Closing Trial to Public for Officer Safety Permissible

A defendant is not entitled to federal habeas corpus relief after a state court denies him a public trial, reaffirming that a court has the discretion to close a trial to protect a witness

Moss v. Colvin, 2d Cir., No. 15-2272, 1/9/17.

The Second Circuit held that a trial court did not abuse its discretion in closing a trial to the public to protect an officer-witness because it properly considered alternatives, which precluded federal habeas corpus review. The defendant argued that the trial court failed to find an overriding interest that would be prejudiced if the trial was to remain open. Ultimately, the court considered alternatives but met the standard of review that gives courts greater deference under the Antiterrorism and Effective Death Penalty Act in closing trials to the public.

In reviewing the habeas corpus petition, the Second Circuit found that the state appellate court in their review of the trial court’s actions was correct in finding from the record that alternatives were considered and that there was an overriding interest of officer safety that warranted the closure of the trial to the public. The circuit court, however, did caution the trial court to be careful and exact in outlining the reasons a courtroom must be closed to the public.

http://www.bloomberglaw.com/public/document/Moss_v_Colvin_No_152272_2017_BL_4847_2d_Cir_Jan_09_2017_Court_Opi.

GPS Tracking on Cell Phone OK if for Exigent Circumstances

Without answering issues regarding the expectation of privacy in a suspect’s GPS coordinates through their cell phone, a court ruled that exigent circumstances warranted tracking of a cell phone

United States v. Caraballo, 2016 BL 247520, 2d Cir., No. 14-4203-cr (Con), 8/1/16.

   The Second Circuit punted on the privacy issue of whether a Fourth Amendment search is conducted when a state actor uses the GPS coordinates of a suspect’s cellphone during an investigation. Rather, it relied on exigent circumstances in the case to justify the search. While the circuit court affirmed the lower court’s holding, finding that there were exigent circumstances for the search, it did not, however, make a ruling on the trial court’s determination that the use of GPS coordinates violates an expectation of privacy. The Sixth Circuit is the only jurisdiction so far to address whether the use of GPS coordinates from a cell phone violate an expectation of privacy, holding that individuals have “no reasonable expectation of privacy in the real-time GPS location of their cell phones.”

https://www.bloomberglaw.com/public/desktop/document/United_States_v_Caraballo_No_123839cr_L_2016_BL_247520_2d_Cir_Aug?1470857495

nder New York Law, Robbery Not Necessarily “Crime of Violence” for Career Criminal Enhancements

After reviewing the New York statute on first-degree robbery, a federal circuit court held that language in the statute prevents it from being an inherent “crime of violence” for federal sentencing guidelines

United States v. Jones, 2016 BL 233942, 2d Cir., No. 15-1518-cr, 7/21/16.

The Second Circuit held that robbery is not necessarily a “crime of violence” for purpose of the career-offender enhancement under federal sentencing guidelines. While the facts of the actual robbery were not considered by the court, it examined what constituted a robbery under the New York statute, concluding that a person can commit robbery without taking any “violent” actions. Some actions, such as possessing a weapon without ever brandishing it during the crime, were especially significant to the court in making this decision.

The Second Circuit relied on the U.S. Supreme Court decision, United States v. Jones, where the court held that a violent felony under the Armed Career Criminal Act requires an element of “violent force.” The court looking at the New York statute and found that “a robber's possession of a concealed and unmentioned weapon while he commits a robbery can support a first-degree robbery conviction under [New York law] but such possession cannot turn what is otherwise less-than-violent force into violent force.”

As of August 1, the U.S. Sentencing Commission’s will release a new set of sentencing guidelines regarding what constitutes a "crime of violence."

http://www.bloomberglaw.com/public/document/United_States_v_Jones_No_151518cr_2016_BL_233942_2d_Cir_July_21_2.

Salaried Worker Who Embezzled Money Must Also Repay For Time Not Worked

Although on salary, a worker that embezzled money from her company must also repay for time that would have been spent working in addition to money that was stolen

United States v. Tadios, 2016 BL 157858, 9th Cir., No. 14-30231, 5/18/16.

    The Ninth Circuit now joins the Second Circuit view that salaried employees should  be required to repay their employer for time not spent working when employed in addition to amount owed after embezzling an employer’s funds. The court took into consideration that “by failing to claim or deduct annual leave…[the defendant] harmed clinic twice over: first, by getting the clinic to pay for travel expenses it had no obligation to cover, and again by getting the clinic to pay her salary for time she was supposed to be working but was not.”

   The circuit court affirmed the district court’s calculation of multiplying employee’s estimated hourly rate by the number of hours she should have taken as annual leave. In applying this to salaried workers, defendants can no longer claim that a place of employment does not suffer compensable loss because she was a salaried worker entitled to full pay regardless of travel or vacation time.

http://www.bloomberglaw.com/public/document/United_States_v_Tadios_No_1430231_2016_BL_157858_9th_Cir_May_18_2