Posts Tagged ‘Narcotics’

Myth #2: Cops Can’t Lie

Friday, June 18th, 2010

For as long as we can remember, the word on the street has always been that cops cannot lie.  So if you’re doing a drug deal with an undercover cop, and you ask him point blank if he’s a police officer, then he has to tell you the truth.  He might try to technically get out of it by saying yes in a sarcastic tone of voice, but he has to be able to testify later on that he did say he was a cop.

And for as long as we can remember, we thought that was dumber than dirt.  The first time we heard this, back in our dim and distant teens, we imagined something like this:

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It just made no sense.  And, of course, it’s simply not true.  No undercover cop is ever going to jeopardize his investigation or his safety by admitting to the fact that he (or she) is a cop.  And there is no rule anywhere that says they have to.

But even so, this myth has persisted.  We can’t count how many cases we’ve dealt with where (more…)

Supreme Court Smackdown

Monday, January 25th, 2010

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“Why is this case here, except as an opportunity to upset Melendez-Diaz?”

So wondered Justice Scalia during oral argument a couple weeks back in the case of Briscoe v. Virginia. For some background, see our previous post on this case here. Briefly, the Supreme Court held last year in Melendez-Diaz v. Massachusetts that, in a drug case, the prosecution cannot prove the existence of a controlled substance by merely introducing the lab report — the chemist has to testify, or else the Confrontation Clause is violated. There was a huge outcry from prosecutors’ offices across the country. It would be too much of a burden to get chemists to testify at every drug trial. There was a concerted effort to get around this new ruling, or better yet to get the Supremes to reverse themselves.

So in Briscoe, Virginia tried to get around the rule by saying the prosecution only needs to introduce a lab report, and if the defense wants to confront the chemist then the defense can subpoena the chemist as a witness.

More than half the state attorneys-general filed an amicus brief, arguing that the expense and administrative burden of getting chemists to testify at trial would just be (more…)

WTF Feds? Buying Drugs ≠ Facilitating Their Sale

Tuesday, May 26th, 2009

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Not again. It looks like yet another instance of federal prosecutors exercising terrible judgment.

Writing for a unanimous Supreme Court this morning, soon-to-retire Justice Souter clarified what “facilitation” means in criminal law. A buyer calling up a drug dealer to arrange the purchase of some drugs does not count. Apparently, the feds didn’t get the memo.

In this case, Abuelhawa v. U.S., Mohammed Said was a suspected drug dealer whose phone was wiretapped. The wire intercepted six calls from a buyer, Salman Abuelhawa, in which Mr. Abuelhawa arranged two small purchases of cocaine.

The amounts Mr. Abuelhawa bought were strictly misdemeanor level — just one gram each time. But in a bizarre move, the feds charged him with six felony counts of “causing or facilitating” the sales during those intercepted phone calls.

After recovering from the “you’ve gotta be kidding me” stage, Abuelhawa moved to dismiss those charges. But no, the District Court (the Eastern District of Virginia, in Alexandria) said it was perfectly proper to charge a buyer with facilitation of the sale. He was convicted, and appealed to the Fourth Circuit.

The Fourth Circuit also ruled that it’s fine to charge a buyer with facilitation, saying that the word “facilitate” should be given its common meaning, “to make easier or less difficult, or to assist or aid.” Abuelhawa’s request to buy “made the sale possible,” and therefore counted as facilitation.

Ably represented by Joseph McEvoy, of the excellent Virginia law firm of Odin, Feldman & Pittleman, the defendant took it to the Supreme Court.

Writing for the majority, Justice Souter essentially opined “you’ve gotta be kidding me” — only in more genteel language. The government’s overly literal use of “facilitate” he described as sitting “uncomfortably with common usage.”

Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the conduct of the other. A buyer does not just make a sale easier; he makes the sale possible. No buyer, no sale; the buyer’s part is already implied by the term “sale,” and the word “facilitate” adds nothing. We would not say that the borrower facilitates the bank loan.

The feds argued that the facilitation wasn’t the request to buy, but rather the use of a cell phone to do so. A sale can happen without using a cell phone. Using a cell phone makes it easier to sell drugs. So therefore “Congress probably meant to ratchet up the culpability of the buyer who calls ahead.”

Souter respectfully pointed out that this argument was stupid. Congress made it a misdemeanor to buy the drugs. It meant for Abuelhawa to be charged with a misdemeanor. It did not mean him to be charged with facilitating the dealer’s felony.

* * * * *

We prosecuted drug dealers for years here in Manhattan, and we have to wonder what these Virginia feds were smoking. No prosecutor in their right mind would seriously consider charging a buyer with facilitation. A lookout is a facilitator. A steerer who directs buyers to a particular dealer is a facilitator. A “stash man” or a “money man” who holds stuff for the seller is a facilitator. The buyer is never a facilitator.

When, as here, a hyper-technical reading of the statute might conceivably result in a charge that nobody intended, a good prosecutor simply smiles wryly at the inept wording of statutes in general. But to actually file such charges would require a shocking lack of judgment.

Judgment. It’s something we require of our prosecutors. They have people’s lives, liberty and reputations at stake. They have victims who need justice. They work within a system that relies on them to do the right thing. So it is imperative that they have the uncommon sense to do, not what is technically allowable, but what is actually appropriate.

Not every prosecutor lives up to the challenge, of course. But lately the feds have been showing a remarkable lack of judgment. This case is just one of many in recent years where federal prosecutors have committed forehead-smacking acts of WTF.

So we have to ask… WTF? Seriously. Federal prosecutors have a well-deserved reputation for being bright, dedicated, hard-working and sensible. But in case after case lately, federal prosecutors have made colossal boners of bad judgment. What’s going on? Did we change how we hire people? Did the pool of applicants change? Did the internal culture change? We’d like to know.

Send us your thoughts, and we’ll see about devoting a column to the more thoughtful responses.

Sierra Leone Takes Historic Step Towards Rule of Law

Thursday, April 23rd, 2009

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Although the nation of Sierra Leone has had an extradition treaty with the United States in effect since 1935, the African country has never complied with a single request for extradition. Until yesterday, that is.

Its government never complied with such requests, one might argue, because there really was no government to speak of. The country descended into failed-statehood shortly after becoming independent in 1961, with an almost totally non-functioning government. It was one of those unfortunate countries where, if you had to call someone in charge, nobody was going to pick up (embassy types would joke that it was because the officials were hiding under their desks from all the bullets flying around). During Liberia’s horrifying civil war in the 1990s, its warlord Charles Taylor took advantage of Sierra Leone’s instability to found a rebel group (funded with Sierra Leone diamonds, and manned with conscripted children) to launch a civil war in Sierra Leone. The corrupt government, which had no real resources due to a resultingly nonexistent economy, couldn’t do much to fight back. A brutal civil war ensued that raged throughout the 90s. A large Nigerian-led UN force finally intervened and restored peace, finally disarming the rebels in 2004.

Following the successful UN intervention, Sierra Leone has started to adopt the rule of law. Leaders of both sides of the war were subjected to UN war crimes tribunals. Democratic elections were held in 2007, and when no presidential candidate won a majority, rather than devolve into violence, the country simply held a runoff election. Important laws protecting public order have since been passed, and enforced.

So yesterday’s extradition is an important step in Sierra Leone’s process of joining the successful nations of the world, by complying with its treaty obligations under international law.

The case began in July of last year, when a cargo plane made an emergency landing at Lungui. The plane was found to contain military weapons and ammunition, as well as more than 600 kilos of cocaine.

Sierra Leone charged 15 people with importing cocaine, pursuant to the National Drug Ace of 2008, and related charges. The new criminal justice procedures were followed, resulting in a trial that ended on Tuesday. After the lengthy trial, Justice Mark Brown sentenced most of the defendants to 5-year jail terms and fines of $1 million.

Three of the defendants, Geraldo Quintana-Perez, Harvey Steven Perez and Alex Romero, were then immediately handed over to FBI agents at the Lungui airport, pursuant to the extradition treaty. All three were wanted in the United States on separate drug-related charges.

Quintana-Perez and Perez are to be arraigned today in the Southern District of New York. The SDNY’s acting U.S Attorney, Lev Dassin, remarked in a press release that “this is the first transfer of defendants from Sierra Leone. We hope that the transfer of these defendants to American custody marks the beginning of a strong partnership between the United States and Sierra Leone in combating the international drug trade, which poses a serious threat to both countries.” DEA acting Administrator Michele Leonhart added that “history is made today.”

The Minister of Information and Communication for Sierra Leone, Ibrahim ben Kargbo, stated that the prison sentences handed down by the Sierra Leone court will be respected by the United States, and that the jail terms for these three defendants will be served in U.S. prisons.

This truly is an important step in Sierra Leone’s journey towards modern statehood, with its government being beholden not only to its own laws, but also to its obligations under international law. The rule of law is perhaps the single most important requirement for a country to succeed, for its economy to prosper, and for its citizens to be protected. Without the certainty that the government will abide by the rules, that agreements will be enforced, and that rights will be protected, a country cannot thrive. Some other countries would do well to watch Sierra Leone’s rapid progress.

2009 New York Drug Sentencing Guide

Wednesday, April 15th, 2009

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2009 New York Drug Sentencing Guide

What with all the drug law reforms happening in New York, we thought we’d put together a quick-and-easy guide to what they mean. Click here to view it in PDF form.

We used to do this all the time back when we were prosecuting cases with Special Narcotics. New York laws are so (unnecessarily) byzantine that a single chart really became necessary to figure out what they mean. We were often gratified to see nth-generation photocopies of our drug-law charts on various judges’ benches, and they were certainly popular in the office.

Standard warnings apply, of course: this is only a guide, and is not meant to be a substitute for legal research. And like everything else on this blog, it neither provides legal advice nor implies or creates an attorney-client relationship.

Gang Crime Rising, So More… White-Collar Prosecutions?

Tuesday, February 3rd, 2009

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Gang crime is on the rise, the FBI reports. The politicians and prosecutors, however, are focusing on white-collar crime these days. Here’s a look at why this is happening.

Gang crime seems to have increased, ironically, as a result of improved anti-gang law enforcement in the big cities.

According to the 2009 National Gang Threat Assessment, street gangs have started expanding more rapidly from urban centers into suburban and rural areas. This has spurred new membership, as fresh populations are opened to gang recruitment. By the end of last year, about a million people were estimated to belong to gangs within the U.S.

One might think that the burbs lack the same social pressures that drive gang membership. Gangs are products of the inner cities, after all, where kids lack fathers to lead them, involved communities to belong to, competent schools to teach them, and opportunities for money and glory. We expect gangs to arise in the inner cities of single moms, apathetic neighbors, dysfunctional schools, government welfare and hopelessness. Suburbia’s not like that, right?

Well, according to the NGTA, drugs drove the expansion. During the 1980s, the suburbs began to become a profitable new market for drug dealers who had previously focused on the urban market. During the 1990s, the huge profits from suburban drug sales caused the street gangs to physically expand their territory, often resulting in violence as urban gangs clashed with local toughs and with each other in the race to occupy the burbs.

Meanwhile, law enforcement started cracking down on gang and drug crime in the cities. It was getting dangerous to operate in NYC, LA and Chicago. Suburban cops, however, just weren’t as much of a concern. The burbs were also seen as safe places to hide from unsuspecting law enforcement, unused to dealing with a gang element.

The combination of weaker opposition from law enforcement, and higher profits from suburban drug users paying “white boy prices,” was a clarion call for gang expansion. It was an irony that improved law enforcement actually resulted in the spread of gang-related crime.

There were other reasons for the spread of gangs into suburban and rural communities, not detailed by the NGTA report. From the author’s own interviews with drug traffickers in the New York area, gangs sometimes followed inner-city populations that had moved out there first. People on government assistance began moving out to places such as Lancaster, Pennsylvania and various towns Upstate along the Hudson River, because a person on welfare could have a nicer quality of life there. Many of them brought with them the quality of life that they were trying to avoid, unfortunately. And those who were drug users brought their demand with them. And so the dealers followed, the gangs followed, and the forces that spurred gang recruitment never went away.

Despite the spread of violent crime and drug trafficking, however, the FBI is focusing more on white collar crime. White collar crimes certainly are on the rise lately, especially fraud cases.

“We may not be doing as many drug enterprise operations,” Special Agent in Charge Richard Lambert recently said, “so we can focus more on mortgage fraud and corporate fraud problems.”

In just the past month or so, 3000 new FBI positions have been created to combat white collar crime. On top of those new hires, the Senate Banking Committee is preparing a $110 million fund that would hire 500 new FBI agents, 50 new AUSAs, and 100 new SEC agents.

Bill co-sponsor Chuck Schumer (D-NY) stated in the accompanying press release that “our white collar crime divisions are under-staffed, under-funded, and overwhelmed. When a wave of violent crime sweeps through a city, the immediate response is to beef up the police forces, putting more cops on the beat, extending overtime, and making sure the city returns to safety. Our reaction to the financial crisis and the massive and complex financial fraud investigations that loom should be no different.”

Why the rise in white collar cases? It’s not just the economy, stupid.

Sure, people may be tempted to commit crimes in an economic downturn. But this usually applies to people who are on the bottom rungs of the economy. Wall Street types and CEOs don’t start robbing banks just because their net worth slipped a bit.

Instead, white collar crime goes on all the time. What’s changing now is not the number of crimes being committed, as the number of cases being prosecuted. There’s a difference. As Anne van Heerden, head of forensics at KPMG Switzerland told Swissinfo, “I do not believe that the number of cases is growing, but rather the detection rate is increasing.”

Sophisticated financial crimes have always been sexy for law enforcement. What prosecutor didn’t want to convict the next Ivan Boesky, Andy Fastow or Michael Milken? The problem is, they’re hard to catch. The crimes take place on paper, in back rooms, and on golf courses. Not places frequented by cops or detectives. Evidence is often hard to find, and even harder to comprehend if found.

But the new economic downturn — which many see as the direct result of white collar crime — has led to new political pressure to “do something about it.” (At a function last week, we joked with a prominent judge that our white-collar defense practice was recession-proof, to which the judge responded “yes, but your clients caused the recession.”) Elected officials feel that pressure to “do something,” and they start rewarding successful prosecutions, and funding more of them.

So the word has come down from above that white-collar prosecutions are what the chiefs want. And that’s what they’re getting.

Expect to see more.