On February 21, 2018, in Class v. United States, the U.S. Supreme Court reaffirmed that a defendant who pleads guilty can still raise on appeal any constitutional claim that does not depend on challenging his or her “factual guilt.”  The Court’s holding preserves a federal criminal defendant’s ability to challenge the constitutionality of the statute underlying his or her conviction, even in the event of a guilty plea.  In other words, where the appellate claim implicates “the very power of the State” to prosecute the defendant, a guilty plea alone cannot bar it. 
Continue Reading SCOTUS Speaks:  Guilty Pleas Don’t Waive All Appellate Claims

On April 18, 2017, the U.S. Supreme Court heard oral argument in Kokesh v. Securities and Exchange Commissiona case which could determine whether the Securities and Exchange Commission’s power to disgorge ill-gotten gains is subject to a statute of limitations.  The SEC currently uses disgorgement as a tool to take in billions of dollars in payments annually from defendants in its enforcement actions. 
Continue Reading SEC Disgorgement Power – Time Running Out?

In its recent declination to review the Third Circuit’s decision in In Re: Grand Jury Subpoena, a case involving the contours of the crime-fraud exception to the attorney-client privilege, the U.S. Supreme Court leaves intact the Third Circuit’s conclusion that by merely informing a client of the applicable law, asking clarification questions, and advising against potentially illegal conduct, an attorney’s actions constituted advice in “furtherance of a crime or fraud” and vitiated the protections of the attorney-client privilege.

Continue Reading Supreme Court Remains Silent on Crime-Fraud Exception

The U.S. Supreme Court is set to decide the circumstances in which police may constitutionally search an arrestee’s cell phone without a warrant. On April 29, 2014, the Court heard arguments in two companion cases—Riley v. California and United States v. Wuriewhich occasion the Court to define the scope of the Fourth Amendment in the digital age and strike a balance between an individual’s interest in the privacy of his cell phone contents and law enforcement’s interests in police safety and preservation of evidence. In Riley, police seized David Leon Riley’s smart phone during a traffic stop for an expired licensed plate. Using photos, videos, and call logs obtained through a warrantless search of his phone, along with two hand guns found during a search of his car, police identified Riley as a member of a gang and placed him near the scene of a gang-related shooting that occurred a couple of weeks before his arrest. At trial, although no witness positively identified Riley as a participant in the shooting, the circumstantial evidence from the phone gave the jury enough evidence to convict him of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. In Wurie, police arrested Brima Wurie near the scene of a drug transaction and took him to the police station. While there, police seized two cell phones from Wurie. Police observed that one of the cell phones—a flip phone—was repeatedly receiving calls from “my house.” Without a warrant, the officers flipped open the phone, reviewed the call log, and traced the phone number to Wurie’s apartment. Police obtained a warrant to search Wurie’s apartment, where they found crack, marijuana, and other evidence of a drug crime. Wurie was convicted of distribution and possession with intent to distribute crack, and being a felon in possession of a firearm and ammunition. 
Continue Reading SCOTUS Hears Arguments in Warrantless Cell Phone Search Cases