Second Circuit Vacates Conviction Because of Error Admitting Hearsay Evidence of Threats Against Witness

June 10, 2017 by Marshall A. Mintz · Leave a Comment 

Cummings was charged with conspiracy and multiple narcotics, murder, and firearm offenses. During the trial one of the government’s witnesses testified that Cummings had threatened him because he was a cooperating witness. Cummings was convicted and sentenced to 75 years’ imprisonment.

On appeal it was argued that the testimony was inadmissible hearsay because an examination of the record showed the witness actually stated he did not hear the threats personally. In United States v. Cummings, 858 F.3d 763 (2d Cir. 2017), the Second Circuit agreed and found  the evidence  so “toxic” that there was no way to conclude it did not influence the jury. As a result, the court vacated the convictions and remanded for a new trial.

The Circuit’s opinion provides an excellent analysis of the dangers of hearsay and the prejudice which can result. Please check back soon as I will be posting a more comprehensive discussion of the case.

(Disclosure: I represented Cummings on appeal but not at the initial trial)

Applying the “public safety” exception to the Miranda requirements

December 7, 2012 by Marshall A. Mintz · Leave a Comment 

In United States v. Ferguson, 11-3806 (2d Cir. Dec. 6, 2012), the Court held that the “public safety” exception to the Miranda requirements applied when a police officer has reason to believe that a person may have left a firearm in a public place – thus permitting the officer to interrogate that person an hour or more after arrest.

In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court explained that “overriding considerations of public safety [may] justify [an] officer’s failure to provide Miranda warnings before he ask[s] questions devoted to  locating [an] abandoned weapon.” Later, in United States v. Estrada, 430 F.3d 606 (2d Cir. 2005), the Second Circuit looked to three factors in making that determination: (1) whether the questioning related to an objectively reasonable need to protect the police or public from an immediate danger, (2) whether an objected observer would believe the questioning was a subterfuge meant to elicit evidence from a suspect, and (3) that the questions were not routinely asked to arrested suspects but instead showed an intent to protect against a perceived danger.

The officer who interrogated Ferguson had previously heard he possessed a firearm and the 911 call reported that a firearm had been fired. But no weapon was recovered when Ferguson was arrested and the officer’s questions were “rationally related to the objective of securing public safety by locating the gun.” Thus, the Court found, the interrogation was within the scope of Estrada.

While recognizing that the passage of time between an arrest and an interrogation may “diminish the immediacy of threat posed by an unaccounted-for firearm,” the Court ultimately concluded that, in this case, it “did not diminish the officers’ objectively reasonable need to protect the public from the realistic possibility that Ferguson had hidden his gun in public, creating an imminent threat to public safety.”

Paying for Guns with Drugs Establishes Possession of a Firearm in Furtherance of Drug Trafficking

March 10, 2010 by Marshall A. Mintz · Leave a Comment 

In United States v. Gardner/Gladden, 08-47930-cr (2d Cir. March 10, 2010), appellants challenged the district court’s instruction to the jury that it could find a violation of 18 U.S.C. § 924(c)(1)(A) if it found that the defendants “acquired the firearm by paying for it with drugs involved in the conspiracy.”

In rejecting that challenge, the Court joined the First, Fourth, Sixth, Ninth, and Tenth Circuits and held that when a defendant acquires a firearm using drugs as payment, he possesses that firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).