CA2: Def surprised at trial with unknown alleged consent search gets a post-trial evidentiary hearing on it

Defendant was surprised at trial with testimony that defendant’s wife had consented to a search of his computer prior to the search warrant issuing. Defendant moved for a mistrial. The FBI agent involved in that search was from Alabama and was on his way back when the court suggested recalling him so the issue could be fleshed out. With him unavailable, the government made and the court took a proffer. The court denied the mistrial. The case is remanded for a post-trial evidentiary hearing on her consent. United States v. Mulholland, 2015 U.S. App. LEXIS 18000 (2d Cir. Oct. 14, 2015).