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MAKing new lAw, winning new trials

a new trial for a defendant In United States v. Evans, Epstein led a team working on the appeal of Robert Evans. In the US District Court for the District of Connecticut, Evans was found guilty of drug possession with intent to distribute, but acquitted of possession of a firearm during and in relation to a drug tracking crime.

conviction and remand the case to the district court for a new trial. Although reversals of federal criminal convictions are rare, it is even rarer for a United States attorney to agree to vacate a conviction. The Second Circuit granted the government’s motion.

Former associate Dan Fisher also worked on the case.

Evans raised the defense of entrapment, arguing that a government informant originated the idea of exchang- ing drugs for firearms and induced Evans to make the exchange with an undercover FBI agent. To rebut this defense, the government relied on the unnoticed and unqualified expert testimony of two FBI agents and a “guilt-by-association” argument in summation to demonstrate that Evans was predisposed to commit the crimes charged.

In its appellate brief, the Shearman & Sterling team argued that the trial court’s erroneous admission of the FBI agents’ improper expert testimony over defense counsel’s objections and the government’s impermis- sible “guilt-by-association” argument denied Evans a fair trial.

Associate John Scalzo, who worked on the brief and has participated in several pro bono criminal cases, says drafting a Second Circuit appellate brief in a criminal context is stylistically dierent than the briefs he works on more regularly. With Epstein’s leadership, he adds, the process was very smooth.

“Jeremy has significant experience in this area,” notes Scalzo, “which makes it a tremendous learning experience. He identified the potential appealable issues; had us research those issues; and once he was satisfied with our research, we prepared a draft of the brief. Jeremy incorporated his revisions, and it was filed.”

After reading the brief, the United States Attorney for the District of Connecticut agreed that the testi- mony was admitted in error and moved to vacate Evans’s

appointments under the cja The Criminal Justice Act was created to ensure that all defendants receive the eective assistance of counsel guaranteed by the Sixth Amendment. CJA panel mem- bers agree to represent low-income individuals accused of crimes. Epstein serves on the Second Circuit CJA panel, partner Patrick Robbins serves on the federal court’s panel in the Northern District of California, and partner Tai Park serves on the panel for the Southern District of New York.

...the court Agreed with us, And Adopted A... stAndArd we hAd AdvocAted....

Both Scalzo and Agor say they enjoy the opportunity to work on pro bono criminal cases like these. “You tend to get a level of substantive experience and responsibility that you might not otherwise get on a client matter,” says Scalzo.

In addition, both reflect on the larger implications. “On their own, defendants like these would not have access to representation like Shearman & Sterling can provide,” notes Agor. “It’s great that they can receive it through the CJA.”


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