DEFENSE LINK MONTHLY NEWSLETTER FOR CJA PANEL ATTORNEYS LEIGH M. SKIPPER, CHIEF FEDERAL DEFENDER APRIL 2015 INSIDE THIS ISSUE

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1 DEFENSE LINK MONTHLY NEWSLETTER FOR CJA PANEL ATTORNEYS LEIGH M. SKIPPER, CHIEF FEDERAL DEFENDER APRIL 2015 INSIDE THIS ISSUE FBI Mishandles Evidence Page 1 Recent Third Circuit and Supreme Court Cases Page 3 The 24 th Annual Maureen Kearney Rowley CJA Panel Training Seminar On Friday, May 1, 2015, the Federal Community Defender Office and the United States District Court for the EDPA will host The 24 th Annual Maureen Kearney Rowley CJA Panel Training Seminar for CJA Panel members, Federal Defenders, and other federal criminal defense practitioners. FBI Tells Prosecutors That Bureau s Mishandling of Evidence May Require Disclosure to Defendants by Leslie H. Jones-Collins, Paralegal, Trial Unit Beset by problems is how an internal investigation report characterized the FBI s evidence collection and retention system. As a result, the FBI is alerting prosecutors around the country to inform defense teams of errors in evidence handling, as reported by the New York Times last December in an article titled, F.B.I. Evidence is Often Mishandled, an Internal Inquiry Finds. The agency was concerned that failure to do so could lead to evidence being inadmissible or acquittals, since lawyers can use even minor record-keeping discrepancies to get evidence thrown out of court. According to the report obtained by the New York Times, most of the mistakes appeared to stem from the FBI s transition from a paper-based case system to the Sentinel computer system in FBI chief spokesman Michael Kortan stated, The FBI identified issues primarily related to the migration of its earlier record-keeping process to its updated case management system. The Bureau believed that Sentinel would streamline investigations and make it easier for analysts and agents to link cases with similar information through expanded search capabilities. To ensure proper registration, please submit registration form and fee in advance to Jennifer Nimmons Herman. FBI MISHANDLES EVIDENCE CONTINUED ON PAGE 2 Editors Jennifer Nimmons Herman Attorney Advisor Kimberly Campoli Paralegal/Panel Administrator Federal Community Defender Office for the Eastern District of PA Helen Marino, First Assistant Federal Defender Nina Carpiniello Spizer, Chief, Trial Unit Elizabeth Toplin, Assistant Chief, Trial Unit Brett Sweitzer, Chief of Appeals

2 APRIL 2015 PAGE 2 However, with respect to more serious errors, such as those involving the disappearance of evidence, auditors wrote that a majority of the errors identified were due, in large part, to human error, attributable to a lack of training and program management oversight. The New York Times reports that based on a review of more than 41,000 pieces of evidence scrutinized by auditors, there were errors with almost half of them. The mistakes identified ranged from computer glitches to 1,600 pieces of evidence being removed from storage and not returned for several months by agents. In fact, in one case involving drugs, the evidence had been signed out for more than a decade. Beyond evidence being mishandled and mislabeled, or going missing, the internal audit also found that FBI evidence lockers contained less money and valuables than documented. The Bureau also had two tons of drugs that weren t reflected in its records. Indeed, audit results from Newark, Honolulu, Milwaukee, Washington and Richmond, Virginia, revealed that more than 70 percent of the firearms in evidence in those offices had been mishandled. Given the importance of FBI evidence in criminal investigations, as well the potential complications the findings of the probe might have on future prosecutions, the agency s chief spokesperson said the FBI would start strengthening procedures in field offices across the country to improve administrative consistency and record-keeping, as a consequence of the internal inquiry. Practitioners should keep this New York Times article in mind when facing evidence challenges. To read, F.B.I. Evidence is Often Mishandled, and Internal Inquiry Finds, in full, click link

3 APRIL 2015 PAGE 3 Recent Third Circuit and Supreme Court Cases Christofer Bates, RWA, EDPA Supreme Court Sarbanes-Oxley Act / Destruction of Tangible Object to Obstruct a Federal Investigation Yates v. United States, 135 S. Ct (2015). Jeffrey M. Lindy, Esquire CJA Panel Representative Eastern District of PA Please contact Jeff Lindy with any CJA issues, comments, or concerns: Lindy & Tauber 1221 Locust Street Third Floor Philadelphia, PA (215) jlindy@lindylawfirm.com (1) A tangible object, within the meaning of the Sarbanes- Oxley Act s anti-shredding provision, 18 U.S.C. 1519, covers objects that one can use to record or preserve information. (2) Disposal of an undersized fish did not involve the destruction of a tangible object for purposes of criminal liability under 18 U.S.C Electronic Monitoring of Sex Offenders / Fourth Amendment / Searches Grady v. North Carolina, --- S. Ct. ---, 2015 U.S. LEXIS 2124 (Mar. 30, 2015) A state conducts a search when it attaches a device to a person s body, without consent, for the purpose of tracking that individual s movements, whether the monitoring is civil or criminal in nature. Grady had previously been ordered by a state court to submit to satellite-based monitoring as a recidivist sex offender. The Supreme Court remanded this case to the North Carolina courts to determine whether the monitoring was a reasonable search. RECENT 3d CIR CASES CONTINUED ON PAGE 4

4 APRIL 2015 PAGE 4 Cert. Granted Conspiracy to Commit Extortion PAGE 5 Ocasio v. United States, No (Cert. Granted Mar. 2, 2015). ISSUE: NOTE: Whether a conspiracy to commit Hobbs Act extortion requires that the conspirators agree to obtain property from someone outside the conspiracy. It appears only the Fourth and Sixth Circuits have considered this issue. Third Circuit Facially Invalid Search Warrant / Exclusionary Rule / Officer Culpability United States v. Wright, 777 F.3d 635 (3d Cir. 2015). The agent in this case violated the Fourth Amendment s particularity requirement by executing a search warrant for Wright s home that lacked the list of items to be searched for and seized. That list was in a probable cause affidavit presented to, and approved by, the magistrate, but was removed before execution and placed under seal to protect an ongoing investigation. However, the Third Circuit held that the agent s conduct did not warrant suppression of the evidence because it did not rise to the level of gross negligence. The Third Circuit has synthesized the Supreme Court s opinions in United States v. Leon, 468 U.S. 897 (1984) and Herring v. United States, 555 U.S. 135 (2009), explaining that when a warrant is so facially deficient that it fails to particularize the things to be seized, the officers are usually at least grossly negligent and cannot rely on the good faith exception to save the search. However, this is not a categorical rule. The district court must evaluate the totality of the circumstances and consider any defects in the warrant, as well as the officer s conduct in obtaining and executing the warrant and what the officer knew or should have known. The court should also consider the extent to which the violation undermined the purposes of the Fourth Amendment and what the government gained from the violation, which are both relevant to the deterrence rationale underlying the exclusionary rule. The Third Circuit defined gross negligence as the lack of even scant care and the failure to exercise even that care which a careless person would use. RECENT 3d CIR CASES CONTINUED ON PAGE 5

5 APRIL 2015 PAGE 5 The Fourth Amendment s particularity requirement provides written assurance that the magistrate judge actually found probable cause to search for and seize every item mentioned, prohibits general searches, and informs the subject of the search of the lawful authority of the executing officers and the limits on their power to search. The search here was properly supervised by the case agent, who assured that the other officers confined their search in accordance with the warrant s limits. Second, it was clear the magistrate judge found probable cause as to each item to be searched for and seized, because when the warrant was approved, the affidavit was attached and incorporated a detailed list of items to be searched for and seized. Although the third purpose of the particularity requirement was undercut by the agents actions, the Court explained it is unclear how Wright was harmed by his inability to read the list of items the agents sought to search for and seize. Thus, the government gained nothing from this Fourth Amendment violation. The Third Circuit noted that only if mistakes like this one recur with some frequency will a defendant be in a position to argue that suppression is warranted.

6 DEFENSE LINK APRIL 2015 PAGE 5 Leigh M. Skipper, Chief Federal Defender Helen Marino, First Assistant Federal Defender Nina Carpiniello Spizer, Chief, Trial Unit Elizabeth Toplin, Assistant Chief, Trial Unit Brett Sweitzer, Chief of Appeals Federal Community Defender Office For the Eastern District of Pennsylvania Suite 540 West The Curtis Center 601 Walnut Street Philadelphia, PA Phone (215) Contact Jennifer Nimmons Herman if you have a new address, office address, or telephone number, for any CJA Panel related questions, or if you wish to withdraw from the CJA Panel for the EDPA. Jennifer_N_Herman@fd.org WANT MORE? VISIT OUR WEBSITE AT AND THE THIRD CIRCUIT BLOG AT RECENT 3d CIR CASES CONTINUED ON PAGE 8

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