Supreme Court Hears Argument In Honeycutt

The Honeycutt brothers run an operation selling iodine to methamphetamine dealers.  One brother makes $269,000 in total profits.  The other brother gets paid a weekly salary, but otherwise takes home nothing.  They are both charged in a drug conspiracy.  The first brother reaches a plea deal with the government, and as a result gets to keep most of the money he made.  The second brother loses at trial.  At his sentencing, the trial court orders the second brother to forfeit (i.e. give back to the government) an amount equal to the total $269,000 in profits – even though he never saw a dime. Continue reading “Supreme Court Hears Argument In Honeycutt”

New Scrutiny of Civil Forfeiture Laws

The Inspector General of the U.S. Department of Justice (“DOJ”) released a report on March 29, 2017, faulting the DOJ for failing to systematically evaluate its forfeiture data to determine the extent to which seizures benefit law enforcement efforts or present potential risks to civil liberties.  While the Inspector General’s (“IG’s”) report specifically focused on the forfeiture activities of the federal Drug Enforcement Agency (DEA), its conclusions may likely be extended to other arenas in which the federal government initiates civil forfeiture activities, including white collar crime.  Continue reading “New Scrutiny of Civil Forfeiture Laws”

Changes Are Coming to the SEC Enforcement Division – What Does It All Mean?

This week reports surfaced that a major shift in the SEC enforcement division had taken place – behind the scenes.  The timing is quite interesting as the agency’s annual seminar and SEC Alumni dinner will occur at the end of the month.  No doubt this will be a topic, among many, of the annual SEC cocktail regulars in DC.

The reports indicate that the Acting Chairman Michael Piwowar has centralized the power of the enforcement division to “issue subpoenas or formally launch probes,” as Reuters put it.  The question that has been asked is – What does all of this really mean, really?  Continue reading “Changes Are Coming to the SEC Enforcement Division – What Does It All Mean?”

The Supreme Court of New Jersey Clarifies “Plain View” Seizures (Sort of): State v. Gonzales

“(P)lain view” seizures were recognized by the United States Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971).  The doctrine is true to its name: it permits warrantless seizures of illegal contraband that is in the “plain view” of law enforcement.   This is the law in New Jersey too.  State v. Bruzzese, 94 N.J. 210 (1983).

There is common sense at work here.  If law enforcement finds evidence out in the open, it would be unduly burdensome and illogical to require the State to leave the evidence in place while it secures a warrant to support the necessary seizure.

But this exception to the Fourth Amendment’s warrant requirement requires a dash of kismet and a dollop of good luck: law enforcement must be in the right place, at the right time, to discover and seize the evidence. If they are not, then they cannot.

Yet, what if such a happy fortuity is more than luck, but is also the product of some prior planning or scheming?  What if law enforcement’s actions are challenged as pre-textual?  When and how is the subjective intent of the police to be considered in evaluating the validity of a “plain view” seizure? Continue reading “The Supreme Court of New Jersey Clarifies “Plain View” Seizures (Sort of): State v. Gonzales”

Supreme Court of New Jersey Increases Protections for Cellphone Billing Records in State of New Jersey v. Lunsford

By Eric R. Breslin

Cellular telephone billing records are another mundane aspect of modern life. They arrive monthly in the mail or online and hardly anyone I know (at least) spends any great amount of time reviewing them for accuracy or content. In most households, they go into the “to be paid” pile, where they reside until processing.

But telephones are no longer just telephones and cellular telephone bills, if parsed thoroughly and knowingly, can reveal on their face a startling amount of personal information and can provide entrée to much more. In 2016, cellular telephones must be viewed as small super computers and cellular telephone bills can yield as much information as banking or credit cards records can, if not more. Continue reading “Supreme Court of New Jersey Increases Protections for Cellphone Billing Records in State of New Jersey v. Lunsford”

Duane Morris’ Michael E. Clark to Present at ABA’s Foreign Corrupt Practices Act Mock Trial Institute

Duane Morris special counsel Michael E. Clark, who is this event’s co-chair, will also present during several sessions at the American Bar Association’s (ABA) First Annual Foreign Corrupt Practices Act Mock Trial Institute, to be held on November 16–17, 2016, in Houston, Texas.

On Wednesday, November 16, Mr. Clark will participate in the following sessions: “Jury Selection and Voir Dire,” at 8:30 a.m.; “Initial Jury Charge and Opening Statements” at 10:00 a.m.; “Government Witness Two: FBI Agent” at 10:45 a.m.; and “Defense Witness One – Henry Hornsby” at 2:00 p.m. On Thursday, November 17, Mr. Clark will be a panelist on the topic, “Session One: Discussion of Key Strategies, Issues and Themes in the FCPA Trial,” at 8:30 a.m.

Continue reading “Duane Morris’ Michael E. Clark to Present at ABA’s Foreign Corrupt Practices Act Mock Trial Institute”

The Supreme Court of New Jersey Narrows the State’s Expungement Statute

N.J.S.A 2C: 52-2(a) permits the Superior Court to expunge convictions of certain classes of offenses under certain enumerated circumstances. As one example, the applicant seeking the remedy must have been “convicted of a crime,” but “…not convicted of any prior or subsequent crime.” The statute also bars from eligibility those who plead guilty in one proceeding to multiple offenses committed within a short period of time.

But what exactly does this last limitation mean in practice? Last week, the Supreme Court of New Jersey addressed and answered this question in In the Matter of the Expungement Petition of J.S. (A-84-13) and In the Matter of the Expungement of the Criminal Records of G.P.B, (A-2-14). So now while a quantum of doubt has been eliminated (and that is always a good thing), the statute is now more restrictive (and, for defense practitioners, this is decidedly not a good thing). Continue reading “The Supreme Court of New Jersey Narrows the State’s Expungement Statute”

Supreme Court of N.J. Issues Two Significant Search and Seizure Opinions

Partner Eric R. Breslin, in Newark, discusses the uptick in the Fourth Amendment search and seizure and ancillary privacy litigation in the last few years in the New Jersey courts. In just April and May 2015, the state Supreme Court issued two significant opinions that would impact both the Fourth Amendment and proper admission into evidence of monitored telephone calls from State of New Jersey v. Ricky Wright and State of New Jersey v. Kingkamau Nantambu. Even through a quick look at the court’s docket for the upcoming term has shown even more decisions coming.

To read the full text of the article, please visit the Duane Morris website.

Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)

The “private search doctrine” is a semi-obscure corner of Fourth Amendment jurisprudence. At its base, the doctrine addresses instances in which a private actor (i.e., not a law enforcement officer) conducts a “search” and discovers some species of contraband or proof of illegal conduct.   That person must then proceed to notify law enforcement and/or present them with the item in question. Law enforcement must then proceed to duplicate the private search without first obtaining a judicial warrant.

Does this happen every day? Probably not. Yet, it does happen enough to be the subject of a recent decision by the Supreme Court of New Jersey, which opinion recounts a diverse line of state and federal authority on this very issue. Continue reading “Can the “private search” doctrine serve as an exception to the Federal and State of New Jersey constitutional requirement that a warrant issue in advance of a search of a private home? The Supreme Court of New Jersey’s decision in State of New Jersey v. Ricky Wright (May 19, 2015)”

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. Continue reading “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)”