Tuesday, February 14, 2012

Defendants in Multi-National, Internet-Based, Controlled-Substance-Distribution Case Seek Relief on Multiple Grounds Without Success

In United States v. Bansal, Nos. 06-1370, 06-2535, 06-2536, 06-3043, 07-1525, 07-1526, 07-4618, 09-1827 (3d. Cir. December 14, 2011), the Third Circuit discussed and then denied 13 of the 75 issues presented in this case involving a multi-national, internet-based, controlled-substance-distribution scheme. In the interest of brevity, the issues addressed in this 69-page opinion are as follows:

(1) Whether the money laundering convictions impermissibly merge with the underlying predicate felonies under United States v. Santos, 553 U.S. 507 (2008)?

(2) Whether the indictment insufficiently stated the elements of a CCE offense, and whether the conviction was flawed due to improper jury instructions and insufficiency of the evidence?

(3) Whether various emails intercepted pursuant to two warrant-authorized wiretaps should have been suppressed because they were not immediately sealed upon the warrant’s expiration pursuant to 18 U.S.C. § 2518(8)(a), which requires that the recordings of the contents of any wire, oral or electronic communication obtained pursuant to a search warrant be sealed immediately upon the expiration of the period fo the order?

(4) Whether the District Court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), during sentencing because the jury made no finding of fact as to whether the substances involved in the case were Schedule II, III or IV substances?

(5) Whether the conspiracy convictions are invalid on the ground that the underlying conduct the government alleged, distribution of controlled substances via the internet, was not illegal at the time of the indictment?

(6) Whether the money laundering convictions are invalid because the money was laundered from lawful sources, i.e. because it was legal at the time to sell controlled substances over the internet without prescriptions?

(7) Whether the conspiracy conviction was a misdemeanor rather than a felony - - a conclusion that if correct, might undermine the money laundering conviction which requires proceeds to be from specified felonies, alter the Sentencing Guidelines calculations or bear upon the mutual understanding of the forfeiture agreement?

(8) Whether the grand jury proceedings were tainted by the presence of an allegedly improperly appointed Special AUSA; whether prosecutors made material misstatements and elicited false testimony during the grand jury proceedings; whether the indictment insufficiently stated the elements of the CCE charge because it did not allege with particularity three predicate felonies upon which a valid CCE charge must rely; and whether the District Court improperly limited public and press access to the pretrial jury selection procedures when it conducted a portion of the voir dire (individual voir dire) about sensitive subject in the presence of the parties in a closed jury room adjacent to the courtroom?

(9) Whether the District Court erred when it failed to suppress evidence obtained from the internet service providers that managed his email accounts because the five magistrate judges who issued the warrants lacked jurisdiction to do so because the warrants were ultimately executed on internet service providers in California, the warrants were unconstitutional general warrants, the warrants were invalid because they lacked probable cause, and the agents executing the warrants failed to adhere to the notice requirements of Rule 41 when they did not provide the defendant with a copy of the warrants; whether the District Court erred when it failed to suppress evidence obtained during the search of a garage because the garage was beyond the curtilage; whether the District Court erred when it failed to suppress evidence obtained from the defendant’s vehicle after his arrest?

(10) Whether the government presented sufficient evidence at trial to support the jury’s verdict of guilty with respect to the controlled substance distribution and importation charges?

(11) Whether various items of evidence (domestic and foreign business records, Excel spread sheets, bank check and wire-transfer exhibits, testimony of IRS Agent re domestic and international wire transfers, website screenshots, and summary exhibits) were admitted at trial in violation of the 6th Amendment’s Confrontation Clause and the Federal Rules of Evidence?

(12) Whether the District Court erred when it instructed the jury on certain matters including, advising them as a matter of law that each of the drugs listed in the indictment were controlled substances, the definition of "business enterprises involving narcotics", a cautionary instruction re cooperating witnesses and its instruction to consider whether witnesses who have pleaded guilty have an incentive to lie, instructing the jurors to "seek the truth", a "willful blindness" instruction re deliberate indifference, and an instruction on the elements of conspiracy and on the intent element of felony misbranding?

(13) Whether the government withheld exculpatory evidence (certain intercepted phone calls, emails, an indictment filed against coconspirators in New York, proffer statements from one of coconspirators and impeachment evidence against a coconspirator) in violation of Brady v. Maryland, 373 U.S. 83 (1963), and whether the government intruded into the defense camp by intercepting telephone calls he made while incarcerated in a federal detention center?

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