Articles Posted in What’s New

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.

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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.

Police in New York have been fighting to block the release of raw, unedited body-worn camera footage by claiming that the footage is a “personnel record” used for performance evaluations and therefore confidential under the Civil Rights Law. However, in a decision released last month, the First Department Appellate Division rejected this theory, which had been put forward by the Patrolmen’s Benevolent Association. In PBA v. DeBlasio, et al., the Appellate Division held that privacy interests of police officers do not transform the bodycam footage into “personnel records” and therefore the footage must generally be released under the Freedom of Information Law.

Screen-Shot-2019-03-13-at-10.37.10-AM-1-275x300.pngApril 2017 marked the beginning of the NYPD’s body-worn camera program, which outfitted 1,300 police officers across 20 precincts with body cameras. The stated purpose of the program was to document the public’s interaction with police and establish a clear record of those encounters, as well as to provide evidence in  civil or criminal proceedings. That purpose was quickly tested on September 6, 2017, when police responded to a report of a Bronx man acting erratically in his apartment. The police responded for a “wellness check” that escalated into a 15-minute standoff ending with the shooting and death of Miguel Richards at the hands of NYPD Officers, all of whom were equipped with body-worn cameras. Our office, along with the Law Offices of Daniel A. McGuinness, P.C., represents Mr. Richards’s family in a lawsuit against the City and the individual police officers.

The entire encounter was caught on tape.

https://www.zmolaw.com/news/wp-content/uploads/2019/02/Screen-Shot-2019-02-21-at-3.18.47-PM-231x300.pngTop New York State officials claimed that they cannot be sued for the sex abuse, cover-up, and retaliation against Yekatrina Pusepa, a female inmate at Bedford Hills Correctional Facility, at the hands of a prison guard. Last week, a federal judge said they were wrong.

In October 2017, our office, partnering with the Law Offices of Daniel A. McGuinness, P.C., filed a lawsuit alleging that prison officials created an environment that failed to protect Ms. Pusepa, and other female inmates, from the sexual advances of correction staff. Ms. Pusepa, who was 25 at the time, was repeatedly approached by Corrections Officer Ruben Illa. Illa’s advances were notorious in the prison and, the complaint alleges, prison staff knew what Illa was doing and did nothing to stop it, preferring to hold Ms. Pusepa out as bait to try to catch Illa in the act. On one occasion, Illa groped Ms. Pusepa in her cell while two inmates held up a curtain to block the view. On another, he tried to have sex with her in a supply closet, but got scared off. On December 2, 2015, Illa called Ms. Pusepa out to the prison’s medical clinic for no apparent reason, then wrote her up for being out of place. After resigning from the prison, he pled guilty to filing a false report. He denies the sexual contact.

But Ms. Pusepa’s ordeal did not end with the sex abuse. When she refused to cooperate with a Department of Corrections investigation, she was thrown into solitary confinement on trumped-up charges, purposely left alone with a notoriously violent inmate, and verbally threatened and harassed by prison staff, the suit alleges. According to the lawsuit, top officials including Anthony Annucci, Acting Commissioner of DOCCS, Jason Effman, Associate Commissioner and PREA (Prison Rape Elimination Act) Coordinator for DOCCS, and Sabina Kaplan, the Superintendent at Bedford Hills were responsible for what happened to Ms. Pusepa because they were deliberately indifferent to the danger she faced from the guard who assaulted her.

32152929167_ec5898bebd_k-300x214Senate Bill S2440, the New York Child Victims Act, was signed into law by Gov. Andrew M. Cuomo on Thursday. The new law, which has been a goal of victims’ rights advocates for years, extends the statute of limitations for child sex abuse victims to file civil lawsuits, reviving old claims that, until yesterday, were time-barred. It also gives prosecutors more time to bring criminal charges going forward.

Survivors have a year from yesterday to bring civil claims for childhood sexual abuse that were previously barred by a statue of limitations. People who now wish to seek civil damages against their abusers can file a lawsuit, no matter how long ago the conduct occurred, as long as the suit is filed within the next 364 days.

If you were sexually assaulted as a child in New York and might be  interested in seeking damages against the abuser, you should consult an attorney as soon as possible to discuss your options. This second chance to hold your abuser accountable goes away soon. This blog post is not legal advice and only a qualified attorney can advise you about how the new law applies to your particular circumstances.

1024px-EAS_Hall_SIT-300x200Starting this month, I have been teaching an innovative new class about computer crime and high-tech government surveillance at the Stevens Institute of Technology in Hoboken. The course covers legal developments over the last two decades that have shaped how the government investigates computer crimes, such as computer hacking and the distribution of child pornography, as well as conventional crimes like drug trafficking and fraud that have become more efficient by using new information technologies. The course syllabus can be found here.

The topics we will cover come directly from our hands-on work for clients at the Law Office of Zachary Margulis-Ohnuma over the past couple of years. They include:

  • border agents’ authority to search computer devices at the United States border without a search warrant or suspicion,

On Monday, the New York Legislature passed a series of reforms that will significantly impact civil lawsuits and criminal prosecutions for sexual abuse of children. Senate Bill S2440, or the Child Victims Act, extends the statutes of limitations to allow victims who are abused before age 18 more time to file lawsuits — and more time for the police and prosecutors to bring criminal charges. Governor Cuomo is expected to sign the measure.

The Child Victims Act affects the law in three major ways:

  1. It gives victims until they turn 55 to file lawsuits against their abusers or institutions that allowed their abuse, notwithstanding the other limitations periods in the New York Civil Practice Law and Rules which used to impose overlapping time-bars on civil child sex abuse cases.

ZMOLaw is excited to announce the launch of its newly-designed website zmolaw.com !

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We have been working with designers for months to create a sleek, modern webpage that streamlines the user experience for our current and future clients. We hope our new, uncluttered design and updated navigation system will help you find the information you are looking for quickly and efficiently.

HOMEPAGE

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:

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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:

https://www.zmolaw.com/news/wp-content/uploads/2018/12/Screen-Shot-2018-12-29-at-9.03.52-PM-300x265.pngAs 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.

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