iEthics

1. iEthics Barry Nelson Covert, Esq. Lipsitz Green Scime Cambria LLP 42 Delaware Ave., Suite 120, Buffalo, New York 14202 (716) 849-1333

2. Playing the Game of Finding the Adult Ordinance • Scenario – Client sends you a zoning code for a brand new percentage store or adult location. Instructs you not to contact the municipality. • Existing business gets a notice that municipality believes that they are “adult” and include the former adult ordinance.

3. Know Your Technology! (Understand SNOWDEN) • CIA and FBI are collecting everything! That really does mean everything, including your emails, electronic communications, phone calls, etc. • March 2013 CIA Chief Tech Officer “Gus” Hunt said “we fundamentally try to collect everything and hang on to it forever”. • CIA had just signed $600,000,000.00 deal with Amazon for cloud computing service.

4. They had all the information they needed on the underwear bomber case to “connect the dots.” They were unhappy with that failure!

5. The FBI Prefers the “Back Door” • FBI has persuaded internet companies to create “back doors“ for Government surveillance and are seeking $86,000,000.00 for the “Next Generation Cyber Initiative”

6. Emails on Servers Are Deemed Abandoned After Six Months! • The Electronic Communications Privacy Act currently treats emails on servers that are more than 180 days old as ABANDONED! As a result, they can be obtained via subpoena rather than a search warrant.

7. Ramifications Post-Snowden • When does the Gov’t (or Matrimonial Lawyers) argue that any electronically transferred information is subject to: • Abandonment argument and/or • Plain view exception • Is there a “reasonable expectation of privacy”?

8. Synthetic Drugs - First Amend Training Comes in Handy • Federal Analogue Act - • 1) Structurally similar in chemical composition • 2) Similar in effect upon central nervous system • 3) Meant for human consumption • Like the Miller test – the jury decides what is illegal

9. Two Attorneys Indicted in Louisiana • Accused of training, advising and instructing business owners how to store, display and sell illegal products as well as teaching stores how to detect and evade law enforcement and how to respond to customers who ask questions about spice products.  • Receiving their fees into their checking account also got these attorneys money laundering counts. 

10. Lohan vs. “Pitbull” – Lohan and her Lawyer Lose Using Lohan’s name in song was proceted by 1st Amendment – was not used in song for advertising or marketing. But, the reply to the motion to dismiss was PLAGIARIZED! • Lawyer fined $750 for lying and $750 for plagiarizing • Shit, I owe a lot of people $750!

11. Thou Shalt Not Photograph The Prosecutors Table Prominent Albany NY defense atty photographed ADA’s table including email from former bureau chief suggesting that they portray defendant as “trained warrior” because he is former Army officer who graduated West Point • Included the photo in an application for bail pending appeal • Defense atty censured

12. Object Early and Often A. U.S. v. Truman, (2nd Cir. July 25, 2012) • Arson case - Government appealed lower court granting judgment of acquittal pursuant to FRCP 29(a) • Government asked defendant to opine upon the credibility of lay and law enforcement witnesses

13. As a matter of law witnesses may not opine as to credibility of other witnesses • Government referred to defendant’s deposition testimony in which he said all police officers are “liars” to improperly suggest that defendant's view of police rendered his testimony incredible.

14. Government “misstepped” when it asserted that defendant’s son’s cooperation was voided due to his refusal to testify directly against his father.

15. B. Federal Prosecution But State Investigation • Government “lax” with respect to procuring local law enforcement reports, scientific reports, (ex. DNA and ballistics) identification proceedings

16. Rule 16 “Discovery and Inspection” • Rule 17 “Subpoena C. Improper Government Behavior 1. Bolstering case by relying upon inferences arising from a witness invocate of 5th Amendment Rights. Namet v. U.S. (S. Ct. 1963)

17. 2. Cross-examining witness regarding invocate of 5th Amendment Rights before the Grand Jury Gruneweld v. U.S. (St. Cr. 1957) 3. Asking defendant whether the FBI Agent mistaken or lying. U.S. v. Richter (3rd Cir. 1987)

18. 4. Asking character witness whether their opinion would be different if defendant were guilty. U.S v. Oshatz (2nd Cir. 1990) 5. Evidence of defendants post-arrest silence. U.S. v. Velarde Gomez (9th Cir. 2001) 6. While crossing the defendant mentioning that the prosecutor had previously seen the defendant testify. U.S. v. Lowrimore(8th Cir. 1991).

19. 7. Prosecutor may not vouch for the credibility of a witness or the truth of the Government’s evidence. U.S. v. Miller (2nd Cir. 1997) 8. May not convey the impression that evidence known to prosecutor supports the charges. U.S. v. Youngs (S. Ct. 1985) 9. Prosecutors mistaken statement of law combined with unwarranted attack on defense counsel’s integrity. U.S.v. Rodriguez (9th Cir. 1998)

20. 10. Defendant’s failure to testify. Griffin v. U.S. (S. Ct. 1965). Unless defense counsel opens the door. U.S. v. Johnson (5th Cir. 1997) 11. Absent timely and specific objection to summation arguments, no appellate review unless they constitute plain error.