Can an audio tape with a two minute “gap” in it be admitted into evidence?: The Supreme Court of New Jersey encounters a claim of undue prejudice in State of New Jersey v. Kingkamau Nantambu (A-97-13, Decided April 29, 2015)

Audio tapes and video tapes are a frequent coin of the realm in both federal and state criminal practice. It is increasingly rare to find a major prosecution in which the government’s discovery does not now include some form of recording. There are multiple paths of varying effectiveness through which intrepid defense counsel can seek to exclude this evidence. One of the more straightforward is if the recording in question can be argued to have been incomplete in some way.
Now, one might assume that a partial recording, even if relevant, would be so inherently suspect as to preclude admission under Rule 403 of the Federal Rules of Evidence or one of its state law counterparts. But this would be a perilous assumption. Incomplete or partial tape recordings can be admitted, once authenticated and found to be trustworthy, although it can be a challenging and convoluted analysis. One such scenario was addressed last week by the Supreme Court of New Jersey in State of New Jersey v. Kingkamau Nantambu.
Mr. Nantambu was involved in a domestic dispute with his girlfriend, Crystal Aikens. As is often the case in such matters, the police were summoned. Ms. Aikens then alleged that Mr. Nantambu had threatened her with an illegally possessed firearm and such a weapon was, in fact, found to be on the premises. This resulted in Mr. Nantambu being charged with two gun offenses.
Shortly after his arrest, Ms. Aikens also reported to the police that Mr. Nantambu had contacted her and had engaged in “witness tampering”, attempting to influence her future testimony in exchange for money. Ms. Aikens agreed to let two detectives from the Atlantic County Prosecutor’s Office place recording equipment on her cellular telephone and listen in while she talked to Mr. Nantambu. Two earpieces were then attached to the telephone and to a digital audio recorder in order to capture the conversation while the detectives stood by.
For a time, all went quite well (from the prosecution’s point of view, at least). Ms. Aikens reached Mr. Nantambu who soon had promised her money in an attempt to script what she would say going forward. He also that admitted he had, in fact, possessed a gun.
Then, things took a turn. According to the detectives, during the call, Ms. Aikens shifted her position and moved the cellular telephone. This, in turn, caused the recording device to fall and the wires to disconnect. By the time the recorder was retrieved, checked and the wires re-attached, two minutes had elapsed and the conversation was effectively over. The resulting recording thus had a significant gap in it.
Nonetheless, the State added bribery and witness tampering charges to Mr. Nantambu’s already-existing weapons issues. At trial, the State attempted to offer the partial recording as substantive evidence on both sets of charges. This proffer was bolstered by testimony from the detectives to the effect that they had heard portions of the unrecorded slice of the conversation and that nothing material had transpired in the missing part.
The defense objected, citing to State of New Jersey v. Driver, 38 N.J. 255 (1962), arguing that the gap in the tape made it inadmissible. The trial court agreed finding that, although the gap was not caused by any intentional conduct by the police, the very existence of a incompleteness precluded the tape’s admission. The court was also discomfited by the fact that the gap was situated immediately after one particularly damaging statement by Mr. Nantambu.
On appeal, New Jersey’s Appellate Division reversed, crediting the testimony by the detectives that nothing material was said in the two minute gap. The Supreme Court of New Jersey granted certification.
Under Driver and New Jersey law, partial tape recordings can come into evidence. But the trial court must first utilize Driver’s five part analysis applicable to all recordings proffered by the State: (i) that the device used could and did, in fact, record; (ii) that its operation was competent; (iii) that the recording is authentic; (iv) that no changes, additions or deletions were made; (v) and that any confessions on the tape were elicited voluntarily.
In the circumstances of a partial recording, it is thus really the fourth Driver element that comes to the forefront, as trial court must determine whether admission of a partial tape unduly prejudices the interests of the defendant and what the remedy should be.
Here, the Supreme Court found that gaps in a tape do not automatically require the exclusion of the entire recording. Instead, the Court instructed that an evidentiary hearing must be held on the trial court level in order to determine whether the missing portion renders the entire recording inherently unreliable. The Court also left open the possibility that strategic redactions of portions of tape made unreliable by missing material is an option that may be considered at trial.
Thus, in evaluating a partial recording, the trial court must really determine two things: first, both whether an omission or gap in the tape is unduly prejudicial and, second, if prejudice is found whether the prejudice renders all or only some of the tape untrustworthy. The trial court should then suppress only the portion deemed untrustworthy.
Since this analysis was not done below, the judgment of the Appellate Division was reversed and the matter remanded to the trial court for additional consideration.

Can you receive a term of life imprisonment for forcing someone to accompany you to a different room in their own house?: Justice Scalia and a unanimous Supreme Court say “yes” in Whitfield v. United States of America, (though to be fair, I should note that Mr. Whitfield had just tried to rob a bank).

18 U.S.C. 2113 (e) has a long and venerable history, even by the storied standards of the federal criminal code. It was originally enacted in 1934 in response to “an outbreak of bank robberies committed by John Dillinger and others” Carter v. United States of America, 530 U.S. 255, 280 (2000) (Ginsburg, J., dissenting).

In addition to robbing banks, these malefactors would, logically enough, then seek to avoid apprehension. In order to do this, they would frequently pause to take hostages, thus distracting and/or hamstringing pursuing law enforcement.

To address this evil, piled on top of another evil, Congress enacted Section 2113 which criminalizes the act of “forc[ing] any person to accompany [one] without the consent of such person…” while avoiding or attempting to avoid apprehension (for one of the defined offenses). The statute has a sliding scale of penalties: a mandatory minimum of 10 years, 20 years for bank robbers who use “force and violence” or “intimidation”, 2113 (a), 25 years for those who assault or put in jeopardy the life of another “by use of a dangerous weapon or device”, 2113 (d) and a maximum sentence of life if a fatality results.

The law does has an interesting historical pedigree, but rarely has it been invoked in a more unfortunate case than that of Larry Whitfield and his unfortunate victim, 79 year old Mary Parnell.

Mr. Whitfield had just robbed a bank. Seeking shelter, he entered Ms. Parnell’s house through an open door and attempted to guide her from the hallway to a computer room a few feet away. There, Ms. Parnell, no doubt traumatized and terrified, suffered a fatal heart attack.

Mr. Whitfield was soon captured, indicted under 2113 (e) and convicted. On appeal, he challenged the 2113 (e) conviction arguing that his minimal movement of Ms. Parnell of between four and nine feet (his estimate), occurring as it did for a very brief period, inside her own home did not meet the definition of a “forced accompaniment”. The Fourth Circuit rejected this argument and affirmed.

Reasonable minds might differ as to whether Mr. Whitfield’s actions fell within the intended ambit of the statute. The Supreme Court, however, and Justice Scalia in particular did not seem to struggle long or hard in rejecting this argument. Citing to sources as diverse as the Oxford English Dictionary, Dickens’ “David Copperfield” and “Pride and Prejudice” by the great Jane Austen, the Court found unanimously that “to accompany” someone can does not require movement over any substantial distance.

All in all, not a shocking result. An unfortunate, elderly and sympathetic victim—an unsympathetic and predatory defendant and a criminal statute with a long and distinguished pedigree—not a great recipe for the defense.

Duane Morris Partner Joseph M. Burton Discusses the “4 Steps to Getting Serious About Law Firm Cybersecurity”

The need for better cybersecurity, along with the responsibility to safeguard client and firm information from the risk of loss from cyberattack, has been the focus of considerable discussion by law firms for the past four years. While some law firms have recently awakened to this key issue, significant further work needs to be undertaken. Let’s look at the progress (or lack thereof) of law firm security over this four-year period — and four ways firms could improve both the speed and effectiveness of their cybersecurity going forward.

To read the full version of the article written by Duane Morris partner Joseph M. Burton, please visit the Law Practice Today website.

Duane Morris Partner Eric Breslin Appointed to New Jersey Supreme Court Criminal Practice Committee

Eric Breslin, a partner with law firm Duane Morris LLP, has been appointed to the New Jersey Supreme Court Criminal Practice Committee. Breslin, a litigator in the firm’s Newark office, will serve on the committee through August 2015.

The Criminal Practice Committee reviews cases and issues referred to it by the state Supreme Court and makes recommendations regarding revisions and amendments to the New Jersey Rules Governing Criminal Practice. The rules dictate practice and procedure in all criminal proceedings in the state’s courts, including the municipal courts.

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Duane Morris Partner Mauro M. Wolfe Named to Council of Urban Professionals’ CUP Catalysts: Change Agents 2013 | Law

Duane Morris partner Mauro M. Wolfe has been named to the Council of Urban Professionals’ second annual list of CUP Catalysts: Change Agents 2013 | Law. The list highlights and celebrates the accomplishments of diverse leaders across the legal sector who have achieved extraordinary success in business and have made a significant impact on their community. These individuals will be recognized at CUP’s 4th Annual Lawyers Forum on October 29, 2013.

The CUP Catalysts: Change Agents 2013 | Law list comprises 15 legal professionals, between the ages of 35-50, who serve at senior levels of organizations, and who have been nominated by their colleagues and peers. For the full list of CUP Catalysts in Law, visit the Council of Urban Professionals’ website.

Duane Morris Partner Eric Breslin to Speak at the American Conference Institute’s 3rd National Forum

Duane Morris partner Eric R. Breslin will speak at the American Conference Institute’s 3rd National Forum on Securities: Litigation and Enforcement. The conference will be held on February 27, 2014 at the Grand Hyatt Washington Hotel.

ACI’s 3rd National Advanced Forum on Securities Litigation and Enforcement, is the only event in the industry where experienced in-house counsel, leading litigators, renowned jurists, and regulatory and enforcement officials from federal and state agencies will assemble in our nation’s capital to provide the highest level insights on the most current developments in the field.

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Duane Morris Partner Marvin Pickholz on Recent Federal Court Decisions That Revitalize the Government’s Civil Enforcement Power Under FIRREA

Duane Morris partner Marvin G. Pickholz has recently co-authored “Recent Federal Court Decisions Revitalize the Government’s Civil Enforcement Power Under FIRREA,” which appeared in the July/August issue of the Financial Fraud Law Report.

In its latest wave of civil actions, the Department of Justice has resurrected an old weapon to wield in a new way: the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (“FIRREA”). Consistent with Congress’s tendency to pass ill-defined legislation and then leave it to the courts to later flush out and shape the law, FIRREA was passed in a sweeping flurry of legislation aimed at addressing a pressing issue, and then lay dormant for many years. Similar to the Foreign Corrupt Practices Act and the Racketeer Influenced and Corrupt Organizations Act, over two decades after its creation, FIRREA has now resurfaced in federal cases involving financial fraud and is likely to create more disincentives for a company or individual to litigate against the government.

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Does the Government Need a Search Warrant to Obtain Cell Phone Location Data?: Within the Past Month, the Fifth Circuit said “No” while the New Jersey Supreme Court said “Yes”

The historical location data of a given individual’s cellular telephone can be put to a startling array of uses by state and federal law enforcement. Really, it is not hard to figure out how. Cellular phones send out signals at short time intervals in order to establish the presence of a nearby cell tower and to connect to it as required. This location information is recorded and preserved by the industry’s various service providers—T-Mobile, Sprint and the like.

The police have figured it out. If one can find the cell phone; in most cases, you can find its user and/or owner.

Continue reading Does the Government Need a Search Warrant to Obtain Cell Phone Location Data?: Within the Past Month, the Fifth Circuit said “No” while the New Jersey Supreme Court said “Yes”

Serious Fraud Office Issues Draft Code of Practice on Deferred Prosecution Agreements

On 27th June 2013, the UK announced more details of new rules that would introduce Deferred Prosecution Agreements (DPAs) into the UK for corporate offences. DPAs have been the weapon of choice for US regulators when prosecuting bribery and corruption cases, and the hope is that DPAs will bring greater predictability for those wishing to settle a case with prosecutors on both sides of the Atlantic.

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Second Circuit Shifts Burden of Showing Assets to Defendants; Clarifies Monsanto Decision

Both civil and criminal agencies charged with enforcing U.S. laws have turned increasingly to broad based use of “asset freeze orders.” Legal counsel and their clients should understand the issue, particularly as there is a split in the Circuits and the Supreme Court has not yet addressed the issue. On June 19, 2013, the U.S. Court of Appeals for the Second Circuit issued an opinion “clarifying” its 1991 decision in U.S. v. Monsanto, where it held that a (criminal) defendant who wishes to use frozen funds for their defense is entitled to a pretrial hearing to determine whether there is probable cause to believe the defendant committed the crimes that formed the basis for the forfeiture and whether the funds are forfeitable. In U.S. v. Bonventre, the Second Circuit ruled that a defendant must first make a “threshold showing” that a Monsanto hearing is warranted.

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