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Zachary Margulis-Ohnuma

Conviction Overturned for Client Accused of Importing over 100 Kilos of Heroin

April 9, 2019 | by Zachary Margulis-Ohnuma

Judge Raymond Dearie of the Eastern District of New York ruled yesterday that ZMOLAW client Adamou Djibo is entitled to a new trial because the government wrongfully withheld thousands of pages of relevant information from a cooperating witness’s cell phone. The reversal follows a remand from the Second Circuit: the appeals court directed the trial court to permit Djibo time and public funds to obtain a full translation of the material, which turned out to contain messages in Swahili that undercut the government’s theory that Djibo was the mastermind behind a ring that smuggled 100 kilos of heroin from Africa.

The government’s main evidence was the testimony of cooperating witness Stanley Walden, who struck a deal to testify against Djibo shortly after being stopped flying in to JFK with more than six kilos of low-grade heroin in a secret compartment in his suitcase. Walden protested that the drugs were not his, but belonged to Djibo and that he was just a courier. Text messages on his phone in English appeared to corroborate his claim, and the feds arrested Djibo as he boarded a flight to London a few weeks later.

The government handed over the English-language texts with Djibo, but nothing else from Walden’s phone, despite repeated requests many months before trial. Not relevant, said AUSA Karen Koniuszy. Texts on Djibo’s phone were suppressed because the border agents illegally searched it when he was stopped — but that’s another story.

Can Border Agents Search Your Cell Phone?

March 28, 2019 | by Zachary Margulis-Ohnuma

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Imagine you are met on the tarmac getting off a plane at JFK Terminal Two by armed customs officers. They tell you to come with them. They drive you to a secure area in Terminal Four, where foreigners are “processed” — i.e detained until they are admitted into the U.S. or sent to immigration custody. At Terminal Four, the officers do a normal customs search, then ask you to wait in a windowless room. Plainclothes investigators enter and tell you that they are going to search your cell phone and iPad. “No you are not,” you say. “I have a Fourth Amendment right to be free of unreasonable searches and seizures.” They respond that the “protection of the Fourth Amendment does not apply at the U.S. border.” They give you a “choice” — you can leave, but you have to leave your cell phone and iPad behind to be searched. Or you can give them your passcodes and, if they don’t find anything on your devices, you can be on your way. You give them the passcodes. They find pictures they believe are child pornography — they are not — and take you away in handcuffs.

Is this a “routine” border search, or something else? Have your Fourth and Fifth Amendment rights been violated?

Those are questions that principal attorney Zachary Margulis-Ohnuma will argue tomorrow before a panel of judges at the New York Supreme Court Appellate Division, Second Department. The ACLU and Electronic Frontier Foundation argued in an amicus brief that, under these circumstances, a warrant based on probable cause is required to search the devices. The state believes the search was proper because a federal agent had some vague notion that a house associated with a family member of the defendant was at some point in the past used to download child pornography. We’ll argue that more is needed to justify a search of electronic items at the border, just like a warrant was required to search a cell phone incident to arrest in the 2014 Supreme Court case Riley v. California. Moreover, under these circumstances the provision of the passcodes was not a voluntary act but was the product of coercion, and thus information derived from the passcodes cannot be used against the defendant under the Fifth Amendment.

Mandatory Minimum Sentences and Federal Child Pornography Charges

January 3, 2019 | by Zachary Margulis-Ohnuma

The U.S. Sentencing Commission kicked off the new year with a comprehensive report analyzing data from federal sex crime cases. The report, which runs 81 pages plus a 62-page appendix of charts and graphs, contains some eye-opening conclusions. The most significant for child pornography cases is this: even though there is “little meaningful distinction between the conduct involved in receipt and possession offenses,” average sentences for receipt are much longer than sentences for possession. The Sentencing Commission has been calling on Congress to “align” the penalties for receipt and possession of child pornography since 2011. The effect on sentencing of the different child pornography offenses is shown in the following chart:

The takeaway is something we clearly already knew: what you plead to matters. Average sentences for possession are lower than sentences for receipt — 26 months lower on average — even though the conduct is the same. Distribution convictions, which carry the same mandatory minimums as receipt, are much higher. Defendants and their attorneys must press prosecutors to permit them to plead to possession and not receipt or distribution. Even though receipt or distribution can be charged in the vast majority of cases, some prosecutors are open to pleas to possession, especially if the defense team can present mitigating circumstances.

The effect of statutory mandatory minimums is especially significant because the U.S. Sentencing Guidelines, which used to be binding on sentencing judges, are now merely advisory. As a result, judges increasingly impose below-Guidelines sentences in child pornography cases, which is illustrated in the following chart from the Commission’s report:

The Federal Criminal Justice Reform that Wasn’t

December 31, 2018 | by Zachary Margulis-Ohnuma

As of December 27, there were 180,429 prisoners in federal custody. Think about that a minute — about a fifth the population of San Francisco behind bars for interstate crimes. No one seriously thinks this many people should be housed, clothed, fed, and secured with federal tax dollars. (More than 2 million people are incarcerated in the U.S. when you include state and local facilities, way more than any other country in the world, including China, which has four times as many people and notoriously strict laws).

There are two reasons for the staggering number of federal inmates: over-criminalization and excessive sentences. In other words, too many things you can do can land you in federal prison: crimes like fishing in the wrong waters, or charging a health insurer for dental work performed by an unlicensed dentist. And when people are locked up for federal crimes, it is for too long, like when a teenage street-level drug dealer is held liable for the whole drug conspiracy that he is part of.

So what a breath of fresh air when the lame-duck Congress briefly came together at the end of 2018 to agree on federal criminal justice reform. Pres. Donald J. Trump signed the so-called “First Step Act” into law on December 21. The press crowed that Trump would “go down in history” and that the changes represented a “sweeping reform.” Probably none of them read the 148-page law, which will have no effect on the vast majority of people caught up in the federal criminal justice system. At a human level, the most important provision of the new law is that it bans the barbaric practice of using restraints on female inmates as they are giving birth. You read that correctly. Until recently the Bureau of Prisons routinely shackled women in the hospital, in labor, as though they might take the opportunity to escape as their baby was being born. It took Donald Trump and a voted-out-of-office Republican congress to finally make that illegal.

Spending Thanksgiving at Home

November 21, 2018 | by Zachary Margulis-Ohnuma

Alcatraz09-225x300 Our office had two happy results in cases in the last twenty-four hours, just in time for the Thanksgiving holiday. I won’t use names to protect client confidentiality, but here is the short version of how two men will pass a more peaceful Thanksgiving than they have in a long time.

Our first client was in prison in Virginia for years for trafficking in cocaine while he was on federal supervised release. After his Virginia prison term ended, he was brought to the Southern District of New York to face sanctions for violating his release terms. Although he had a long rap sheet, he did well in Virginia prisons, completing numerous courses and garnering praise from his work supervisors in jail. He was ready to be released, but, although he had family around the country, there was no plan for him. We nonetheless asked for time-served and the federal judge asked us to come back with a plan in a few weeks, that is, yesterday. We proposed also making a written submission to aid in sentencing and present what we learned about the client’s success in jail.

So associate attorney Victoria Medley got to work, calling around potential drug rehabilitation programs near the client’s family members in Maryland. Calls went unanswered, paperwork was required, and the whole effort seemed mired in bureaucracy. Eventually, though, a suitable program was found and told us, in principle, that he would be accepted. We submitted a detailed brief to the judge about the client’s progress in prison, and explaining the unique circumstances that caused him to go off the rails and back into drug dealing years ago. We showed up to court yesterday expecting that he would be detained through the holidays until an actual rehab bed could be secured, confirmed, paid for and, basically, guaranteed.

A Holistic Defense Leads to Less Time Locked Up

November 12, 2018 | by Zachary Margulis-Ohnuma

adults-business-connection-1181715-300x200 People who seek out criminal lawyers are human beings, in all their vast complexity. An important part of our jobs as lawyers is to reveal the full person to the court: their prior conduct, the quality of their relationships, their health and addiction issues, and their prospects for the future. If a case cannot be won at trial, then these factors make all the difference in obtaining a fair sentence at the end of the day. We have always known from our day-to-day practice that presenting the person to the court, looking beyond the crime, beyond the past, and toward the future, makes a huge difference in avoiding prison or getting a short, just sentence. Now, there is a study showing just that.

This morning the Rand Corporation and the University of Pennsylvania Law School released a study to be published in the Harvard Law Review analyzing a mountain of data tailor-made to compare the holistic approach with an approach that has less resources to present the whole person to the court. Researchers looked at clients of the Bronx Defenders and the Legal Aid Society facing charges in the Bronx over a ten-year period. The two law offices pretty much split the clients between them based on rotating shifts in court. Each office represented about half of 587,000 cases that were looked at. The two organizations’ approaches were a bit different though, with Bronx Defenders offering more “holistic” services, with lawyers leading teams that could include social workers, housing advocates, investigators and other specialists to address the client’s “wider needs.” Legal Aid put more emphasis on the traditional role of criminal defense lawyers. The study — which should not be seen to pit the two approaches against one another — concluded that “the holistic approach reduced the likelihood of a prison sentence by 16 percent, and actual prison sentence length by 24 percent.” In drug and larceny cases, the effects on sentences were even greater, 63 and 72 percent respectively.

However, Legal Aid noted in press reports that the data came from the “broken windows” era of policing in New York City when arrest rates for low-level misdemeanors were historically high and caseloads, especially for Legal Aid citywide, were crushing. Since then, arrests are down and caseloads for defender organizations have been capped. Both organizations are asked to defend clients under the most difficult imaginable circumstances with exceedingly limited resources, and rely on the public-spirited devotion of smart, hard-working — and underpaid — attorneys to, in most cases, achieve just outcomes for their clients.

Freedom…to Marry

October 16, 2018 | by Zachary Margulis-Ohnuma

IMG_1123-e1539730197788-300x176 With a heart full of joy, I had the unique pleasure of attending the wedding of Felipe and Karen Rodriguez last month. Felipe has been my client since the summer of 2015, when I signed up to assist the Innocence Project in representing him in his claim that he was wrongfully convicted of a 1987 homicide in Queens. Gov. Mario Cuomo granted Felipe clemency at the beginning of 2017. The clemency petition really had two parts: Felipe was just about the best inmate the prison system had ever seen, and there was basically no credible evidence supporting his conviction. He renovated the prisons he resided in and counseled serial killers no one else would talk to. He ran a Catholic prayer group and started a newsletter. He was so trusted that he was put in charge of caustic chemicals at one of the prisons he was assigned to. He did 27 years, and we are still fighting to prove his innocence in the courts. Felipe’s case was profiled in detail in the Daily News last Christmas — and he has thrived since then.

After he got out, Felipe was reunited with his son, who had last seen him on the outside as a toddler. But Felipe and Felipe Jr. kept in touch over the years, shedding tears of joy on the meadow in front of Eastern Correctional Facility on the day of Felipe’s release. And Felipe has thrived in the two years he has been out, proving Gov. Cuomo’s judgment to be sound. He works long hours in a hotel and takes care of Karen and her two boys, whom he considers to be his sons. They met as she was waiting tables, and he was lonely and tired after a long day of work. The wedding was a glittering occasion in the greatest tradition of New York City. The ceremony was in an office overlooking Washington Square Park, presided over by a prominent criminal lawyer who was just appointed as a judge. The party afterward was at a nearby Italian restaurant in Greenwich Village. The judge was there, along with the former editor-in-chief of the Daily News, the former president of NYU, a retired fire chief that Felipe befriended through the prison ministry, and my brilliant co-counsel on the case, Nina Morrison of the Innocence Project, along with a bevy of Karen’s friends and relatives. Felipe and Karen’s boys danced long past their bedtime. IMG_0707-300x300

The main witness against Felipe has unequivocally recanted his testimony. The district attorney’s office is looking at the case. I believe that it is only a matter of time before Felipe’s exoneration is complete, and the failures that gave rise to his wrongful conviction in 1990 are exposed. Nothing will give Felipe back the 27 years he lost, but he is determined to live a lifetime of joy in the precious years of freedom he has left.

Margulis-Ohnuma Client Antonio Yarbough Received Highest Payout for NYPD Abuse in Last Five Years

September 5, 2018 | by Zachary Margulis-Ohnuma

According to an article in the New York Post that was picked up in Newsweek, the City of New York has paid out $384 million in settlements for police abuse cases filed in the last five years. The recipient of the largest slice of that pie? Antonio Yarbough, our client since 2008 who was exonerated in 2014. Antonio and his co-defendant Sharrif Wilson were framed by NYPD officers for the 1992 slaughter of Antonio’s family by a killer who went on to kill again seven years later and has never been caught. Starting on the day Antonio found his mother, his sister, and a 12-year-old friend stabbed and strangled in Coney Island, he and Sharrif were wrongly imprisoned for nearly 22 years. They were released after DNA found under Antonio’s mother’s fingernails linked the murders to a similar slaying of a young woman in Sunset Park in 1999.

According to the articles, data released by the City’s Corporation Counsel shows that 37 cases were settled for $1 million or more, accounting for about half of the total payout. Most cases were much smaller. Of the more than 11,000 cases that were brought over the five-year time period, only about half settled at all. Three thousand of the cases settled for between $5,000 and $25,000, which is typical for a false arrest that does not lead to more than a night in jail.

Many of the largest settlements like Antonio’s come from a more violent time, when police were overwhelmed with murders and would do anything to close cases. Money can never make up for the wrongful loss of freedom, but these settlements help the victims of police misconduct heal. Hopefully, they also help deter policies and practices that lead to abuses by a small minority of police.

Michael Cohen and Plea Agreements

August 31, 2018 | by Zachary Margulis-Ohnuma

When Michael Cohen signed his plea agreement last Tuesday at the Southern District of New York, he was affixing his signature to one of the most important documents in recent memory: a sworn admission that he conspired with the president of the United States to violate a federal law to get him elected. But the document Cohen signed was in many ways pure boilerplate, the same language used in hundreds of pleas in the Southern District every year. Our office represents a lot of defendants in the Southern District and many of those cases end in plea deals like the one Michael Cohen received. So here is a quick primer on what the plea agreement means.

First, even though there is an agreement, no one knows what Cohen’s sentence will be. He is out on bail and he is probably hoping never to see the inside of a prison cell. There are sentencing considerations set forth in the agreement (much more on those below), but they do not bind the judge. Unlike in state court, federal defendants almost always plead guilty without knowing what their punishment will be.

Second, the document Cohen signed is not a cooperation agreement. A cooperation agreement is an agreement where the defendant promises to plead guilty and cooperate fully with the government, providing information and making himself available whenever prosecutors want to speak to him (in federal practice, we use the term “government” to mean the prosecutors). In return, the prosecutors promise to file a “5K motion” — a letter that allows the sentencing judge to avoid any applicable mandatory minimum sentence and may urge the judge to sentence below the sentencing Guidelines. In Cohen’s case, there is no mandatory minimum, so the 5K motion will not be as significant as it would be in, say, a drug trafficking case. When a mandatory minimum is charged, and the defendant is convicted (either by guilty plea or after trial), the only way to avoid the minimum sentence is by getting the government to file a 5K letter. In other words, because the crimes that Cohen was charged with do not carry a mandatory minimum, Cohen can still cooperate and get the full benefit he would have received with a cooperation agreement, but with fewer obligations. He might very well be cooperating, just without an agreement. If he is, he is putting his trust in the office prosecuting him. Seven government attorneys were listed on the plea agreement. He is trusting them to urge the judge to lower his sentence if he is helpful to the government. That’s fine, as long as everyone gets along as they work together to build a case against the president of the United States.

Governor Cuomo Signs Prosecutorial Conduct Commission Bill into Law, Sort of

August 21, 2018 | by Zachary Margulis-Ohnuma

Getting out ahead of the difficult problem of prosecutorial misconduct, New York Governor Andrew Cuomo yesterday signed a bill creating a new commission empowered to investigate allegations against prosecutors. But in a Signing Memorandum dated today, Cuomo announced that the legislature had agreed to modify the bill in the next session to address concerns that it violates the New York State Constitution and could disrupt ongoing criminal cases. Specifically, according to the Signing Memorandum, the law will be immediately amended so that the new commission will not include active, sitting judges; the Appellate Division (rather than the Court of Appeals) will oversee its decisions; and the composition of the eleven-member commission will be “balanced.” In addition, and perhaps more concerning, the amendment will “protect active, pending investigations.” While it is not clear exactly what that means, I suspect that a person with a grievance against a prosecutor during an active criminal case would have to wait until the case is concluded to initiate an investigation by the new commission. That makes sense — but only as long as trial judges maintain their independence and are willing to provide a remedy for prosecutorial misconduct within the criminal case itself.

In the signing statement, the governor clearly endorsed the spirit of the bill as written: “At its core, our criminal justice system must fairly and consistently investigate and prosecute claims, convict the guilty and exonerate the innocent, without regard to race, ethnicity, gender, sexual orientation or any other protected classification. When any prosecutor consciously disregards that fundamental duty, communities suffer and lose faith in the system, and they must have a forum to be heard and seek justice.”