Category: Criminal Law and Procedure

Second Circuit Finds Another “Speedy Trial” Violation–the Third Such Violation in Two Years–in the Western District of New York

Case Name: United States v. Black

Date of Opinion: March 18, 2019

Opinion by: Judge ­­­­­Pooler (majority); Judge Cote (dissent)

Summary:

The Second Circuit affirmed the dismissal of charges against two criminal defendants after finding their Sixth Amendment Speedy Trial right had been violated. The Court noted that this decision marks the third time in two years that a criminal defendant’s right to speedy trial was violated in the Western District of New York.

Defendants-appellees were indicted on March 6, 2012, and charged with one count of Hobbs Act conspiracy. On March 7, 2012, prosecutors informed the district court that the case against Defendants might become eligible for capital prosecution. Two years and nine months later, the prosecution filed a superseding indictment that added new charges and accused the Defendants of an entirely new crime. A decision whether to seek the death penalty had not yet been made with regard to the initial crime when the prosecution filed the new charges. On January 13, 2015— two years and ten months after the government informed Defendants that they could potentially face capital prosecution—the government decided that it would not seek the death penalty. It took another two years and ten months before the government brought the Defendants to trial; in sum, Defendants waited sixty-eight months for a trial. The District Court granted Defendants’ pre-trial motion to dismiss based on speedy trial grounds, and the government appealed.

The Second Circuit affirmed the District Court’s dismissal of the charges based on finding a significant portion of the delays attributable to the government. Specifically, it attributed delays to the government based on its delayed decision to seek the death penalty, protracted litigation over missing evidence, its decision to file the superseding indictment on the eve of expiration of the state of limitations, and the government’s failure to produce witnesses at court hearings. Overall, it found Defendants had “endured an extraordinary sixty-eight-month delay, suffered anxiety occasioned by the government’s nearly three-year deliberation over whether to argue that they should be sentenced to death, and repeatedly requested a speedy trial.”

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Second Circuit Rules in Favor of Prisoner’s Habeas Corpus Petition, Holding that Confrontation Clause Was Violated During his Murder Trial

Case Name: Orlando v. Nassau Cty. Dist. Atty’s Off.

Date of Opinion: February 11, 2019

Opinion by: Judge Droney (majority); Judge Shea (dissent)

Summary: 

In December 2004, a man named Bobby Calabrese was shot and found dead in Long Beach, New York. The following week, Nassau County police detectives interviewed Mark Orlando and Herva Jeannot, who officers believed had been with Calabrese that night. The two men were questioned in separate rooms at the police station. Jeannot confessed to shooting Calabrese and stated that Orlando had hired Jeannot to murder Calabrese in order to avoid paying a gambling debt to Calabrese.  During his questioning, Orlando gave two different statements to the police–one before being told that Jeannot had incriminated him, and one after being so informed–but he consistently denied being involved in the murder.  Orlando and Jeannot were later both charged with murder for their involvement in Calabrese’s death, and the two men were tried separately.

At Orlando’s trial, Detective McGinn testified for the prosecution and recounted Jeannot’s confession about Orlando’s involvement in the murder. Defendant’s counsel objected on hearsay and Confrontation Clause grounds, but the trial judge allowed the testimony, stating that the testimony was not being offered for the truth of the contents of the statement, but rather to give a clear picture to the jury of what was going on during the interrogation of Orlando. The trial court gave the jury a limiting instruction to use McGinn’s testimony only when considering the circumstances under which Orlando may have made statements and for no other purposes. The trial court also instructed the jury to completely disregard any statement allegedly made by Jeannot when considering evidence against Orlando. McGinn then resumed testifying and stated that after Orlando learned of Jeannot’s confession, Orlando changed his account of the events that night. The jury ultimately convicted Orlando of murder in the second degree, and Orlando was then sentenced to twenty-five years to life in prison. Jeannot was also convicted of the murder in a separate trial.

In 2009, Orlando appealed his conviction to the New York Supreme Court, Appellate Division. Orlando argued that Detective McGinn’s testimony as to Jeannot’s statement had been inadmissible hearsay and also violated Orlando’s Sixth Amendment right to confront witnesses through cross examination, since Jeannot did not testify at his trial. The Appellate Division rejected this argument and found that the trial court properly instructed the jury to use the testimony for the limited purpose of explaining the detective’s actions and their effect on Orlando, and not for the truth of Jeannot’s statement. The New York Court of Appeals denied Orlando’s leave to appeal.

Orlando then filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. The district court denied the petition, and Orlando appealed.

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Second Circuit Holds That Wrongfully-Convicted Man’s Case Against NYPD Officers and NYC Can Go Forward

Case Name: Bellamy v. City of New York, et al.

Date of Opinion: January 29, 2019

Opinion by: Judge Walker (majority); Judge Jacobs (dissent)

Summary:

In May 1994, Kareem Bellamy was arrested and charged with the murder of James Abbott, a man who was fatally stabbed near a phone booth outside of a C-Town Supermarket in Far Rockaway, Queens, New York. A grand jury indicted him, and Bellamy was ultimately convicted of murder in the second degree under N.Y. Penal Law § 125.25(2) (depraved indifference murder) and criminal possession of a weapon in the fourth degree under N.Y. Penal Law § 265.01(2) following a full trial in November 1995. He was sentenced to 25 years-to-life in prison. The state appellate court affirmed Bellamy’s conviction, and he was denied leave to appeal to the New York Court of Appeals.

In 2007, Bellamy filed a motion to vacate the final judgment on the grounds that new evidence had been discovered which proved his innocence. The new evidence cited by Bellamy included the confession of another individual to the murder and the recanting of a key witness who claimed to have been pressured to testify by Detective John Gillen of the New York City Police Department (“NYPD”). After lengthy post-conviction hearings pertaining to the validity of the evidence and credibility of key witnesses, the court ordered vacatur of Bellamy’s judgment and his release from prison. The Second Department affirmed, leave to appeal to the Court of Appeals was denied, and Bellamy was released from prison. By the time he was released, Bellamy had spent over 14 years in New York state prison.

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Second Circuit Upholds Securities Fraud Indictment and Conviction Despite a Senior FBI Official’s Extensive Leaks to the Press During the Investigation

Case Name: United States v. Walters

Date of Opinion: December 4, 2018

Opinion By: Judge Chin

Summary:

In April 2017, defendant-appellant William T. Walters, a professional gambler, was convicted of securities fraud and related crimes following a jury trial in the United States District Court for the Southern District of New York.  Walters was sentenced to 60 months imprisonment and a fine of $10, and was ordered to forfeit $25,352,490 and pay restitution of $8,890,969.33.  On appeal to the Second Circuit, Walters argued that his indictment should be dismissed because a Federal Bureau of Investigation (FBI) Special Agent’s repeated leaks about the investigation to The Wall Street Journal (WSJ) and The New York Times (NYT) violated the grand jury secrecy provision of Federal Rule of Criminal Procedure 6(e) and the Fifth Amendment’s Due Process Clause. Walters also challenged the district court’s orders on forfeiture and restitution.

The FBI and United States Attorney’s Office (USAO) began investigating Walters for suspicious trading activities in 2011.  FBI Special Agent Chaves served as the supervising agent for the FBI’s investigation.  In 2013, following a referral by the Financial Industry Regulatory Authority (FINRA), the investigation expanded to Walters’s and others’ trading related to a Dallas Company, Dean Foods, and Walters’s close relationship with Thomas Davis, a member of the Dean Foods Board of Directors.  Beginning a year later, in mid-2014, the WSJ and NYT published a series articles revealing confidential and highly detailed information about the ongoing insider trading investigation of Walters, including that Walters may have received tips from an insider about Dean Foods. One WSJ article published in August 2015 named Davis as a target of the investigation.  In early 2016, Davis agreed to cooperate with the government.  That May, following the presentation of evidence including Davis’s testimony, the grand jury issued a multi-count indictment against Walters for securities fraud and related charges related to insider trading in Dean Foods and a second company.

Late in 2016, the district court granted Walters’s motion for an evidentiary hearing on whether the news leaks constituted a violation of FRCP 6(e), but shortly before the scheduled hearing, the government acknowledged a likely FRCP 6(e) violation, informing the court that it had learned that Agent Chaves was the source of the confidential leaks to reporters.  The government noted that Chaves had been referred to appropriate authorities within the FBI and USAO for investigation for his professional misconduct and the district court cancelled the hearing. Walters then moved to dismiss the indictment on the basis that he was prejudiced by the leaks and, in the alternative, that they constituted “’systematic and pervasive’ prosecutorial misconduct . . .  and a violation of the Due Process Clause.” The district court denied that motion.  Following a three-week jury trial, Walters was convicted on all counts in April 2017.  Walters’s motion for a new trial was denied and he appealed.  His appeal renewed the arguments raised in his prior motions to dismiss the indictment. Continue reading