Criminal Defense

Wednesday, August 6, 2014

Violent Rap Lyrics Penned by Defendant Unduly Prejudicial, NJ Supreme Court Finds

Supreme Court of New Jersey – In State v. Skinner, A-57/58-12 (N.J. Aug. 4, 2014) the Supreme Court of New Jersey affirmed the Appellate Division’s reversal of a defendant’s conviction for first-degree attempted murder and related charges.


Facts -- Vonte Skinner was charged with shooting Lamont Peterson seven times. The State contended that Skinner shot Peterson because Peterson owed money to a drug dealer that Skinner was working for as “muscle.” After the shooting, police searched Skinner’s car and found three notebooks containing violent and profane rap lyrics glorifying murder and rape. Over objection by defendant, the trial court admitted the rap lyrics as evidence of Skinner’s motive and intent.


Holding – The Court determined that, contrary to the State’s contention, the lyrics did not establish that Skinner would resort to violence and instead caused undue prejudice. Utilizing the 4-part test for admitting “extrinsic evidence of other crimes or wrongs” pursuant to Rule 404(b) of the New Jersey Rules of Evidence established in State v. Cofield, 127 N.J. 328 (1992), the Court explained that merely writing violent rap lyrics is not a crime. “Nor is it a bad act to or a wrong to engage in the act of writing about unpalatable subjects, including inflammatory subjects such as depicting events or lifestyles that may be condemned as anti-social, mean-spirited, or amoral.” Opinion, p. 28. Particularly when the violent lyrics do not relate to the specific crime at issue, in this case the shooting of Peterson, the Court determined that the lyrics would merely inflame the jury and prejudice the defendant.


Reasoning – The Court distinguished State v. Koskovich, 168 N.J. 448 (2001), in which lyrics authored by the defendant were allowed into evidence as proof of a “thrill kill” motive. In Koskovich, unlike in Skinner, the lyrics admitted related directly to the crime as it occurred because it showed an intent to engage in a murder for the sheer excitement of killing. By contrast, in Skinner, the lyrics admitted were of a generally violent nature, rather than specific to the shooting of Peterson.

Friday, July 25, 2014

New Jersey Supreme Court Proposes “Crime Fraud” Exception to Marital Privilege Rule

Supreme Court of New Jersey – In State v. Terry & Savoy, A-71-12 (N.J. July 22, 2104) the Supreme Court of New Jersey affirmed the Appellate Division’s decision that wiretapped conversations between spouses that are otherwise privileged cannot be intercepted or otherwise introduced into evidence. However, because of public policy concerns, the Court proposed new language amending Rule 509 of the New Jersey Rules of Evidence to create a “crime-fraud” exception so that conversations such as the one intercepted in the case before the Court are admissible on a going forward basis.

Teron Savoy and Yolanda Terry were married. In 2010, the Ocean County Prosecutor investigated Savoy as the leader of a drug trafficking network. In connection with the investigation, the Prosecutor obtained court orders authorizing a wiretap of Savoy’s cell phones. Evidence obtained through the wiretaps included text messages between Savoy and Terry: among them was one in which Savoy asked Terry to collect money from a co-defendant to whom drugs allegedly had been lent; another involved a request by Savoy that Terry retrieve items from a car that had been seized and in which heroin had been found. At trial, Savoy and Terry moved to preclude the phone conversations and texts between them because the evidence was protected from disclosure by the marital privilege set forth in Rule 509 of the Rules of Evidence. The trial court denied the motion, but the Appellate Division reversed, finding that the communications were privileged. The Appellate Division noted, however, that a crime-fraud exception did not apply, but “strong public policy concerns supported applying a crime-fraud exception to the privilege.” Opinion, p. 5.

The Court explained that the marital privilege prevents only one spouse from testifying against the other. Tracing the history of how the marital privilege developed, the Court noted that “a marital communication loses its privileged character if it is overheard by a third party ‘either accidentally or by eavesdropping.’” Opinion, p. 9 (citations omitted). The State argued that a wiretap is akin to a neighbor overhearing or an eavesdropper, and thus the marital privilege should not apply to wiretapped evidence. The Court disagreed and held that under section 11 of the wiretap statute, N.J.S.A. 2A:156A-11, “no otherwise privileged wire, electronic or oral communication intercepted in accordance with, or in violation of, the provisions of this act, shall lose its privileged character.” Thus, a confidential communication between spouses, which would remain confidential in the absence of the wiretap, does not lose its privileged status by virtue of the wiretap.

 The Court rejected the State’s reading of the statute that the privilege is a personal one, so an eavesdropper may testify about the contents of the overheard communication. Citing the legislative history of section 11 of the wiretap statute, the Court determined that a “state authorized wiretap, unlike a private eavesdropper, does not destroy the privilege.” Opinion, p. 14. Any other reading of section 11 would render obsolete that part of the statute discussing the privileged nature of a communication overheard via wiretap.

 Although the statements retained their privilege, the Court proposed an amendment to the Rules of Evidence pursuant to the Evidence Act that would create a crime-fraud exception to the marital privilege. Noting that all eleven federal circuits and a number of states already have imposed a crime-fraud exception to the marital privilege, the Court recommended amending Rule 509 “to include a crime-fraud exception that is similar to the exceptions that apply in federal and state courts throughout the nation as well as other evidentiary rules in New Jersey.” Opinion, p. 20. Because the proposed rule change is “fundamental,” the Court submitted the proposed change for approval by joint resolution of the Legislature and for the Governor’s signature. The proposed amendment “should not protect a communication that relates to an ongoing or future crime or fraud in which the spouses were joint participants at the time of the communication.” Opinion, p. 26.

Wednesday, June 11, 2014

Robing Room Jury Instruction Found to be Reversible Error

New York Court of Appeals – In People v. Rivera, No. 117 (June 10, 2014), the Court of Appeals determined that a brief colloquy in the robing room between the trial judge and a juror should not have taken place outside the presence of the defendant, even with the consent of counsel. Because it did, the Court of Appeals affirmed the Appellate Division’s reversal of defendant’s conviction for second-degree criminal possession of a weapon.


Anner Rivera shot and killed Andres Garcia after Garcia shot Rivera’s friend several times. Rivera was indicted for intentional murder and weapons possession, but claimed that he shot Garcia in self defense. The trial court instructed the jury on the defense of justification on each count of the indictment. After deliberating for more than a day, the jury sent a note seeking an explanation of certain terms defined in the jury instructions. The court advised the jury and directed it to continue deliberations.


Shortly thereafter, juror number 11 requested to speak with the court. The judge agreed to hear from the juror in his robing room on notice to the prosecutor and counsel, but outside their presence and on the record. It is not clear whether the defendant was aware that his counsel consented to this procedure. After a brief colloquy between the judge and juror, the court summarized the conversation in the presence of counsel and (after realizing the defendant was not present and returning him to the courtroom) the defendant. Rivera was acquitted of murder and manslaughter, but convicted of second-degree possession of a weapon. The Appellate Division reversed the conviction, finding that the colloquy was improper.


The Court of Appeals explained that a defendant’s constitutional right to be present at all material phases of a trial includes the right to be present during jury instructions. This right is derived from case law, see People v. Harris, 76 N.Y. 2d 810, 812 (1990); People v. Mehmedi, 69 N.Y. 2d 759, 760 (1987); and incorporated into the Criminal Procedure Law (CPL) at section 310.30. Under CPL 310.30, whenever a deliberating jury requests additional guidance or trial evidence, “or any other matter relevant to its consideration of the case,” the court should direct the jury to be brought back into the courtroom and, after notice to both sides, should give the information or instruction as it deems proper. In the eyes of the Court of Appeals, the fact that the trial court “cured” the initial defect of speaking with a juror outside the presence of the defendant was not sufficient to overcome the procedural error in the first instance.


The Court of Appeals relied on People v. Cain, 76 N.Y. 2d 119 (1990) to support its finding that the trial court committed procedural error. In Cain, a similar robing room conversation occurred, and the Court of Appeals reversed the defendant’s conviction because “the defendant had an absolute right to be present and therefore, the error ‘mandate[d] reversal’ without regard to whether any prejudice flowed and despite the presence and consent of defense counsel.” Decision p. 6 (citation omitted). The Court of Appeals rejected the dissent’s de mimimis argument, because CPL 310.30 is unequivocal about the defendant’s right to be present at crucial stages of the trial. Likewise, the Court of Appeals disagreed with the dissent that the conversation with juror number 11 was merely “ministerial” and therefore not prejudicial to the defendant. As a result, the Court of Appeals affirmed the Appellate Division and held that the defendant was entitled to a new trial. 

Thursday, May 29, 2014

FCPA Guidance from the Eleventh Circuit? Not Entirely

Court of Appeals for the Eleventh Circuit – In United States v. Esquenazi, No. 11-15331 (11th Cir. May 16, 2014), the U.S. Court of Appeals for the Eleventh Circuit affirmed the convictions of two men charged with violating the Foreign Corrupt Practices Act (FCPA), in violation of 15 U.S.C. § 78dd-2, concealment money laundering, conspiracy, and conspiracy to commit money laundering. In doing so the Eleventh Circuit defined the statutory term “instrumentality” as used in the FCPA, however the definition may not ultimately provide the clarity the court intended.


Joel Esquenazi and Carlos Rodriguez co-owned Terra Telecommunications Corp. (Terra), a Florida company that purchased phone time from foreign vendors and resold the minutes to customers in the United States. One main vendor was Telecommunications D’Haiti (Teleco), which was an entity with ties to the Haitian government. Specifically, when Teleco was formed, it was granted a monopoly on telecommunications services; it had significant tax advantages; its Board of Directors had certain members appointed by the Haitian government; and the National Bank of Haiti owned 97 percent of Teleco. According to testimony adduced during trial, essentially everyone in Haiti considered Teleco a public administration.


In 2001, Terra owed Teleco approximately $400,000. Esquenazi arranged for a deal in which an officer of Teleco would shave minutes from Terra’s bill in exchange for payment of 50 percent of what the company saved. The payments would be made through sham companies so as to disguise their purpose. Ultimately, through another sham company established with the assistance of Esquenazi, Terra made six transfers totaling $75,000 to the sham company. Esquenazi (who admitted he had bribed Teleco officials) and Rodriguez were convicted after trial. After the trial concluded, the Haitian Prime Minister submitted a declaration stating that Teleco is not a state enterprise. He later clarified his initial declaration by stating that “there exists no law specifically designating Teleco as a public institution.”


The Eleventh Circuit explained that the FCPA prohibits any “domestic concern” from making use of the mail or any means of interstate commerce “corruptly in furtherance” of a bribe to any foreign official, or to any person, “while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official,” for the purpose of “influencing any act or decision of such foreign official . . . in order to assist such domestic concern in obtaining or retaining business for or with, or directing business to, any person.” 15 U.S.C. § 78dd-2(a)(1), (3). Foreign official is defined as any officer or employee of a foreign government, or any “department, agency, or instrumentality thereof.” 15 U.S.C. § 78dd-2(h)(2)(A). Finding that no other court of appeal has defined “instrumentality,” the Eleventh Circuit endeavored to do so.


The court began with the dictionary definitions of “instrumentality” and determined that the parties agree that “an instrumentality must perform a government function at the government’s behest.” Esquenazi at p. 11. But, according to the court, this does not provide a complete definition and so the court felt the need to dig deeper. Looking at the statutory company kept by the word “instrumentality,” the court found that words like “agency” and “department” are in the same statutory clause as “instrumentality.” As a result, an entity must be “under the control or dominion of the government to qualify as an ‘instrumentality’ within the FCPA’s meaning.” Esquenazi, at 13. Likewise, based on the statute’s context, “an instrumentality must be doing the business of the government.” Id. The question, then, is what will be considered the government’s business.


After a long explication of the United States’ ratification of the Organization for Economic Cooperation and Development’s Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (OECD Convention), the Eleventh Circuit determined that the definition of “instrumentality” within the FCPA was intended to reach “the types of officials the United States agreed to stop domestic interests from bribing when it ratified the OECD Convention.” Esquenazi, at 18. Thus, the court declined to limit the definition – as advocated by defendants Esquenazi and Rodriguez – to entities that perform only traditional, core government functions. Instead, it determined that “the most objective way” to determine whether an instrumentality is one of a foreign government, “is to examine the foreign sovereign’s actions, namely, whether it treats the function the foreign entity performs as its own.” Esquenazi, at 19 (emphasis in original). The Eleventh Circuit thus defined an “instrumentality” as “an entity controlled by the government of a foreign country that performs a function the controlling government treats as its own.” Esquenazi, at 20.


Recognizing itself that this definition seems incomplete, the Eleventh Circuit then listed factors to consider when determining whether an entity is an instrumentality of a foreign government. The measure of control will be determined by looking at how the government designated the entity; whether the government has a majority interest in the entity; whether the government may hire and/or fire executives of the entity; whether any of the entity’s profits go to the government’s coffers; and how long these factors have existed. Consideration of the entity’s function will focus on whether the entity has a monopoly over the function it is tasked with carrying out; whether it receives government subsidies for providing its services; whether the entity provides services to the general public; and whether the government of the foreign country generally perceives the entity to be performing a government function. These are fact-based questions, and will depend on the entity at issue.


Applying this definition, the Eleventh Circuit affirmed the defendants’ FCPA convictions. The jury instructions provided a sufficient basis for concluding that Teleco was an instrumentality of the Haitian government. Likewise, the evidence established that the government had satisfied the FCPA’s knowledge requirement because the defendants knew or had reason to know that the bribes paid would reach the hands of a foreign official. Lastly, the court dismissed the Haitian Prime Minister’s declaration – which defendants claimed constituted exculpatory material pursuant to Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) – because the information was never in the hands of the prosecutor, so it was not required to be disclosed.


The takeaway from the Esquenazi case is that in attempting to clarify what constitutes an “instrumentality” for the purposes of the FCPA, the Eleventh Circuit provided a definition that still requires significant factual analysis and still prohibits payments to an entity acting as an arm of the government. Yet whether an entity will be considered an instrumentality of the government will still depend on local perceptions and a factual analysis that could put defendants in the crosshairs of enforcement with only slightly clearer guidance than they had before the Esquenazi decision. Businesses should continue to proceed with caution when doing business with entities that are not clearly private and that may be connected to, controlled by, or performing the functions of the government.

Thursday, May 22, 2014

Attorney Malpractice Claim in Underlying Criminal Case Need Not Show Defendant Would have Been Exonerated

New Jersey – Appellate Division. In Cortez v. Gindhart, No. A-0430-12T1 (App. Div. May 21, 2014) the Appellate Division rejected the traditional notion that in order to assert a legal malpractice claim in an underlying criminal case, the defendant must prove that he would have been exonerated but for the attorney’s negligence. Eduardo Cortez was represented by Joseph G. Gindhart in connection with several violations of the Internal Revenue Code. He claimed that Gindhard failed to engage in plea negotiations and, as a result, he was forced to retain new counsel who negotiated a plea agreement that resulted in a thirty-six month period of incarceration, restitution in the amount of $442,734, a special assessment of $100, and a three-year term of supervised release.


Gindhart moved to dismiss the legal malpractice complaint, claiming that Cortez had to prove that he would have been exonerated. The trial court granted summary judgment. The Appellate Division affirmed the dismissal, but explained that the view that exoneration was required “rested upon a misinterpretation” of precedent. In the leading cases, McKnight v. Office of the Public Defender, 197 N.J. 180 (2008) and Rogers v. Cape May Cnty. Office of the Pub. Defender, 208 N.J. 414 (2011), the New Jersey Supreme Court found that the accrual of a legal malpractice action occurs when the conviction is shown to be invalid, with some degree of finality. Cortez freely admitted his guilt of the offense. Rather, he claimed a lost opportunity as a result of Gindhart’s alleged negligence; he was deprived of the opportunity to accept a more favorable plea offer and thus received a harsher sentence.


Noting that attorneys are not guarantors of results, the Appellate Division explained that attorneys are charged with exploring the possibility of resolving criminal charges through plea agreements, keeping a client informed of a plea offer, and to follow a client’s instructions in accepting or rejecting a plea offer. As a result, even if a client pleads guilty, an attorney may be negligent in discharging his duties on behalf of that client. According to the Appellate Division, failing to engage in plea negotiations on behalf of a client “could form the basis for a legal malpractice claim without evidence of exoneration if he was able to prove that he suffered an actual injury that was proximately caused by the alleged negligence.”


Notwithstanding this, the court found that Cortez’s legal malpractice claim failed because he failed to bring forth any evidence that he could have gotten a plea offer better than the one he ultimately accepted. 

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