In Jail? Be Careful What You Say on the Phone, It May be Used Against You in Court

—by D.J. Nugent

People v. Johnson, No. 37, 2016 N.Y. LEXIS 752 (N.Y. Apr. 5, 2016).

Abstract:

The Court of Appeals upheld a New York City regulation that permits prisons, such as Rikers Island, to monitor and record inmates’ non-privileged conversations. Furthermore, the Court held that upon request of the District Attorney’s Office, the prison may turn over any recording for use at trial.

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Facts

Marcellus Johnson (“defendant”) was arrested for robbery and could not make bail, thus being held at Rikers Island (“Rikers”). While at Rikers, defendant made multiple telephone calls to his friends and family. In these calls defendant made incriminating statements and used vulgar language in reference to the victim and other individuals involved in the robbery. Pursuant to New York City Regulation, Title 40 RCNY § 1-10 (“regulation”), the Rikers administration listened to and monitored these calls.

The regulation provided that prisoners may make telephone calls, that telephones shall be installed in the housing areas of prisons, that upon the implementation of appropriate procedures prisoners’ phone calls may be listened to when legally sufficient notice has been given to the prisoners, and that telephone calls to several classes of people, such as attorneys, shall not be monitored or listened to.[1] Rikers implemented appropriate procedures to record prisoners’ phone calls. These procedures stated that three notices would be provided to prisoners to inform them that their phone calls were being recorded and or monitored. One notice, written in English and Spanish, was posted near the telephones the prisoners use, one notice was set forth in the inmate handbook, and one notice was played at the beginning of each call that a prisoner made from Rikers.

Rikers stated that it only records calls on a “needs basis” which means when a situation “prompts” review, such as calls that involve institutional and public safety and security. New York City District Attorneys’ Offices may request a copy of the prisoner’s recorded call, and such requests are decided within three business days by Rikers Deputy Commissioner for Legal Matters, which has no criteria for deciding such requests. The New York City District Attorney’s Office acquired the recordings of the calls that defendant made, and sought to play excerpts of these conversations at trial.

 

Procedural History

Defendant filed a motion in limine to bar the prosecution’s use of the recordings arguing the disclosure was unauthorized and unwarranted under Rikers’s procedures, and that disclosure to the District Attorney’s Office undermined his Sixth Amendment right to counsel. The trial court denied this motion, and the prosecution was allowed to play excerpts of the recordings for the jury. The jury then convicted defendant of robbery, larceny, and possession of stolen property. On appeal the appellate division found the recordings admissible, although defendant’s right to an attorney had attached. The New York Court of Appeals granted leave to appeal.

 

Court’s Analysis and Reasoning

The defendant claimed that Rikers’s practice regarding prisoners’ phone calls violated his right to counsel, exceeded the scope of Rikers’s regulatory authority, and was conducted without defendant’s consent. The Court held the claims were either without merit or were unpreserved, and did not warrant reversal or a new trial.

 

  1. Sixth Amendment Violation

Defendant’s Sixth Amendment argument was that by recording his phone calls Rikers essentially acted as an agent for the prosecution in eliciting damaging statements from him. The Sixth Amendment prohibits the use of incriminating statements deliberately elicited from a defendant by government agents. The Court emphasized that a violation of a defendant’s Sixth Amendment right to counsel requires the involvement of the state in eliciting that evidence.

The Court stated that there was no evidence that Rikers elicited or encouraged defendant to conduct these telephone conversations, and that defendant was on notice that the phone calls were being recorded, therefore analogizing this situation to an informer who passively receives information from a defendant, which the Court has held does not constitute acting as an agent of the government. Furthermore, defendant argued that his unique situation, specifically his limited access to the outside world, left him without options other than to make statements out of necessity during phone calls that were detrimental to his defense. The Court held that however true this argument may be it does not establish that Rikers acted as an agent of the prosecution in defendant’s case.

 

  1. Rikers Acting Beyond the Scope of its Authority Provided in the Regulation

The Court held that regardless of whether the record supports defendant’s argument, he is not entitled to suppression or preclusion of the phone calls on those grounds. The Court stated that suppression of evidence is warranted when the violation of a statute implicates a constitutionally protected right. Furthermore, defendant failed to identify a statutory right violated by Rikers because the regulation does not prohibit Rikers’s recording of prisoners’ conversations with friends and family.

 

  1. Lack of Consent

 

The Court held that defendant’s lack of consent argument was not preserved because he failed to argue to the trial court that his consent could not be broader than the notice of monitoring that was provided to him.

 

Concurrence

Judge Pigott concurred with the majority’s analysis and holding, but wanted to bring further attention to the District Attorney’s Office’s direct and unregulated access to all of an inmate’s non-privileged telephone conversations. The judge acknowledged that Rikers had a legitimate interest in maintaining the safety and security of its detention center, but compared this to the possibility that District Attorneys’ Offices may abuse the regulation. Specifically, the judge focused on the fact that the prosecution regularly is allowed access to phone recordings from Rikers, and that people who are detained before trial have a better chance of being convicted because of the inequities that a detained defendant faces in preparing his/her case. Faced with these realizations, the judge believed that a defendant’s only choice was not to use prison phones, which was a result that the judge could not sanction.

[1] Title 40 RCNY § 1-10.

New York Court of Appeals Holds “Symptom Threshold” Methodology Is Inadmissible, But Cites “Odor Threshold” Methodology With Approval

—by David M. Katz

Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

Abstract:

The New York Court of Appeals recently decided that the basis for an expert opinion on the specific concentration of a chemical cannot be predicated solely on a person’s symptoms, but also noted that expert opinion that a chemical was present at the concentration of scent detection could be admissible.

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On February 11, 2016, the New York Court of Appeals decided Sean R. v. BMW of N. Am., LLC, 48 N.E.3d 937 (N.Y. 2016).

The plaintiff was born with significant physical and mental birth defects.  The plaintiff alleged that his injuries were caused when his mother inhaled high concentrations of gasoline fumes while driving her 1989 BMW 525i during her first trimester of her pregnancy.  Both the plaintiff’s mother and grandmother stated that they could smell gasoline odors in the car.  Additionally, the plaintiff’s mother suffered from “headaches, dizziness and throat irritation” after driving in the car.  Further, the plaintiff’s mother and father stated that they could smell gasoline in their house when the car was parked in the garage.

Two causation experts opined on the nexus between the gasoline vapor exposure, the concentration of the gasoline during the exposure, and the plaintiff’s birth defects.  Using two separate methodologies, the plaintiff’s two causation experts came to the conclusion that the plaintiff’s mother inhaled gasoline at a concentration of 1,000 parts per million based solely on the symptoms exhibited during exposure to the gasoline fumes.

The defendants first filed motions for summary judgment, arguing that the plaintiff’s experts failed to lay a foundation for their opinions.  The trial court denied the motions.  The appellate division modified the order on other grounds.

The defendants then challenged the experts’ “symptom-threshold” methodology, arguing that using symptoms to determine a concentration of a chemical is not generally accepted within the scientific community.  The trial court precluded the plaintiff’s experts from testifying because symptom-threshold methodology was not generally accepted in the scientific community as a means of determining concentrations of chemicals.  On reargument, the court reaffirmed its prior decision.  The appellate division affirmed and granted a motion for leave to appeal to the Court of Appeals.

The plaintiff’s experts employed the symptom-threshold methodology.  Under the symptom-threshold methodology, an expert uses statements regarding odors and the symptoms that resulted to determine the concentration of chemicals that a person was exposed to.  The Court of Appeals began by noting that the plaintiff could not show any scientific literature employing the symptom-threshold methodology for causation purposes.  While the Court of Appeals noted that smelling chemicals and experiencing symptoms could be corroborative of a level of concentration, that evidence alone cannot “divine an otherwise unknown concentration of gasoline vapor.”  Thus, the court found that a symptom-threshold methodology, where symptoms are used to determine the concentration of a chemical, was not generally accepted in the scientific community.

The Court of Appeals distinguished the symptom-threshold methodology from other cases where experts employ the “odor threshold” methodology.  Similar to the methodology employed by the plaintiff’s experts, experts using the odor threshold methodology determine that a chemical concentration exists because the witness smelled a chemical.  However, unlike the plaintiff’s experts, experts employing the odor threshold methodology limit their opinion to the fact that the concentration was at least at the minimum concentration required for humans to smell the chemical.  The Court of Appeals noted that the odor threshold methodology is admissible because the level of detection is self-proving: if someone can smell a chemical, then it must be present at a certain minimum level.  As a result, the Court of Appeals, while rejecting the symptom-threshold methodology, also opened the door for the odor threshold methodology in toxic tort cases where the level of detection is equivalent to the level of toxicity.

Taxing the Human Body

—by Kelly Pare

Perez v. Comm’r, 144 T.C. No. 4 (2015)

Abstract:

Advances in modern medicine have brought new meaning to the idea of selling one’s body. Surrogacy arrangements, egg and sperm donations, and even black market kidney transactions are commonplace in today’s society. From a tax perspective, these types of commercial transactions are very interesting.

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Perez v. Comm’r, a 2015 United States Tax Court case, seems to raise more questions than it answers about the tax treatment of income derived from egg donations.  Nichelle Perez contracted with Donor Source, a for-profit California company, to donate eggs. See Perez v. Comm’r, 144 T.C. No. 4 (2015). Nichelle received $20,000 in 2009 for the pain, suffering, time, and inconvenience that the egg donation caused her. Id. Donor Source sent Nichelle a 1099 in the amount of $20,000. Id. Instead of reporting this income on her tax return, Nichelle concluded that the money was excluded from gross income under section 104(a) of the Tax Code. I.R.C. 104(a) (2014) (excluding from gross income damages received on account of personal physical injuries or physical illness).

The tax court rejected Nichelle’s argument, reasoning that the payments, although in compensation for physical pain and suffering, arose out of a consensual contract between Nichelle and Donor Source and did not merit exclusion from gross income. See Perez v. Comm’r, 144 T.C. No. 4 (2015).  Consequently, Nichelle had to pay income tax on the money she received by Donor Source. The court was adamant in addressing only the particular issue and facts before it, and expressly stated what the case was not about.  The court refrained from deciding whether human eggs are capital assets, figuring out how to allocate basis in the human body, determining the holding period for human body parts, or deciding the character of the gain from the sale of human body parts. Id. at 9.

The decision in Perez is narrowly confined to the facts of the case and decided only the tax liability of the particular individual at issue.  Moreover, current law is ambiguous as to the tax treatment of transfers in human body parts and the IRS offers little guidance. See Lisa Milot, What Are We—Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67 Wash. & Lee L. Rev. 1053, 1053 (2010).  This lack of clarity surrounding the taxability of transfers in human body parts makes tax planning and compliance difficult. Id. at 1108. Given the increasing volume of these types of transactions, perhaps the time is ripe for Congress to legislate in this area.

Unfortunately, the questions left unanswered by the court in Perez are more thought provoking and interesting from a tax standpoint than the questions on which the court focused.  Do human body parts properties constitute capital assets?  Is your basis in your body zero, or does it adjust upward and downward?  If for example, you sell a kidney that you have stored outside your body for more than a year, can the proceeds of that sale be characterized as a capital gain?  At the very least, the unanswered questions posed by the court in Perez would surely make for an interesting conversation at a bar, and the facts in Perez provide ideas for a great law school exam hypothetical.

For a more comprehensive overview of the taxation of transfers of human body parts and a framework of how these transactions should be taxed, see Lisa Milot, What Are We—Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials, 67 Wash. & Lee L. Rev. 1053 (2010) and Bridget J. Crawford, Our Bodies, Our (Tax) Selves, 31 Va. Tax Rev. 695 (2012).

Obama’s Endgame for Military Detention at Guantanamo

—by Kyle Tucker

Source: President Barack Obama, Remarks by the President on Plan to Close the Prison at Guantanamo Bay (Feb. 23, 2016), https://www.whitehouse.gov/the-press-office/2016/02/23/remarks-president-plan-close-prison-guantanamo-bay.

Abstract:

President Obama announced that a plan was submitted to Congress to close down the detention facility in Guantanamo Bay, Cuba. The plan seeks to transfer some of the detainees to foreign countries and create a facility in the United States for those detained in the future.

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On February 23, 2016, President Obama once again spoke of a plan to shut down the facility at Guantanamo Bay and relocate those detained there. The President has similarly tried to introduce a plan to close this facility in the past, but his efforts were opposed by Congress. Previously, Congress responded by imposing narrow restrictions on appropriations to block any executive attempt to shut the facility down. However, it is the belief of President Obama that America’s ongoing experience with the facility at Guantanamo has reached a turning point. Not only does the President believe the facility no longer adequately represents core American ideals, such as strict adherence to the rule of law and human rights, but he also is of the opinion that the facility undercuts the national security and counterterrorism efforts of the United States.

Even though this issue has divided many along partisan lines, both President George W. Bush and Obama were still able to influence the current nature of the facility at Guantanamo. For example, in his speech, President Obama emphasized that around 500 transfers from the facility to other countries occurred throughout the Bush Administration, and that he has been able to transfer 147 additional detainees. As a product of this cross-administration trend to transfer those detained at Guantanamo, 91 detainees are all who remain in the facility.

To continue this declining trend, the Department of Defense, working alongside the Office of Management and Budget, produced and submitted to Congress a four-part plan on behalf of the Obama Administration. First, the plan states that 35 detainees, whose transfers were already approved, will be transferred to certain countries for subsequent monitoring. With these transfers, the federal government will monitor them to ensure that the foreign countries have proper security measures in place. Second, the review process in place to determine if an individual’s detention is still necessary to national security will be accelerated for all of the remaining detainees. If detention is no longer required for an individual after the review board’s decision, the plan may allow that individual to be transferred to another country.

Third, the legal mechanisms previously in place will continue to be used for those detained under the law of war. For example, continued implementation of the military commissions process is one method to be utilized with the remaining detainees. However, the President’s plan seeks to make further changes to this process because of its cost and duration in individual cases. Furthermore, even though military commissions will continue to be an option for those detained on the battlefield, President Obama stated that the best route in the future for those detained outside of the battlefield would be to utilize Article III courts. Lastly, the plan focuses on finding a suitable location in the United States to hold detainees. The facility will house those to be tried by military commissions, those who cannot be transferred to another country, or those determined to be a significant threat to national security. Since the President will work alongside Congress to find a particular facility in the United States, the plan did not name a specific location.

Just like any proposal, especially one that has produced a strong partisan divide, its potential effect on the future of American national security is unknown and unpredictable. Any plan President Obama comes up with is conditioned upon the approval of Congress to cut the check and make his plan a reality. Regardless of its ultimate outcome, the legal issues arising from the President’s plan will produce a debate with the potential to reshape the future of American national security.