). The jury convicted Robinson on all the counts against him after a 15-day trial.

At the conclusion of the trial, Robinson moved for a judgment of acquittal, pursuant to Rule 29(c) of the Fed.R.Crim.P. or, in the alternative, a mew trial pursuant to Rule 33, on the grounds that the evidence against him was insufficient to convict him on any of the counts.

As a preliminary matter, the Court addressed the different burdens of proof under Rules 29 and 33. It noted that the standards for granting a Rule 29 motion for a judgment of acquittal are far more restrictive than those that apply to a Rule 33 motion for a new trial. Under Rule 29, a court “may not ‘substitute its own determination of the weight of the evidence and the reasonable inferences to be drawn for that of the jury’.” Thus, a Rule 29 motion may be granted “only if the evidence that the defendant committed the crime alleged is ‘nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt’.” (Internal citations omitted.)

Conversely, Rule 33 specifically states that the court “may vacate any judgment and grant a new trial if the interest of justice so requires.” When considering a Rule 33 motion, “the court may weigh the evidence and the credibility of the witnesses.”

In this case, only one witness, a man named Auckland Dubery, offered any testimony identifying Robinson as the driver of the car that was used in the drive-by shooting. However, Judge Kahn discounted Dubery’s testimony for a number of reasons. First, he concluded that it was “highly likely that Dubery was under the influence of marijuana at the time [the victim] was killed.” Second, when Dubery was initially questioned, he told the police he did not know who the shooter was. “He changed his story and identified Robinson as the shooter only after his girlfriend, Rachel, discussed the potential benefits that Dubery could receive in exchange for his identification of the shooter.”

Finally, the Court noted that Dubery had considerable motive to provide false testimony since state drug charges were pending against him. While those charged were not dropped, Dubery, his girlfriend and her child were enrolled in the witness protection program, through which they received medical benefits and cash.

Commenting on those factors, Judge Kahn stated: Tens of thousands of dollars were spent by the government on behalf of Dubery because he identified Robinson as the shooter. Dubery’s dubious testimony is exceedingly weak support for the jury’s finding of guilt.”

Judge Kahn said that he was “well aware that prosecutors are often forced to rely on unsavory witnesses to prove their cases”; that such witnesses “are often drug addicts or convicted criminals”; and that such witnesses “expect the Government to provide some benefit in return for their cooperation.” However, he said, that “state of affairs” could be countenanced only “so long as the testimony does not lead to a wrongful conviction.”

Then, without mincing words, Judge Kahn wrote: “The evidence that Robinson killed Jerome Johnson was far too flimsy to support a conviction. Our criminal justice system is rooted in the principle that a defendant, presumed innocent, shall not lose his liberty unless his guilt is proved beyond a reasonable doubt. Guided by this polestar, the Court is compelled to grant Robinson's motion for a new trial on the charges relating to the October 11 shooting.”


In Brief

Aliens: Manjiyani v. I.N.S., 324 F.3d 1138, 1143 (9th Cir. 2003) - As explained by Judge Fletcher in her dissent, the majority in this case adopted “a rule that permits the INS to deport an alien in absentia when the agency, in full knowledge of the alien’s current address, had failed to mail notice to the alien of the deportation proceedings. Due process does not permit such a result.”

Child Pornography: U.S. v. McCoy, 323 F.3d 1114 (9th Cir. 2003) - Here swarms of agents from at least three different law enforcement agencies stormed into the home of the defendant, seized numerous items from her home and arrested her on charges of possession of child pornography, after photo shop employees discovered on a roll of film a single picture of the defendant-mother and her infant daughter in the nude. In the end, a divided court dismissed the charges on the grounds that the application of the child pornography statute at issue (18 U.S.C. § 2252(2)(4)(B)) is unconstitutional as applied to simple intrastate possession of visual depictions that have not been mailed or transported in interstate commerce and that are not intended for any commercial or economic use.

Death Penalty Cases: U.S. v. Matthews, 246 F.Supp.2d 137 (N.D.N.Y. 2002) - Stating that due process only protects matters of “fundamental fairness,” Judge McAvoy of the N.D.N.Y rejected a series of constitutional challenges to the Federal death penalty statutes (21 U.S.C. § 848 and 18 U.S.C. § 3591, et. seq.); U.S. v. Denis, 246 F.Supp.2d 1250, 1253 (S.D.Fla. 2002) - Taking sharp issue with Judge Rakoff’s landmark decision in U.S. v. Quinones, 205 F.Supp.2d 256 (S.D.N.Y. 2002), Judge Moreno of the S.D.Fla. concluded that the “federal experience with death penalty cases does not support an argument that the federal court system is likely to convict the truly innocent.”

Supervised Release - Special Conditions: U.S. v. Fields, 324 F.3d 1025 (8th Cir. 2003) - Here the Court affirmed as reasonable, not overly vague and not unduly restrictive, a special condition of supervised release that prohibited the defendant (who was convicted of child pornography) from “owning or operating any photographic equipment including . . . computers, scanners, and printers.”


More on Unpublished Decisions

We note two recent events that are relevant to the ongoing debate about unpublished decisions. First, on May 15, 2003, the Advisory Committee on Appellate Rules approved, by a vote of 7-1, a proposed rule that will allow any judicial disposition -- whether published or unpublished, precedential or non-precedential -- to be cited in proceedings pending before any Federal appellate court. While the proposed amendment is still far from being enacted into law (for example, it must now be published to allow for public comment - a process that typically takes at least six months), the proposal does indicate that some people are serious about finally making a change in the rule that exists in many Circuits which prohibits the citation of any of the mass of unpublished decisions - no matter how much on-point they may be.

Second, the Ninth Circuit recently “withdrew” a recent controversial decision entitled U.S. v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2003) (P&J, 02/10/03). In that case, over the strong dissent of Judge Kozinski, the panel rejected a claim that the defendant’s due process and compulsory process rights had been violated because the Government secretly deported 9 of 12 friendly alien-witnesses before his counsel had a chance to interview them. That ruling evoked ridicule, dismay and astonishment from Judge Kozinski, who bluntly asked:

“Should the government be able to avoid its Brady obligation by destroying exculpatory evidence before the defendant knows it exists? . . . Can the government free itself of the obligation of fundamental fairness and candor -- and empower itself to destroy exculpatory evidence and conceal exculpatory witnesses -- by getting a signed waiver from a poorly educated defendant who has no understanding of what he is giving up?” (Id., at 1163).

Those embarrassing questions must have upset someone - because the Ninth Circuit took the unusual step of “withdrawing” the panel’s decision - a procedure that has the effect of converting the ruling to “unpublished” status, which means that, under Ninth Circuit Rule 36-3(b), it can no longer cited. Since the Court gave no reason for its action, we will not speculate why the Court felt it necessary to take this action. However, unpublished or not, the panel’s original decision cannot be purged from our memories; and, for that reason, the full original decision will remain available on our Web site. It is worth reading -- perhaps even more so now!

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

60

768

17,276

District Courts

23

450

   9,388


Copyright © 2003 Punch and Jurists, Ltd.