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Assistant United States Attorney
Assistant United States Attorney
“In law school and on the street everyone knows that lie detectors are not admissible in court. Wrong!”
A crew member of a ship claimed he did not know drugs were on board the ship. He was indicted in the Middle District of Florida’s Tampa Division. They indict them all, let the jury sort them out indictment charged many aboard with knowing the ship had drugs on board. This is not a rare claim where smugglers tend to minimize the need to know that 10-100 million dollars of cocaine is on board the vessel. Judge says let them use the polygraph. The best way to understand the polygraph case is to read it here.
“the Court finds the polygraph evidence to be admissible at trial to either impeach or corroborate witness testimony”
Update – Comments from Lead Defense Counsel
“There were three important lessons learned from this experience: 1) it is important to have the testimony of a qualified scientist, such as Dr. David Raskin, to testify in the Daubert hearing as the polygraph examiners are usually not well-versed enough in the scientific studies supporting the technique; 2) using a highly qualified examiner with extensive prior government experience is also critical, and 3) the relevant questions must be simple enough but carefully constructed so the results of the exam are indisputably meaningful.”
“[I]it helped to submit Dr. Raskin’s declaration in advance of the Daubert hearing so that all of the detailed support for the polygraph’s admissibility was on the record in advance, making the actual hearing go much more smoothly.”
Lead Defense Counsel Contact Information is Christophir A. Kerr, 13801, Walsingham Rd. #A-154, Largo, FL 33774, 727-492- 2551 .
Facts in Federal Drug Case
“Defendant Angulo-Mosquera, a 53-year old deckhand and cook, was indicted on September 4, 2014 in the Middle District of Florida on charges related to the seizure of 1,700 kilograms of cocaine concealed on board a freighter known as the “Hope II” in August 2014. Defendant Angulo-Mosquera is a Colombian national with no known criminal record in any country. He has never before been in the United States. Defendant Angulo-Mosquera denies any knowledge of the drugs found concealed on the Hope II and any involvement of any kind in the illegal drug trade.”
Yes. A United States District Judge in Florida’s Middle District, Judge Honeywell ruled in this Order that the court would allow admission of a polygraph performed by a former FBI agent on a defendant at trial. The defendant will testify at trial and has passed a pretrial polygraph. Here are the relevant questions:
1. Did you know those drugs were on that ship before the Coast Guard boarded the ship? Answer: No.
2. Did you know those drugs were on the Hope II before the Coast Guard boarded that
ship? Answer: No.
3. Did you know those drugs were on that ship before the Coast Guard found them in
August? Answer: No.
“Defendant Angulo-Mosquera plans to testify in his own defense at trial and requests that the results of the polygraph examination be admitted into evidence to corroborate his testimony. The Government objects arguing that polygraph examinations are just “one step above” junkscience and are “not suitable for juror consumption.” TR at 46:15-24, 49:16-17. The results of the polygraph examination, if admitted at trial, would be presented through expert witness testimony.”
“[T]the Court held an evidentiary hearing to determine the admissibility of the polygraph evidence and expert testimony regarding same, under Federal Rule of Evidence 702 (“Rule 702”) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At the hearing, Defendant Angulo-Mosquera presented the testimony of Dr. David C. Raskin, who for 44 years has conducted laboratory and field research on polygraph techniques for the detection of deception, taught university courses about polygraph techniques, trained government and law enforcement polygraph examiners, and published extensively on polygraph techniques, regarding the reliability of polygraph examinations in general and the examination in this case specifically.”
“Defendant Angulo-Mosquera plans to testify in his own defense at trial and requests that the results of the polygraph examination be admitted into evidence to corroborate his testimony. The Government objects arguing that polygraph examinations are just “one step above” junk science and are “not suitable for juror consumption.” TR at 46:15-24, 49:16-17. The results of the polygraph examination, if admitted at trial, would be presented through expert witness testimony.”
“Thus, in determining the admissibility of expert testimony under Rule 702, courts must engage in a rigorous three-part inquiry, determining whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.”
“Some factors that bear on this inquiry are: 1) whether the expert’s theories, methods or techniques can be or have been tested; 2) whether the technique, method, or theory has been subject to peer review and publications; 3) whether the known or potential rate of error of the technique when applied is acceptable; and 4) whether the technique, method, or theory has been generally accepted in the scientific community.”
“Thus, the Court finds the polygraph evidence to be admissible at trial to either impeach or corroborate witness testimony. Further specifics regarding the admission of the polygraph evidence will be determined at the time of trial. Accordingly, it is hereby ORDERED that Defendant’s Motion for an Evidentiary Hearing on Admission of Polygraph Evidence (Doc. 67), construed as a motion to determine the admissibility of the polygraph evidence under Federal Rule of Evidence 702, is GRANTED. The Defendant may present the polygraph evidence, through expert testimony, to corroborate or impeach witness testimony at the trial in this matter.”
Tampa Federal Criminal Defense Attorney notes that tweets are now discoverable in federal criminal cases. Because the Feds (United States Attorneys) were caught hiding evidence, the DOJ (United States Department of Justice) has written a memo on information to provide criminal defense attorneys. After 3 years, the memo has been released. Potential Sources of Discoverable Information include: Agency Files, Confidential Informant Files, Evidence, Gathered Information, Emails, Tweets, Text Messages, Memoranda, and Notes, etc.
Just obtained an internal memo from the Feds discussing all aspects of what the police and prosecutors must disclose to targets of federal prosecutions, including a warning that some tweets and social media use must be disclosed by Prosecutors in criminal cases. In short: Feds were caught hiding the ball and now must follow the rules in this detailed memo.
“tweets are now discoverable”
The new guidelines come from an investigation of case where United States Attorneys ( not in the Middle District of Florida ) were improperly concealing evidence. The memo may have been the result of prosecutors that improperly with held evidence in the case of a United States Senator who was convicted by a jury. Days later the Justice Department dropped the charges. After the Senator’s wrongful conviction, to cure these improprieties, the U.S. Department of Justice ordered prosecutors to draft memos on information to provide criminal defense lawyers – here are their marching orders.
Discover tweets: the Feds have
We initially received a tip from the Federal Defender, Eastern District of California. A complete copy of the United States Department of Justice Discovery Memo is available here. A video including the Attorney General’s statements on the problems with handling of evidence and the solution is included at the bottom of this post.
“The biggest problem is that nobody outside the prosecutor’s office actually knows what those policies are.”
The U.S. Department of Justice (USDOJ) ultimately released 73 individualized manuals for many federal district offices. There are links to the other Florida Federal Districts located at the end of this post. Florida has three districts. They are the Middle District, the Southern District, and the Northern District.
The Point: Feds were caught hiding the ball and now must follow the rules in this memo.
In the State court system, most prosecutors have a “open file” policy that ensures that whatever information is contained in the prosecutor’s file is available to defense attorneys. The lone exception has been state cases where police and prosecutors want to protect the identity of confidential sources. In police reports these frequently appear as “CS” for confidential source or “CI” for confidential informant.
“written and unwritten statements are discoverable in federal criminal cases”
In 20 or so years of Federal Criminal practice in the Tampa Bay area the best course of action considered the fact: “rules for what prosecutors must share and when remained almost entirely secret. . . .” USA Today, filed a Freedom of Information Act request that forced the hand of the Federal Prosecutors to pull back the curtain on what must be provided to defense attorneys under the Constitution and Federal Rules of Criminal Procedure.
“it took the department nearly three years to release the policies”
“The biggest problem is that nobody outside the prosecutor’s office actually knows what those policies are.” said Timothy O’Toole of the National Association of Criminal Defense Lawyers (NACDL). According to USA Today, “it took the department [U.S. Department of Justice] nearly three years to release the policies from 74 U.S. attorneys’ offices . . . .”
“Most criminal defense attorneys immediately request that evidence be produced at the initial appearance”
As a starting point, “To trigger the government’s reciprocal discovery rights defined in Federal Rules of Criminal Procedure Rule 16 (b), the defendant must request discovery.” says a footnote in the document. The manual defines the scope of persons including law enforcement agencies and staff from whom investigative information should be obtained. Most criminal defense attorneys immediately request that evidence be produced at the initial appearance or arraignment or detention hearing. The manual puts in writing the types of information available to defend federal criminal defendant by an exhaustive listing of what constitutes “discovery” or “discoverable information.”
“regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal”
The memo specifically instructs Assistant United States Attorneys (Prosecutors) that “[a] prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.” USAM 9-5.001 C 1.
“continue to object to use of the report”
Although the defense may get a report that includes witness statements, the manual reminds prosecutors to limit the use of statements in the reports. Especially when defense attorneys try to use the reports in cross-examination of witnesses in court. The memo states in part, “unless the witness has adopted the memorandum as his statement, AUSAs [Assistant United States Attorneys] should continue to object to use of the report in cross examination as if it were the witness’ statement.” See Page 9 of the Federal Prosecutor’s Memo.
“discussions cannot be avoided by failing to memorialize these events”
Sometimes police try to prevent helpful information from falling into the hands of the defense. To that end, the cops would not write down everything. They would fail to include helpful information in their reports. In a most remarkable requirement, the memo reminds prosecutors that, “[t]he duty to disclose to the defendant the substance of what a witness has said during interviews, debriefings, or informal discussions cannot be avoided by failing to memorialize these events. If any such events occur that are not memorialized in an interview report, the AUSA should determine what the witness said during the session and disclose the content of the witness’ statements to the defense. AUSAs should emphasize to agents the importance of memorializing all impeaching information.” See Page 10 of the Federal Prosecutor’s Memo.
The memo also extends prosecutors’ obligation to disclose to preparation of witnesses for trial. “The duty to disclose to the defendant the substance of what a witness has said during a pre-trial preparation session cannot be avoided by failing to memorialize it.” See Page 11 of the Federal Prosecutor’s Memo.
“know which agencies have played a role in the investigation”
To prevent prosecutors from using claims that favorable information was not available to disclose, the memo explicitly describes who is a part of the prosecution’s team. “‘prosecution team’ is defined as including ‘federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.’ The AUSA needs to know which agencies have played a role in the investigation and make all reasonable inquiries to ascertain what pertinent case information exists. When identifying members of the prosecution team, AUSAs should err on the side of inclusiveness . . . .” See Page 12 of the Federal Prosecutor’s Memo.
Responsibility of AUSA(s)
The responsibility to produce all discoverable information in a criminal case lies with the AUSA(s) assigned to the case. To fulfill this responsibility, AUSAs should consider several matters:
• What & When: What are the policies, rules, statutes and case law that define what must be produced and when must it be produced? (See II. Laws, Rules and Policy Governing the Production of Discoverable
Information (What Must Be Produced and When?))
• Who is part of the prosecution team: AUSAs are obligated to produce information that is within the possession of the prosecution team; thus, defining the scope of the prosecution team is critical. (See III. Who is Part of the Prosecution Team: Gathering and Reviewing Potentially Discoverable Information)
• Where to look: Once the prosecution team has been identified, AUSAs must ensure that all discoverable information is located, reviewed and produced as required, including agency investigative and administrative files, CI files, emails, PSRs, law enforcement Giglio, etc. (See IV. Potential Sources of Discoverable Information)
• How to produce and track: AUSAs must decide in what form to produce the discovery (bates numbered, hard copy, e-copy, available for inspection, redacted, etc), and must keep a detailed record of all discovery produced. (See V. Manner of Production and Recordkeeping) See Page 2 of the Federal Prosecutor’s Memo.
Scope of Criminal Discovery in Federal Cases
“For the purposes of this memorandum, “discovery” or “discoverable information” is not limited to Federal Rule of Criminal Procedure 16 information, but also includes all information and materials the
government must disclose to the defendant pursuant to the Jencks Act and Federal Rule of Criminal Procedure 26.2; Federal Rule of Evidence 404(b); Brady, Giglio, USAM 9-5.001 and 9-5.100; any applicable local rules; and the any applicable standing discovery order in a criminal case.” See Page 3 of the Federal Prosecutor’s Memo.
Memo Policies Must be Followed
“Deviation from the policy of production of reports of witness interviews requires Criminal Chief or Deputy Criminal Chief approval.” See Page 9 of the Federal Prosecutor’s Memo.
Not All Witness Statements are Created Equal
“Be careful not to characterize a witness interview as a Jencks Act statement in discovery letters or court pleadings”
“The Jencks Act defines “witness statements” as … “(1) a written statement made by [a] witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by [the] witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by [a] witness to a grand jury.” 18 U.S.C. § 3500 (e).
“[U]nless the witness has adopted the memorandum as his statement, AUSAs should continue to object to use of the report in cross examination as if it were the witness’ statement.” See Page 9 of the Federal Prosecutor’s Memo.
Helpful Information Must be Disclosed – Written or Not
“Memorializing Favorable Information and the Duty to Disclose. The duty to disclose to the defendant the substance of what a witness has said during interviews, debriefings, or informal discussions cannot be avoided by failing to memorialize these events. If any such events occur that are not memorialized in an interview report, the AUSA should determine what the witness said during the session and disclose the content of the witness’ statements to the defense. AUSAs should emphasize to agents the importance of memorializing all impeaching information.” See Page 10 of the Federal Prosecutor’s Memo. (underlining in original).
Witness Interview and Preparation – Continuing Duty to Disclose
“The duty to disclose to the defendant the substance of what a witness has said during a pre-trial preparation session cannot be avoided by failing to memorialize it.” See Page 11 of the Federal Prosecutor’s Memo.
|Deportation of Cuban Nationals|
Deportation of Cuban Nationals From the United States remains an open question for Federal Criminal Defense Attorneys in United States District Courts. One source says, “At this point we do not know how/when the normalization will impact the U.S.’s ability to deport Cuban individuals. At any rate, those who are in lawful status and not subject to any grounds of deportation (i.e. those who entered, obtained lawful permanent resident status, and do not have crimes that make them deportable) do not need to worry. The main impact will be on those who either fell out of status and can’t fix their status now (for example, those who were paroled in and then never applied for lawful permanent resident status, and who are not eligible for LPR status due to crimes) and those who already have deportation orders but were released from ICE custody on ICE orders of supervision because they could not be physically deported.”
UPDATE – Deportation of Cuban Nationals
“The notice includes a warning:
|Sample Notice of Hearing|
There is at least one case where the deportation proceedings of a Cuban national was reset to 2019, almost four years after the initial notice from the Immigration Court. A sample Notice of Hearing is included in this article. The notice includes a warning that “If you do not appear at a hearing, you may be ordered deported in your absence.”
|Wiretaps in Federal Prosecutions|
A friend at the Federal Defender’s Office in Florida just sent us this information on Wiretaps in Federal Prosecution and provided us with a new Congressional Research Service report entitled “Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping.” It is comprehensive and should be useful to anyone with a case in which wiretaps are an issue. Some excerpts are below and a download of the complete document is available below.:
The report summarizes:
“At the heart of Title III/ECPA lies the prohibition against illegal wiretapping and electronic eavesdropping, 18 U.S.C. 2511(1), that bans:
|Executive Clemency Initiative
Five Possible Requirements
• Have no history of violence prior to or during their current term of imprisonment.
|Court Order Was Improper|
What happens when employers get access to your Facebook profile? This seems to occur when disclosure is a condition of employment or part of the job interview process. Arguably, this is with consent.
What happens when an opponent in court tries to force the enemy to grant access to a Facebook page or social graph? This can occur when a Court Order directs a reluctant person to disclose their online lives. When police or prosecutors want records from social media websites like Facebook, they need only comply with this procedure and get an appropriate Court Order. When private parties want information the process is similar. You can review your own Facebook information to see what is found in your account information: How can I download my information from Facebook?
Facebook says, “We work with law enforcement where appropriate and to the extent required by law . . . .”
“Facebook may notify users before responding to legal process as permitted by law.”
Uncovering a witness’ past using social media is a common tactic. These disclosures are granted under Florida law’s fairly broad standard that the person must disclose relevant information or information reasonably likely to lead to relevant evidence. However, one court in Florida in a traffic accident case drew the line and called efforts by Defendants overly broad and probably amounted to a fishing expedition.
One Florida Court ordered a user to produce information on:
Why did this Court decide the Facebook information was not relevant?
What happens when an opponent in court tries to force the enemy to grant access to a Facebook page or social graph?
What happens when employers get access to your Facebook profile?
Does Facebook tell you that someone else is trying to get your account information?
How can I download my information from Facebook?
Does Facebook tell you that someone else is trying to get your account information?
Up until quite recently, there were exceptions to the general requirement that police get a Search Warrant for a cell phone. Cell phones have been a window into suspects’ activities, as police used these exceptions to get their hands on information found inside mobile devices. Obtaining a Search Warrant for a cell phone is not that hard to do. You can review a Search Warrant for a Cell Phone here: Here is an actual iPhone Search Warrant . GPS or Global Positioning Satellite information found in mobile phones has also been used by police.
Up until around 2014, police could and did search digital information on a cell phone seized from an individual who was arrested. Defense Attorneys would frequently challenge such searches. These searches were frequently based upon “helping” arrested citizens by making sure their property was properly inventoried by the arresting officers for safekeeping by jail personnel or by the evidence unit at the arresting agency’s office. This rationale remains a frequent flier in broad invasive “inventory” searches of automobiles during traffic stops.
Case Summary: The US Supreme Court’s ruling is that a properly obtained and issued search warrant is generally required before search of a cell phone. Here is some language from the Court’s ruling.
The Blackshades investigation began with an unrelated bust and this week we have reports of Feds spanning the world conducting dozens of interviews. The FBI claims this huge cybercrime bust in Operation Blackshades or the Blackshades Global Takedown . Our forensics team is ready for the fight.
|Federal Executive Clemency
10 Questions to Ask
We spent considerable time last week assembling our team to begin expediting the clemency petitions to be filed under the new Executive Clemency Initiative. Our team includes two Board Certified Criminal trial Lawyers and a number of other attorneys and paralegals. Our sense is that while most inmates will eventually receive some attention, our goal will be to quickly gather needed information, and to expedite the completion of the case file for federal authorities to evaluate. We have collected and listed below the basic information needed to get started and the specific questions we believe will need answers.
Ten Facts Needed for Executive Clemency Review
Ten Important Questions on Executive Clemency