There is no mistaking the fact that some of these prosecutions appear clever navigations of a federal criminal justice system, and ones where few tears are shed for the culprits who apparently evaded justice for their most serious transgressions. In Baltimore, federal prosecutors have regularly built drug trafficking cases around men and women suspected of murdering rivals or informants, and seemingly doing so with impunity for many years. At sentencing, the Assistant U.S. Attorneys present evidence of complicity in murder, and the drug trafficking defendant’s already heavy exposure then skyrockets towards maximum penalties like Life or 30 years in prison.

Whether a historic gangster or a modern-day character out of “The Wire,” the notion of providing powerful, and damning, information to a sentencing judge to support a stiffer sentence is a safely established component of the individualized treatment we see in sentencings every day. Indeed, while all of us profess to support equal treatment for equally situated defendants, it is an undeniable counterweight to the principle of uniformity that a judge should view each defendant as having their own story—good or bad—that pushes against the notion of perfectly equal and predictable sentences.

Enter the more challenging philosophical moment: what about a defendant who is convicted of less serious charges but who is specifically acquitted on the Capone-like greater offenses? Can a federal judge, in relying upon his or her Constitutional ability to make factual findings by only a preponderance of the evidence, hold a defendant accountable for conduct which the jury could not accept beyond a reasonable doubt? For the moment, the answer is largely yes – federal judges can and do consider acquitted conduct all the time. There is, however, an underlying concern to this approach that may be getting more general traction – what if federal prosecutors wielding the “Al Capone and Tax Evasion” mentality are targeting people who, well, are not Al Capone? The white hat worn by Elliot Ness in pursuing Al Capone may have gotten a little dusty and dirty over the years.

And then came the case of Dayonta McClinton v. United States, in which young Dayonta was accused of killing his friend in a spat over robbery proceeds. At trial, the jury acquitted Dayonta of murder but convicted him of the robbery. The sentencing guidelines, which provide an advisory starting point for judges looking for consistency, called for roughly five to six years of imprisonment for robbery. But when the sentencing judge deemed the acquitted murder to be fair game, the higher guidelines justified imposition of a 19-year prison sentence.

The case wound its way to the Supreme Court, where the petition for certiorari was denied a few weeks ago. The interesting aspect of what is typically a very terse denial, is that the Justices took the time to issue statements about this acquitted-conduct debate. Justice Sotomayor’s statement clearly took the concept to task, pointing out that, “With an acquittal, the jury as representative of the community has been asked by the State to authorized punishment for an alleged crime and has refused to do so.”[1] Justice Alito appeared to view Justice Sotomayor’s statement as unnecessary and one-sided, concluding his opinion with “because my colleagues have laid out some of the arguments in favor of one side, I thought it appropriate to outline some of the countervailing arguments.”[2] However, all of the Justices appeared to agree on one important fact – the U.S. Sentencing Commission is studying the acquitted-conduct sentencing issue and is expected to issue guidance in the near future. The very fact that the Commission is even addressing the issue makes me think change is coming. Although any change would be much too late and too limited to help Alphonse, it may come in time to protect the next Dayonta McClinton from the Pyrrhic victory he “won” at trial and lost at sentencing.

[1] McClinton v. United States, 600 U.S. ___, 143 S. Ct. 2400, 2402 (2023).

[2] Id. at 2406.

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In Counterman v. Colorado, 600 U.S.   , (2023) the Court settled a fundamental First Amendment issue implicated in the prosecution of threatening communications. A country singer residing in Colorado had been the subject of a stream of unwanted Facebook messages, spanning three years. Many of the messages were clumsy and essentially harmless, but a few appeared to cross over into either reflecting surveillance of the victim or threatening harm.¹ At trial, the state obtained its convictions for threats and stalking based entirely on Counterman’s stream of unwanted messages.

Colorado courts had previously ruled that for communications to fall outside of the free speech protection of the First Amendment, the comments would have to be considered as threats by a reasonable person, i.e., an objective standard. The trial court followed that precedent. Other case law had focused on the subjective intent of the author. See, e.g., Virginia v. Black, 538 U.S. 343, 359 (2003) (holding that true threats are “serious expression[s] conveying that a speaker means to “commit an act of unlawful violence.”). The Supreme Court, then, felt the need to finally clarify precisely what it means when it pointed out that “True threats of violence are outside the bounds of First Amendment protection and punishable as crimes.”² In doing so, the Court would put to rest a long-simmering issue about objective vs. subjective in this context—one I mentioned over six years ago in “When a Threat Becomes a Crime.”³

The majority opinion, authored by Kagan and joined by Roberts, Alito, Kavanaugh and Jackson, ruled that threats must include a criminal mens rea to be unprotected speech, although that proven mental state need not rise to the level of willfulness or specific intent. Indeed, the majority concluded that recklessness was a sufficient state of mind to support a true threat prosecution. Interestingly, the Court acknowledged that imposing a subjective standard will always be more difficult to successfully prosecute than an objective one, stating, “[s]uch a requirement comes at a cost: It will shield some otherwise proscribable (here, threatening) speech because the State cannot prove what the defendant thought.”⁴

This then leads to the debate-within-the-debate, or at least signs of the seemingly unrelated battles forming up on the horizon. Justice Kagan and the majority justify their mens rea imposition by turning to other areas of unprotected speech, specifically incitement and defamation. In citing the “actual malice” standard of New York Times v. Sullivan, 376 U.S. 254 (1964), is the majority underscoring their view that stare decisis will weigh heavily if anyone were to take on that case’s highly restrictive view of when public figures can successfully pursue defamation claims? Justice Barrett’s dissent accuses the majority of “cherry pick[ing]”⁵ part of Sullivan to needlessly contract recourse for harassment victims, and her partner in dissent, Justice Thomas, took the time to add his own dissent to again call for revisiting of Sullivan, dismissively calling the majority’s opinion and reliance upon Sullivan a “policy-driven decision[] masquerading as constitutional law.”⁶ Is the Court anticipating that a defamation case involving former President Trump might wind its way to the Court? If so, the majority might be using Counterman for the additional, if subtle, message that it was not inclined to revisit Sullivan’s reasoning and impact, roughly 60 years after it became the law of the land.

Similarly, the majority turns to incitement cases in support of a subjective standard in threats prosecutions. Here, the parallel draws less fire from the dissent, as the notion that incitement prosecutions require proof of a specific intent to produce imminent disorder⁷ is less controversial (as well as less dispositive) as to the issue at hand. But it is of some interest that incitement precedent is even in the mix, as Special Counsel Jack Smith continues to lead a criminal investigation relating to the events of January 6, and where many pundits point to relatively unused insurrection and incitement statutes as being used to target the former president.

Refining and restricting threats prosecutions in the way that the Supreme Court did this week will have an interesting practical effect—ambiguous or mentally imbalanced phrasing that nonetheless has a disturbing impact on the recipient increasingly will fall into the category of protected speech when it comes to prosecutorial charging decisions, as well as to the jury instructions provided by trial courts. The frequent white collar case battleground of subjective intent will now spill into federal and state threats prosecutions, where implausible or grandiose threats may be recategorized as unfortunate, but free, speech.

¹ For example, “Staying in cyber life is going to kill you,” and “You’re not being good for human relations. Die.”

Counterman v. Colorado, No. 22-138, 2023 WL 4187751, at *2 (U.S. June 27, 2023)

² Id.

³ James Trusty, When a Threat Becomes a Crime, IFRAH LAW (Mar. 2, 2017), https://www.ifrahlaw.com/crime-in-the- suites/threat-becomes-crime/.

⁴ Counterman, 2023 WL 4187751, at *4.

⁵ Id. at *21 (Barret, J., dissenting).

⁶ Id. at *19 (Thomas, J., dissenting).

⁷ Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam); Brandenburg v. Ohio, 395 U.S. 446 (1969).

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The admissibility of scientific—and certainly psychiatric—expert testimony and methodology in criminal cases has been a recurring battlefield ever since courts across the country accepted their “gatekeeping” function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Courts have had pretrial hearings regarding the reliability of all sorts of forensic testing—including evolving methods of DNA analysis, gunshot residue, bullet-lead “batch match” comparison, and motor vehicle accident reconstruction, to name a few. A Daubert hearing is designed to allow the judge to assess the validity of the particular forensic test within the scientific community as well as the reliability of the testing (and tester) as applied to the particular trial. Two related principles come together in this context. First, that as the particular science becomes generally accepted, there is no longer a need to hold Daubert hearings (ex. fingerprint identification, and radar/speed guns). Second, when a hearing is necessary, it logically follows that the opposing side should be able to obtain methodological discovery, or the hearing is essentially a one-sided dress rehearsal for trial.

One of the latest tech battles implicates serious concerns as we enter the world of Artificial Intelligence. In New Jersey v. Francisco Arteaga,¹ the defendant was accused of armed robbery, and the two witnesses from the store picked a photograph of the defendant from a photographic array. The court took little issue with the process of presenting the array to the witnesses, finding the defendant’s challenge failed to meet the high standard for suppressing an extrajudicial identification, that there was a “substantial likelihood for irreparable misidentification.” But the photo of Mr. Arteaga was a different story, and one that takes us to the cutting edge of investigative technology, facial recognition technology (“FRT”). Faced with a relatively grainy and murky surveillance video, the detectives generated a still image and sent it to the New Jersey Regional Operations Intelligence Center for facial recognition analysis. The New Jersey investigator informed the detectives that he could not provide a match for the still photo, but that if he could receive a better image he would try again. The detectives instead sent all of their footage to the New York Police Department Real Time Crime Center (“RTCC”), where a detective there said their analysis showed a “possible match” to the defendant. The RTCC database photo of the defendant was then provided to the investigators, who used it in the array presented to the witnesses.

The defense provided the prosecution with a lengthy list of FRT-related discovery demands, of which only a couple of responsive items were provided to them before trial. A good number of the requests seemed perfectly tailored to the reliability issues that require pretrial resolution under Daubert. Error rates for the algorithms used in searching for matching photos, for example, are standard fare for new technological procedures. The court noted that “[p]oorer quality images can be edited for lighting or color correction, to enhance detail, or even to change facial expression.”² So while the computerized search for matches relies heavily on precise measurements of facial structure, the investigator conducting the search can alter the initial photo’s contents. This kind of procedural subjectivity invites scrutiny and could even lead to exculpatory disclosure obligations under Brady.

The New Jersey appellate court felt strongly that the defendant “must have the tools to impeach the State’s case and sow reasonable doubt”³ and ordered full compliance with the original discovery request regarding FRT. It also strongly hinted that the trial court should entertain a Daubert hearing because of the novel nature of this technology. Mr. Arteaga, then, gets another bite at the apple.

In other areas of expert testimony, a robust challenge to reliability may not lead to exclusion, but it can curtail the ultimate conclusion of the testifying expert. For example, the Maryland Supreme Court recently addressed the long-established concept of firearms comparison, by which an expert tries to match (or exclude) a spent bullet with a recovered firearm.⁴ The Supreme Court painstakingly reviewed the trial court’s 4-day Daubert hearing and granted a new trial not on the overall state of the science, but because the expert’s opinion was “unqualified.” Specifically, the expert testified that the recovered bullet had been fired at some point by the recovered gun. Uncomfortable with the powerful impact an expert opinion can have on a jury—particularly when unaccompanied by any hedging language like “to a reasonable degree of scientific certainty” or “consistent with…”, the Court handed Mr. Abruquah at least a temporary reprieve where at the re-trial the expert will have to hedge his stated certainty with some form of qualifying language.

Ultimately, a defense challenge as to how a photograph came to be inserted in an array is a fairly weak hand to play. Even if the FRT process is fraught with error or manipulation, there is an inherently attenuated nature to a witness identification of the photo as well as of the defendant in court, so do not expect a “fruit of the poisonous tree” argument to effectively ban the use of this latest investigative technology from criminal trials. And unlike the situation in Maryland, the issue in New Jersey’s retrial does not lend itself to judicial modification of the non- expert testimony of eyewitnesses.

The defense in Arteaga will be armed with more discovery, but at the end of the day they are mostly arguing reasonable doubt, hoping for the “paw print” moment that irreverently mocks the government’s novel tactic while not preventing its admissibility.

¹ Superior Court of New Jersey, Appellate Division, Docket No. A-3078-21, approved for publication on June 7, 2023.

² Arteaga, at 29, citing Clare Garie, Garbage In, Garbage Out: Face Recognition on Flawed Data, Geo. L. Ctr. On Priv. & Tech. (May 16, 2019) https://www.flawedfacedata.com/

³ Arteaga, at 36.

⁴ Kobina Ebo Abruquah v. State of Maryland, No. 10, September Term, 2022.

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By way of background, the college admissions scandal became public in 2019, when it was revealed that wealthy and well-connected families worked with a college admissions counselor named Rick Singer, to obtain their children’s admission to prestigious universities such as Harvard and USC. Specifically, the parents worked with Singer to give money to the schools or their athletic program. In exchange, Singer would ensure that university employees would secure their children’s admission as athletic recruits – despite the fact that most of the students lacked the requisite athletic ability to play at the collegiate level, and accordingly, never did in fact play for the teams. For example, the government alleged that Abdelaziz gave Singer $300,000 to get his daughter into USC as a basketball recruit, even though she had never played varsity basketball on her high school team.  Other parents created fabricated student profiles by supplying staged and photoshopped photographs of their children engaged in athletic activity. Singer referred to this arrangement as the “side door” admission process.

The government charged Abdelaziz and Wilson with multiple offenses based on their transactions with Singer. Specifically, the government alleged that Abdelaziz and Wilson conspired with both Singer and other parents involved in the “side door” scheme to commit (1) honest services fraud, by depriving the universities of the honest services of their employees; (2) property fraud, by depriving the universities of property in the form of “admissions slots,” and (3) federal programs bribery.  Wilson was also charged with tax-related offenses.  In October of 2021, a jury found both Abdelaziz and Wilson guilty on all counts.

On appeal, the First Circuit vacated the defendants’ mail and wire fraud conviction, including the related conspiracy convictions, holding that the “honest service fraud theory fails as a matter of law and that the government’s arguments with respect to the property theory were not adequate to support the jury instructions given at trial.” United States v. Abdelaziz, 68 F.4th 1, 27 (1st Cir. 2023).

With regard to the honest services fraud theory arising under 18 U.S.C. §§ 1341, 1343, and 1346, the government was required to prove that the defendant had devised a scheme or artifice to defraud others of money, property, or intangible rights – including the intangible right of honest services. The government argued that defendant’s conduct constituted honest services fraud under a broad interpretation of bribery as defined by other federal statutes, such as 18 U.S.C. § 666. The Court rejected this argument, relying on the Supreme Court’s decision in Skilling v. United States, 561 U.S. 358 (2010) to conclude that the defendants’ conduct was beyond the scope of the definition of a classic bribe or kickback.

In short, statutory and case law did not support the conclusion that “payments to the purportedly betrayed party constitute ‘bribes’ as that term is traditionally understood or used in Skilling.”  Id. at 29. Further, the Court reasoned, under the government’s theory, “[a]n ordinary person would not be put on notice that a payment to a purportedly betrayed party was bribery,” as contemplated by the court in Skilling. Simply put, you can’t be charged with fraud for bribing the alleged “victim” of your scheme.

The Court also rejected the Government’s property fraud theory of liability, under which it was required to prove “that ‘the object of the fraud . . . [was] [money or] property in the victim’s hands.’” Id. at 33 (alterations in original). The government argued that the “property” allegedly obtained were the “admission slots.” Id. The Court rejected this argument, concluding both that (1) admission slots do not always qualify as property; and (2) the district court’s jury instructions erred in stating that admissions slots categorically constituted property of the universities. The government’s “highly general argument,” the Court explained, “would criminalize a wide swath of conduct,” such as “embellishments in a kindergarten application.” Id. at 38.

Finally, the Court addressed the defendant’s argument that the conspiracy charges relied on an impermissible “rimless wheel” conspiracy theory and allowed the prosecution to present inflammatory evidence to the jury of other defendants’ obviously culpable conduct in which Wilson and Abdelaziz played no part. The defendants argued that the evidence was, at most, sufficient to show that they engaged in a conspiracy to get their own children into the university — not that they conspired with the other defendant— parents to get their children admitted.  Simply put, there was no agreement amongst the various defendant-parents to engage in the admissions scheme: “[W]hatever agreements might have existed among Singer and other parents, the evidence would not allow a reasonable jury to find that each of Abdelaziz and Wilson agreed to conspire with those parents.” Id. at 41.

The Court agreed with the defendants, concluding that although the various defendant-parents shared similar goals (getting their own child into a prestigious university) they did not share a common goal of getting the other defendant-parents’ children admitted. There was no evidence to support an inference that the defendants had a goal beyond benefiting themselves. Rather, the defendants were “indifferent or even adverse to whether other parents’ children were admitted to the school to which they sought admission and had no interest in what happened to parents seeking admission at other universities.” Id. at 46.

So where does this leave the more than fifty other defendants implicated in the Varsity Blues scandal? Most have already pled guilty, and many have even served time in prison. Perhaps most well-known, actresses Lori Loughlin and Felicity Huffman both pled guilty for their involvement in the scheme and were sentenced to two months and fourteen days in prison respectively.

It seems unlikely that these defendants will attempt to, or be able to, withdraw their guilty pleas. As an initial matter, withdrawing a knowingly and voluntarily entered guilty plea is no easy task. Generally, after sentencing, a guilty plea may be withdrawn only to correct a “manifest injustice.” This has been described as a “heavy burden.” United States v. Mariner, 383 F.2d 444, 445 (3d Cir. 1967).

Further, for those that have already served their period of incarceration, the costs and hassle of litigating the withdrawal of a guilty plea may not be worth the effort. Simply put, for many, it may make sense to try to move on from the scandal rather than open up Pandora’s box of litigation. Given that many of the defendants were both wealthy and well-connected, it seems unlikely that their convictions will act as a significant barrier to their future endeavors. Further, the facts and circumstances of each defendant’s involvement in the scheme differ significantly, so that the First Circuit’s rulings may not ultimately offer broad legal relief to the other defendants.

Importantly though, this decision may influence future charging decisions made by federal prosecutors. Indeed, the First Circuit’s decision sends a clear message – the government should refrain from broadly construing federal fraud statutes. Perhaps the First Circuit’s decision will inspire a new level of restraint, requiring prosecutors to think twice before seeking to criminalize broad categories of private conduct not intended to be covered by federal criminal statutes. Simply because a defendant’s conduct was dishonest or undesirable, does not mean it was criminal.

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The securities fraud charges, unsealed on December 13th, name seven defendants with an eighth defendant charged with aiding and abetting the alleged scheme. [1] In the SEC’s press release, Joseph Sansone, Chief of the SEC Enforcement Division’s Market Abuse Unit, said,

The defendants used social media to amass a large following of novice investors and then took advantage of their followers by repeatedly feeding them a steady diet of misinformation . . . . Today’s action exposes the true motivation of these alleged fraudsters and serves as another warning that investors should be wary of unsolicited advice they encounter online. [2]

The action comes among an outpour of criticisms and calls for action against popular figures who have publicly promoted various financial products that have since taken a dive. A proposed class-action lawsuit filed this week, for instance, seeks to hold Tom Brady, Gisele Bündchen, and nine other celebrity endorsers of the cryptocurrency exchange FTX financially responsible for losses suffered as a result of the firm’s bankruptcy and related concerns. [3] 

In general, the ubiquity of social media has facilitated the proliferation of influencers in practically every conceivable category and niche, from cars to computers to sports and medicine. An increasingly prominent instance of this phenomenon includes self-proclaimed finance or investment gurus flaunting their wealth to accrue a following, which they then work to monetize. This project often includes the offering and sale of educational courses or access to investment forums, in which purchasers access investment recommendations or tactics promoted by the influencer. While some may offer bona fide lessons for prospective-investor followers, investors need to be wary of market manipulators exploiting their followers’ eagerness for their own gain.

The SEC’s filing this week illustrates the risk. The agency writes that in this case, the seven primary defendants cultivated hundreds of thousands of followers on Twitter—with more than 1.5 million followers all told—and numerous acolytes in Discord servers by promoting themselves as successful traders. Meanwhile, the eighth defendant hosted a podcast promoting his associates as expert traders, offering them another platform for their proclamations of trading prowess. On Twitter, the defendants often made grandiose claims about their own wealth, advertising the possibility of making thousands of dollars per day and living a luxurious lifestyle.

But the defendants’ performance was not what it seemed.  

As the complaint alleges, the seven primary defendants purchased specific stocks, promoted those stocks to their social media followers by signaling that they were buying, holding, or adding to their positions, and when share prices and/or trading volumes rose, they regularly sold their shares without disclosing their intent to do so in their promotional efforts. The SEC’s complaint highlights a few instances of such manipulation, covering companies across the tech and pharmaceutical sectors.

The most illustrative example of their alleged market manipulation efforts concerns Camber Energy, Inc. (“CEI”). At various times from August to October 2021, several defendants allegedly established positions in CEI, promoted the company’s stock to their users, and sold their deceptive positions. On August 3 and 4, 2021, three defendants purchased more than two million shares of stock at $0.46 and $0.47 per share. [4] At 3:37 p.m. on August 4, one defendant tweeted and posted to Discord about his position in the company: “Volume is starting to come into pennies this week and this is very cheap. On the daily chart we have formed a double bottom. Last time it was at these prices we went to $3. So that leaves a lot of range.”[5] A second defendant then chimed in on the purportedly low price point. Over the rest of the afternoon and part of the next morning, the three defendants gradually unloaded, reloaded, and dumped their positions entirely while publicly urging their followers to continue purchasing under the pretense that they would be holding at least until $1. From August 3 to 5, the three defendants made trades netting them approximately $55,000 in profit. Two defendants engaged in similar tactics over a more extended period of time through buying and selling CEI stock—between September 1 and October 5, 2021, one defendant made more than $4.3 million trading that stock alone.

On several other occasions, defendants would even lie to followers about losing money on a particular stock when, in fact, they had profited, apparently in order to preserve their followers’ trust in their recommendations and obfuscate the true nature of their promotions. For instance, one defendant claimed in a tweet that he lost money trading on ABVC Biopharma Inc. (“ABVC”), which was one of his previous recommendations to followers: “$ABVC Strange action today . Bag holder here [waving hand emoji] honestly doesn’t make sense. Ran from $3.30 to $4.40’s yesterday and to $4.20’s today. But faded due to shorts and scalpers. I’m sure some made money. But I hold my word and don’t dump on anyone.” [6] But according to the complaint, he actually dumped his shares and made approximately $68,690 the day he posted the tweet. [7] In another example, another defendant claimed to have lost $20,000 on American Resources Corp. after promoting it, when he actually made more than $7,000 dumping shares that day alone in addition to other profitable trades from the previous day. [8]

All the while, according to the SEC, “in private chats and surreptitiously recorded conversations, [the defendants] bragged and laughed about making profits at the expense of their followers.” [9]

Each defendant faces a maximum penalty of 25 years in prison for conspiracy to commit securities fraud and for each charged count of securities fraud if convicted. A federal district court judge will determine any sentence after considering the relevant U.S. Sentencing Guidelines and other statutory factors. [10]

The SEC will likely combat a defense of “puffery” or “corporate optimism” in its attempt to establish fraud, considering that the defendants disclaimed on their Twitter accounts that they were not providing stock recommendations or financial advice, albeit despite simultaneously evincing their understanding that followers would act on their promotional tweets. [11] Indeed, in so doing, the SEC will need to demonstrate that the defendants’ statements were not a mere matter of exaggeration by which no reasonable investor could be misled, but that the statements were crafted to do just that. In all likelihood, the SEC will likely try to establish that the defendants’ alleged strategy depended on it.

[1] https://www.justice.gov/opa/pr/eight-men-indicted-114-million-securities-fraud-scheme-orchestrated-through-social-media 

[2] https://www.sec.gov/news/press-release/2022-221 

[3] https://www.washingtonpost.com/business/2022/12/14/ftx-class-action-lawsuit/  

[4] https://www.sec.gov/litigation/complaints/2022/comp-pr2022-221.pdf. Pg 18.

[5] Ibid. Pg 18.

[6] Ibid. Pg 16. 

[7] Ibid. Pg 16.

[8] Ibid. Pg 17.

[9] https://www.sec.gov/news/press-release/2022-221 

[10] https://www.justice.gov/opa/pr/eight-men-indicted-114-million-securities-fraud-scheme-orchestrated-through-social-media 

[11] https://www.sec.gov/litigation/complaints/2022/comp-pr2022-221.pdf 

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The Conviction Review Unit (“CRU”) in Gonzalez’s office spent 10 months reviewing every Brooklyn conviction in which the 13 former officers were involved. The Unit flagged for dismissal every case in which one of the officers served as the primary witness, although it declined to flag around 100 convictions that stemmed from other corroborating evidence in support of the officer’s testimony. The 378 convictions at issue in the DA’s request include 47 felonies and 331 misdemeanors, most of which were low-level drug and traffic violations. The dismissal would be the sixth-largest mass exoneration in U.S. history, according to data collected by the National Registry of Exonerations. 

Mass dismissals of this sort illustrate an important point concerning prosecution and criminal justice reform: in some circumstances, basing a case solely on police testimony may be insufficient for a prosecutor’s office to ensure that a conviction is proper. And further, that a small number of corrupt officers can have a dramatic impact on both the number of innocent persons convicted or jailed as well as the general appearances of justice within a local criminal justice system.

As such, prosecutors need to ensure that witness testimony is properly corroborated by other evidence in order to minimize the risk of wrongful conviction, whether it be as a result of police misconduct, mistaken identification, etc. Indeed, as much as is reasonably possible given the circumstances surrounding the allegation, the evidence should be of a quality other than that which could also be the result of misconduct by the witness. Otherwise, such testimony is the fulcrum on which the entirety of a case, and therefore a life, rests. Too much is at stake to decide the course of a person’s life (as well as many others’) on a mere “he said, she said,” even if that witness is a trusted police officer. This is so because the issue is not a matter of trust per se but the truth and being able to prove and verify the truth as such. 

This prosecutorial imperative looms especially large considering the extent to which prosecutors are often unable to access police personnel files, which contain instances of officer misconduct. In some jurisdictions, personnel files are freely available to prosecutors, defendants, and even the public, but in others, state laws and local policies make them so confidential that prosecutors cannot access them, which means that Brady material is routinely suppressed. [2] Even specific institutional dynamics between and within prosecutors’ offices and police departments can affect the availability of Brady material, too. [3] The Supreme Court’s Brady doctrine—named after Brady v. Maryland, 373 U.S. 83 (1963)—requires prosecutors to disclose materially exculpatory evidence to the defense. Because of the complex factors preventing prosecutors from accessing, much less disclosing, evidence of police misconduct that the defense could use to attack an officer’s credibility as a witness, which could make the difference between acquittal and conviction, Brady’s application varies widely depending on where the defendant is tried. [4] Despite various attempts at reforming the issue, many prosecutors still maintain that the system poses too many obstacles in obtaining evidence of police misconduct, which in turn prevents them from handing over such evidence as Brady material to the defense. 

Accordingly, due diligence requires prosecutors to corroborate police officer testimony with other evidence prior to basing an entire case on said testimony—and defendants’ lives depend on prosecutors meeting that standard of diligence.

In any case, the officers’ crimes responsible for the Brooklyn dismissals highlight the vast implications of police misconduct, including the necessity for police and police departments to engage in some form of internal monitoring. Just as CRUs conduct extrajudicial, fact-based review of secured convictions to investigate plausible allegations of actual innocence—in essence, prosecutors re-investigating their colleagues’ cases—so, too, do police departments need to conduct good faith and impartial reviews of any officer mistakes or misconduct allegations in order to eradicate injustice and corruption whenever possible. [5] Without adequate police self-regulation, prosecutors may find themselves unable to rely on officer testimony with the same confidence that they have in the past, thereby limiting the role officers play in the criminal justice system. 

Otherwise, the potential costs to many innocent individuals’ lives may be too great, especially for those who are not lucky enough to receive an exoneration despite a plausible claim of innocence. In total, the National Registry of Exonerations records only 30 group dismissals across the country, and two groups from Massachusetts account for around 32,000 defendants out of the 35,000 whose cases have been dismissed via mass exoneration. [6] Defendant-level data further underscores the rarity of exonerations in the United States: Since 1989, only around 3,200 convicted defendants have obtained exonerations—and those defendants wrongfully served a total of approximately 27,000 years in prison.

When uncovered, wrongful convictions can take years, if not decades, to correct. And even after an exoneration, it can be extremely difficult for individuals (and their loved-ones) to recover the lives they had beforehand. Years spent imprisoned are lost in easily imaginable ways because life does not pause for the wrongfully incarcerated. Instead, they merely lose the opportunity to live it well as it passes. The roles and accompanying responsibilities an individual holds in the lives of others’—parent, child, friend, mentor, and so on—go unsatisfied, an absence which is undoubtedly felt by the wrongfully imprisoned and loved-one alike. And without meaningful criminal justice reform to account for police misconduct, especially with the handling of Brady material, many individuals will continue to wrongfully serve years of their life in prison.

[1] http://www.brooklynda.org/2022/09/07/brooklyn-da-eric-gonzalez-to-dismiss-378-convictions-that-relied-on-13-officers-who-were-later-convicted-of-misconduct-while-on-duty/ 

[2] https://www.stanfordlawreview.org/print/article/bradys-blind-spot-impeachment-evidence-in-police-personnel-files-and-the-battle-splitting-the-prosecution-team/

[3] Ibid.

[4] Ibid.

[5] For information on CRUs: https://www.law.upenn.edu/live/files/5522-cru-final 

[6] The National Registry of Exonerations’s Groups Registry was launched in October 2020, and existing cases are still being added. See: https://exonerations.newkirkcenter.uci.edu/groups/group-exonerations

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The right to a Speedy Trial is embedded in the Sixth Amendment’s trial guarantees, and federal prosecutions also operate under the rubric of 18 United States Code § 3161 et seq, which provides that an indicted criminal case shall be brought to trial within 70 days. The constitutional right is not wedded to a specific time-to-trial requirement, but its vagueness in that regard generally means its violation is difficult to establish. The statutory speedy trial right, however, is easier to implicate but rarely leads to a lasting victory for the defense, in that its violation most often leads to dismissal “without prejudice,” which means the government simply reindicts the case as if it is brand new.

All told in the case of Mr. Pikus, there would be a 3 ½ year delay before trial. For many weeks and months, the defense did not object to the delays, but most of the long stretches of inactivity were due to the government struggling to meet its discovery obligations. While the task force approach to prosecution has many benefits, it has the potential to greatly complicate the prosecutor’s ability to comply with discovery demands. If the judge thinks specific state or federal agencies are part of “the team,” then the obligation to dig up reports and information from those agencies to satisfy Jencks,[1] Giglio[2] and Brady[3] disclosure requirements can become challenging.

The trial court held numerous status conferences to be updated on the case’s progress during those years. At the initial appearance, the Court excluded the time between appearances from speedy trial calculations, citing the case’s complexity and that the jointly-accepted exclusion of these days was in the best interest of the parties and outweighed the public interest in a speedy trial. As the hearings began to rack up, the Court would announce the exclusion based upon a) designating the matter as a complex case, b) the parties engaging in plea negotiations, and c) pretrial motions are pending—all acceptable bases for “stopping the clock” under a speedy trial analysis. The Court drifted away—for over two years—from announcing specific findings as to why the need for delay trumped the public interest in a speedy trial.

The Circuit Court looked carefully at the case chronology and reasons for delay, eventually concluding that the overall delay was extraordinary, and that two particular periods of delay, by themselves, each exceeded 70 days. The auto-pilot nature of the trial court’s justifications did not sit well with the 2^nd Circuit. The trial judge neglected to weigh the public interest component of speedy trial on most of the occasions, and never articulated specific reasons why the public interest was outweighed by the need for delay. At various times, the judge indicated that there were pending motions when, in fact, there were none. And the exclusion of time to allow for plea negotiations was similarly unfounded. Even one of the most common and routinely-used bases for time exclusion—that the case is complex and requires more preparation—was viewed as unsupported by specific findings.

Experienced federal practitioners know that in the context of statutory speedy trial violations, the mandatory “dismissal” sanction is often illusory. As was the case here, the appellate court reversed the conviction and remanded the matter for the trial court to determine the often-critical issue of whether dismissal is “with prejudice” (final) or “without prejudice” (enabling re-indictment). In the absence of extraordinary foul play by the government, we frequently see re-charging of the case (or at least a new plea agreement) and a big “do-over” for a case with a statutory speedy trial violation but not a Constitutional one.

The record here is so replete with government-caused delay and sloppy judicial record-keeping that there is a real likelihood that Aleksander may feel Great when the court decides that issue of prejudice. Either way, the broader lesson for litigants is that judges need to be precise, specific, and aware of the co-equal status of a defendant and the public when it comes to tolling speedy trials.

[1] Referring to prior statements of witnesses.

[2] Referring to impeachment materials relating to government witnesses.

[3] Referring to exculpatory or mitigating information.

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Pretrial Motions Process and Evidence

As the public attention and political drama on the case fizzled and the case wound its way through the pretrial motions process, a different story began to emerge than the one celebrated by law enforcement officials upon the arrests. Discovery materials, such as consensually recorded conversations between FBI informants and the theoretical kidnappers, began to see light of day in defense motions. Casual readers would struggle to remember which guys are the supposed bad guys, the informants or the defendants. In fact, the informants began to compete with each other to come up with the most sensational accusations that could be made. When the band of beer-drinking, angry, gun enthusiasts acted dismissive of harming the Governor, the informants injected the idea of “simply” murdering her instead—to the loud rejection of the nominal bad guys. According to the defense attorneys, every time the defendants seemingly walked away from their grandiose idea of “trying” Judge Whitmer for treason, the FBI’s informants upped the ante with promises of weapons, war and success.

The recent verdict seems to have borne out the defense contention that the FBI mishandled its over-aggressive informants, with two defendants being acquitted and the jury hanging on the other two trial defendants. Now, curiously, the Assistant U.S. Attorney who gave the government’s opening statement at trial has abruptly stepped down from the case. And Governor Whitmer’s spokespeople, eager to remind everyone that everything remains Trump’s fault, largely ignored the jury verdict in announcing that the case was “the result of violent, divisive rhetoric that is all to common across our country.”¹

Issues with Investigations

But as with a lot of criminal trials, the Devil is in the details. For example, a Michigan FBI agent who was interrogating an informant in this case remarked, “We have a saying in my office. Don’t let the facts get in the way of a good story.”² Perhaps the statement was simply glib or out of context, but maybe it goes to a greater deficiency within the criminal justice system—tunnel visioned investigations that go uncorrected by prosecutors.

To be sure, investigating extremist groups is a maddeningly delicate walk—if investigators move too soon, they are accused of simply disrupting “big talkers” who enjoy venting about their political or religious enemies, often while toting a full cooler of beers and maybe even shooting big guns in the middle of the local forest. If they wait too long, well, people might get killed. Whenever we hear that a criminal was “on the FBI watchlist,” the focus suddenly turns away from a man intent on murdering random subway passengers and on to the FBI’s investigative process. So, I am well aware that these cases are challenging, but the Whitmer Conspiracy trial exposes problems beyond the typical Goldilocks criticism of too soon or too late. Informants had the blessing of their handlers to urge the conspirators to change direction and actually murder the governor. What if any one of the listeners decided this was their ticket to become King of the Michigan Wolverines, and simply ran off and got it done? What if a listener “out-sourced” that hit job to a friend outside the immediate circle of conspirators? For the FBI in Michigan, it is better to be lucky than good, I guess.

Handling informants can be like snake handling. Long stretches where everything goes fine, if uncomfortably intertwined, and then they bite. Agents know this. Prosecutors know this. But the informants in this case had carte blanche to do crazy things, and they did so in a heavy-handed enough way for jurors to outright acquit half of the Wolverine team on trial.

Prosecutorial Obligations

The check on this recklessness by informants and agents is the prosecutors. Line Assistant U.S. Attorneys had to get this high-profile case approved by supervisors, and likely the U.S. Attorney as well. We give prosecutors discretion all the time, hoping that their judgment and experience allow them to make the right decisions. When they fail to question bad FBI behavior, when they approve an indictment that dramatically overstates criminal complicity, or when they doggedly insist on re-trying a case that never should have been brought, they risk creating a new set of rules—one that no longer trusts prosecutors to fairly and firmly seek justice –and they risk the backlash in public sentiment that was apparently felt acutely by 12 jurors in Grand Rapids, Michigan

[1] Chief of Staff JoAnne Huls, https://www.pbs.org/newshour/nation/following-verdict-in-whitmer-kidnapping-case-some-see-freedom-and-others-danger
[2] FBI SA Henrik Impola, https://www.woodtv.com/wp-content/uploads/sites/51/2021/12/Whitmer-kidnapping-trial-defense-motion.pdf#page=3

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The case against Ceasar was not built in a day. The government obtained evidence that Ms. Ceasar was not only disseminating pro-ISIS propaganda on-line, but that she would connect likeminded Americans to ISIS travel coordinators for helping them join the fight in Syria. Ceasar was arrested at the airport, when on her way to marry an ISIS member in Sweden and then presumably to travel on to Syria. She was detained for over 16 months, but then released on strict conditions of pretrial release. Unfortunately, Ms. Ceasar returned to her on-line criminal participation, this time using a pseudonym. When the FBI came knocking, she repeatedly lied about her renewed activity as well as her deletion of thousands of texts and social media postings.

On the more sympathetic side of the ledger for this defendant was the horrific fact that she was routinely sexually abused by her father from age 4 to age 11, that her mother had gone blind, and that after spending many years in foster care, Ceasar had been subject to three “religious” marriages with physically abusive older men. Most recently, she had suffered a miscarriage and was hospitalized for suicidal ideation.

Ceasar pleaded guilty to material support of a terrorist organization, and her applicable advisory sentencing guideline range was a whopping 360-600 months. Judge Jack Weinstein, the iconic judicial rebel who passed away this summer at the age of 99, was well known for bucking the rigidity of federal sentencing guidelines. Although his decisions have been reversed a good number of times, he was widely respected as being principled, humble, innovative and honest in his approach. In this case, Judge Weinstein held a three-day sentencing hearing, complete with government and defense experts opining about whether Ceasar posed a risk upon release and describing her mindset regarding the horrific tenets of ISIS. Of particular interest to the judge was the fact that the U.S. has no established de-programming resources to directly address the thorny issue of recidivism in a terrorism context. The government correctly pointed to Ceasar’s return to ISIS propagandizing while under the watchful eye of the Court (and while pending what could have resulted in a massive period of imprisonment).

Judge Weinstein imposed a sentence of 46 months for the material support charge, adding only two months for obstruction and committing an offense while on release. He opined that she was well on her way to rehabilitation and that this sentence would “save her as a human being.” Enter the Second Circuit.

The Second Circuit reversed and remanded the case for a new sentencing. The Court sprinkled generous praise into their decision about Judge Weinstein’s integrity, but they determined that his over-emphasis on Ceasar’s rehabilitation needs (and the absence of deprogramming resources) was an abuse of judicial discretion. As federal practitioners are well aware, the U.S. Code delineates a wide range of factors for the court to consider at sentencing at 18 U.S.C. Section 3553(a), and while those factors include rehabilitation, they also require the court to weigh concepts like specific deterrence, the severity of the crime, and the likelihood of recidivism.

One of these components of federal sentencing that both prosecutors and defense attorneys routinely address is the notion of comparable cases. Reminding the sentencing judge of how similarly situated defendants were treated in other cases is a recurring exercise with both parties trying to nudge the court in their direction with either supportive examples from other imposed sentences or at least important distinctions from the opponent’s listed cases. In Ceasar’s case, the comparison game was highlighted by the recent sentencing of attorney Lynn Stewart. Ms. Stewart was a high-profile attorney who was convicted of crossing the line – passing messages between terrorists while representing one who was subject to special communication bans while in prison. Stewart’s guidelines called for a 30-year sentence, but the judge initially gave her 28 months. Like Ceasar’s case, the appellate court found the term to be unsupported and “shockingly low,” resulting in a remand and new sentencing. Stewart received 120 months, which is obviously significantly below 360 months, but the decision was upheld on appeal.

So what are we to take from Ceasar’s downfall in the Second Circuit? Are punitive appellate barbarians at the gate of individualized justice? I think not. The general deference afforded to sentencing judges who vary from the established guideline range is still intact. The appellate judges do not regularly relish deeming a lower court’s particularized decision on sentencing as an “abuse of discretion” or as “unreasonable.” The trend towards treating the guidelines as an advisory starting point, and in recognizing that their mechanical application can lead to unduly harsh outcomes is still the state of play around the federal circuits. But certain cases or circumstances are more likely to poke the appellate bear than a routine white-collar case, for instance. Material support of terrorism brings with it plenty of well-founded alarm. Rehabilitation feels particularly elusive, and the consequences of recidivism are severe—considerably more than the harm of a tax cheat or fraudster reoffending after sentencing. And the tipping point for the Second Circuit was clearly the return to ISIS employment while on release pending trial. Judge Weinstein only added two months to his sentence for that conduct, and he seemingly ignored the fact that her return to materially supporting ISIS was a powerful contradiction of defense experts who claimed she had “turned the corner” on her rehabilitative path. That particularly willful and powerful aspect of Ceasar’s behavior made it considerably easier for the appellate court to strike down an 87% downward variance from the lowest point of the advisory guideline range.

There will always be a tension between treating similar defendants similarly and the need for individualized justice, and Ceasar’s case is a good example of that challenge. But I would not expect the unique issues in this case to herald a new age of appellate overreach—terrorism cases are simply a different breed, and obstructionist behavior while the case is pending–bad for any defendant at sentencing–is exponentially more troublesome in a material support prosecution context.

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