A Weekly Summary of Snippets of Justice From the Federal Courts

• The Mmahat case from the Fifth Circuit exposes a new prosecutorial ploy which, if left to run wild, will certainly undermine the integrity of the disclosure obligations of the Brady rule. In that case the Court approved the "unfortunate" practice of burying defense counsel with a 500,000-page cache of documents; and ruled that prosecutors have no duty to "point the defense to specific documents" within that mass of materials. The ruling presages a practice that will now be pushed to its logical limits - and beyond - as prosecutors vie with each other to reach the 1,000,000-page cache of documents and then ever upwards.
  
•  Once again Judge Scheindlin of the Southern District of New York has used her signature sense of justice to correct an abuse of rights that many judges would ignore. In the Greaves case, Judge Scheindlin ruled that a prisoner did indeed have a "liberty interest" in a prison work-release program, such that it could not be denied to him on the pretext that he had dared to wear a watch for which he had not been issued a permit by prison officials.
  
• We report this week on two unpublished decisions of significance. First, in the Mercedes case, Judge Sweet from the Southern District of New York vacated a previously imposed sentence because the Government's three year delay in seeking to imprison the defendant had "arguably created a reasonable expectation of continued freedom" on the defendant's part and that "executing [the] sentence at this juncture would disrupt his reintegration into the community and undermine his progress toward rehabilitation, one of the primary objectives of the criminal law." In the second unreported decision, the Taylor case, Judge Hawkins from South Carolina dismissed with prejudice a series of indictments against a number of members of the South Carolina State House due to "egregious prosecutorial misconduct" that was "so outrageous as to offend the sensibilities of the court." He also reluctantly concluded that several acts of the Government constituted subornation of perjury.

• With the review of these two unpublished decisions, Punch and Jurists is pleased to announce the inauguration of its Unpublished Decisions Section on its Homepage. The full text of both of these decisions is now available by going to the button marked Research Tools and then clicking on Unpublished Decisions. Over time, we hope that many lawyers will be encouraged to send us notable unpublished decisions (or briefs or other noteworthy materials) for posting on the Internet. This site will only be as useful as the material it contains.

Two weeks ago, we reported a case, U.S. v. Wilson, 105 F.3d 219 (5th Cir. 1997), in which the Fifth Circuit held that a defendant could not be denied the benefits of the Guidelines "safety-valve" provisions (U.S.S.G. § 5C1.2) simply because a co-conspirator possessed a firearm. One of the five indicators of reduced culpability under § 5C1.2 is the requirement that the defendant must not have used "violence or credible threats of violence or possess[ed] a firearm or other dangerous weapon (or induce[ed] another participant to do so) in connection with the offense." Here, in a similar case, another Circuit Court affirmed the same principle. Like the court in Wilson, the D.C. Circuit ruled that, despite "the tension between application note four's definition of 'defendant' . . . and application note three's broad definition of 'offense', which includes 'all relevant conduct' ", the safety valve provision requires that "the defendant" must do the possessing; and that co-conspirator liability for constructive possession "cannot establish possession under the Guidelines' safety valve." The Court concluded that "leaping automatically from a defendant's participation in an ongoing drug business to a finding that he constructively possessed a weapon owned by another participant . . . would undermine the purpose of the safety valve by rendering ineligible for it many of those less culpable participants in drug trafficking enterprises whom Congress intended to relieve from statutory minimum sentences."

This case raises an unusual Sixth Amendment issue: Once a defendant has been indicted, and the Government knows he is represented by counsel, does the right to counsel carry over to subsequent related charges so as to prevent the Government from using incriminating statements elicited after the defendant has been first indicted?

The defendant in this case was indicted on March 28, 1995 under a sealed indictment that charged him with bank theft, money laundering and witness intimidation. Later that same day, the Government set up an elaborate sting operation to get the bloke to admit that he actually planned to murder the same witness he was accused of intimidating so it could pile on additional charges. Once he met with the undercover FBI agents, and confirmed that he was willing to pay money to have the witness eliminated, the defendant was hit with a superseding indictment that charged the additional crime of attempted murder of the witness. The defendant argued that the Government's ploy of eliciting the additional incriminating and uncounselled statements after he had already been indicted for essentially the same crime violated his Sixth Amendment right to counsel.

The Third Circuit agreed. It noted that the Sixth Amendment right to counsel attaches "at or after the initiation of adversary judicial criminal proceedings - whether by way of formal charge, preliminary hearing, indictment, information, or arraignment"; and that the Government is prohibited from "deliberately eliciting incriminating evidence from an accused 'after he has been indicted and in the absence of his counsel'." The Court also analyzed the so-called "offense specific" rule which the Supreme Court explained in McNeil v. Wisconsin, 501 U.S. 171 (1991). In that case the Supreme Court made clear that the Sixth Amendment right is "offense specific." In other words, the Government may interrogate an accused about unrelated, uncharged offenses to which the right of counsel has not yet attached.

However, the Third Circuit emphasized that the right to counsel "carries over" to "closely related" but uncharged crimes. Otherwise the Government could too easily circumvent the Sixth Amendment right to counsel merely by charging a defendant with additional unrelated crimes after questioning him without counsel. After adopting the closely related exception to the offense specific requirement of the Sixth Amendment, and based on its conclusion that the initial charge of witness intimidation and the subsequent charge of attempted murder were "so inextricably intertwined", the Court ruled that the incriminating statements elicited from the defendant during the sting operation on the afternoon of March 28 were obtained in violation of his Sixth Amendment right to counsel. Since the only evidence on the attempted murder charge was the evidence obtained during the sting operation, the Court ruled that the conviction for attempted murder had to be vacated because it was obtained in a manner that violated the Sixth Amendment.

The case also raises an increasingly important Guidelines issue, namely what standard of proof applies at sentencing to support a charge of obstruction of justice under U.S.S.G. § 3C1.1? Ever since the Supreme Court ruled, in U.S. v. Dunnigan, 507 U.S. 87 (1993), that the Constitution permits the court to enhance a defendant's sentence for perjury committed at trial without undermining the Fifth Amendment's right to testify on his or her own behalf, the Government has been encouraged to assert obstruction of justice charges whenever a defendant testifies - fulfilling the prophecy of the Fourth Circuit that "with an automatic § 3C1.1 enhancement added to the ante, the defendant may not think testifying worth the risk." U.S. v. Dunnigan, 944 F.2d 178, 184 (4th Cir. 1991). The only issue that remains in dispute is whether the trial court must determine that the additional crime of perjury was established by the flimsy "preponderance of evidence standard" or by some greater burden of proof.

Following the lead of the Second, Eighth and D.C. Circuits, the Third Circuit ruled that the Guidelines require a higher standard than a preponderance of evidence on this issue. Thus, it called for evidence that is "clear and convincing" (a distinction that is technically important but far too easy to circumvent since it merely requires some ponderous statement by the court that perjury was established by clear and convincing evidence). Nevertheless, the decision is significant because it reviews the standards of proof required in the various Circuits for a § 3C1.1 conviction; and it may even portend a rising concern about the ease by which defendants can be convicted of the crime of perjury, without two mainstays of our Constitution - an indictment and a jury conviction based on proof beyond a reasonable doubt.

This case raises an old question - what constitutes vindictive sentencing after a defendant has successfully appealed his first conviction? In its seminal case on that topic, the Supreme Court ruled, in North Carolina v. Pearce, 395 U.S. 711, 725 (1969) that "due process of law . . .requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." While that direction seems clear, the Fifth Circuit admits in this case that there is confusion among the Circuits about the precise standard for measuring vindictive sentences, and even the law in the Fifth Circuit is "muddled."

The defendant in this case was convicted of three counts of making a false entry in bank records ("Count I"), conspiracy to commit bank fraud ("Count II"), and bank fraud ("Count III"). He was given five years probation on Count I, and 51 months imprisonment on Counts II and III, to run concurrently. In an earlier appeal, reported at U.S. v. Campbell, 64 F.3d 967 (5th Cir. 1995), the Fifth Circuit reversed the convictions on Counts II and III because of insufficient evidence, and remanded the case for resentencing. On remand, the district court sentenced the defendant to 41 months imprisonment on Count I - the count for which he had previously received probation. The defendant again appealed, arguing that the new sentence was vindictive within the meaning of Pearce. After a somewhat complicated review of two competing methodologies for analyzing a Pearce claim - the "aggregate package approach" and the "remainder aggregate" or the "count-by-count" approach - the Court chose to adopt the "aggregate package approach" because of its "inherent flexibility." Using that approach and because the sentence on remand (41 months) was "plainly less severe" than the original sentence (51 months), the Court ruled that the Pearce presumption of vindictiveness did not apply to the new sentence imposed in this case. While one will not glean much from this decision about when the Pearce vindictiveness standard does apply, at least the Court does collect a lot of cases that discuss and attempt to distinguish the two competing theories mentioned.

United States v. Mmahat, 106 F.3d 89 (5th Cir. 1997) (Judge Smith)

This case gives new meaning to the concept of burying defense counsel alive and to the proposition (discussed in the Quote of the Week below) that prosecutors must seek "truth and justice" in their quest for convictions.

The defendants in this case were convicted of misapplying bank funds. Their principal defense was that they had been authorized by board resolutions to negotiate and approve loans on whatever terms they saw fit. After the trial they discovered the missing board resolutions, and they sought a new trial on the grounds that the Government had withheld the missing documents in violation of the disclosure rules laid down by the Supreme Court in Brady v. Maryland, 373 U.S. 83 (1963). Both the trial court and the Fifth Circuit agreed that the documents "were material and might have affected the jury's verdict had they been introduced at trial." However, both courts ruled that the defendants had failed to use due diligence in searching for the exculpatory documents.

And why? Well, it seems that the missing board resolutions had been fortuitously buried in a "500,000-page cache of documents" to which the Government had given them "access" before trial. Although even Judge Smith had to admit that "the facts surrounding this claim are unfortunate", he concluded that "there is no authority for the proposition that the government's Brady obligations require it to point the defense to specific documents within a larger mass of materials that it has already turned over."

On the basis of that ruling, prosecutors will now test the 1,000,000 document limit - and beyond. The Court also rejected a contention that a nine year delay in bringing the indictment had unfairly prejudiced the defendants. It cited its fatuous holding in U.S. v. Crouch, 84 F.3d 1497 (5th Cir. 1996) which held that the only way a defendant can win a claim of excessive pre-indictment delay is to prove sinister prosecutorial motives. As we submitted when we first reviewed the Crouch case, the premise of that holding is sublimely naive because, absent a career-ending admission from a prosecutor, the demanding burden of proving a sinister prosecutorial state-of-mind can probably never be met. As Judge Politz observed in his dissent in that case: "Today's decision directs that despite the severity of the prejudice to the defendant, and ignoring the length of the pre-indictment delay, if a defendant cannot prove improper prosecutorial motive, no due process violation may occur. This is, to me, a smothering of fundamental concepts of justice and the community's sense of fair play." (Id., at 1525).

This case raises an interesting and timely issue: May a court grant a downward departure at sentencing based on governmental misconduct? Here, the trial court found that the Government had engaged in misconduct by entering into plea negotiations with the defendant in the absence of his attorney. Although the judge was unable to determine what the result of those negotiations might have been, it did conclude that the defendant "reasonably believed he had no choice but to go to trial." Thus it concluded that the defendant had been prejudiced as a result of the government's misconduct, and it granted a three level sentence reduction. The Government squawked - apparently arguing that it could not be punished for misconduct by having that misconduct incorporated in the sentence.

On appeal, the Ninth Circuit delicately skirted that precise question; but it did conclude that under Koon v. U.S., 135 L.Ed.2d 392(1996) a departure is permitted if the case is "unusual enough for it to fall outside the heartland of cases in the Guideline" and that here "the prejudice Lopez encountered as a direct result of the government's conduct was, in our view, significant enough to take this case out of the heartland of the Guidelines." (Id., at 311). In short, without directly answering whether the Government may be punished for its misconduct by having that misconduct incorporated in the sentence, the Court did approve a departure that derived from Governmental misconduct due to the resulting prejudice to the defendant - and that theory could open up a whole new range of departure requests.

The issue in this case was whether a defendant may be denied a sentence reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b) when he admits the factual basis for his guilt, but challenges the legal basis for the sentence. Here, the defendant pled guilty to bank fraud in the nature of a check kiting scheme. His presentence report recommended that he be charged with some $450,000 in losses due to his conduct. The defendant objected and argued that the Government had failed to establish that he had the requisite fraudulent intent for the charged offense when he deposited nine checks totaling some $450,000 in his checking account; and that he should only be held responsible for $35,500 which he withdrew from his account after the bank had advised him that checks drawn on that account would not be honored. The trial court refused to give him the additional one-point sentence reduction because his counsel had objected to the amount of loss determination.

On appeal, the Eleventh Circuit agreed that the trial judge had committed legal error. In a reprise of its previously published decision reported at U.S. v. Smith, 101 F.3d 98 (11th Cir. 1996), the Court again affirmed that "a defendant who admits factual guilt need not silently accept any punishment that the government chooses to mete out, however incommensurate with the underlying conduct. . . . Otherwise, the constitutional rights to effective assistance of counsel and due process are illusory. Thus, . . . a defendant may not be denied a reduction under § 3E1.1 solely for exercising the right to challenge the legal propriety of his punishment under the criminal code and/or sentencing guidelines." (Id., at 351-52).

Greaves v. State of New York, 951 F.Supp. 33 (S.D.N.Y. 1996) (Judge Scheindlin)

Here's another gem from Judge Scheindlin, who continues to prove that "just like painting by the numbers is not art, sentencing by the numbers is not justice." (United States v. Kuhl, 816 F.Supp. 623, 627 (S.D.Calif. 1993)). In this case, the plaintiff, a prisoner at New York's Fishkill Correctional Facility was released in 1994 and placed in a Temporary Release Program ("TRP"), where he was allowed to live and work outside the prison facility five days a week. About a year later, he returned to Fishkill for a required two-day stay and during a search it was discovered that he had committed a particularly ignominious crime: he was wearing a different watch than the one for which he had previously been issued a permit. He was immediately placed in solitary confinement. He brought a civil rights action against the prison officials, arguing that he had been denied a "liberty interest" in his continued participation in the TRP, in violation of his Federal due process rights.

The prison officials moved for summary judgment, which Judge Scheindlin denied. She noted that this was not "an administrative decision to move a prisoner from one part of the prison to another but rather the full time imprisonment of a man who had been living outside the prison five days a week" and that the prisoner's subsequent placement in solitary confinement "constitutes a 'major disruption' of his life and afflicts an 'atypical and significant hardship'." (Id., at 35-36). Reasoning that one need not be a genius to comprehend the enormous differences between living a productive life in a society of free men and women and being placed in solitary confinement, she concluded that, under the standards laid down by the Supreme Court in Sandin v. Conner, 132 L.Ed.2d 418 (1995), the prisoner "surely had a liberty interest in his continued participation in the TRP" with the result that the plaintiff did indeed have an "actionable claim" under 42 U.S.C. § 1983. And all this exquisite cruelty was over a wrong watch!

United States v. Rafael Mercedes, 90 CR 450 (S.D.N.Y. 1997) (Judge Sweet) (Unreported)

A similar example of the absurdities often faced by prisoners was seen in this unreported decision by Judge Sweet, which was issued on March 14, 1997. Here are the facts. In 1990, while the defendant was serving a State sentence, he was turned over to Federal officials to face new federal charges. He ultimately pled guilty to several charges of altering motor vehicle identification numbers and he was sentenced to 30 months imprisonment to run consecutively to his State sentence. He was in Federal custody from November 28, 1990 to February 13, 1992, when he was turned back to the State authorities to finish serving his State sentence. On April 13, 1993, he was released from State custody "on life parole without being turned over to federal authorities." From that date until September 11, 1996 he continuously reported to his State parole officer and complied with all the conditions of his parole. On September 11, 1996 he was arrested on a Federal warrant for failure to surrender to serve his Federal sentence.

He then filed a motion to vacate his Federal sentence, pursuant to 18 U.S.C. §§ 3582(c)(1)(B) and (c)(2). That statute provides, in relevant part, that "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35" of the Fed.R.Crim.P.; and the defendant argued that his motion was premised on 28 U.S.C. § 2255. The Government countered that the defendant was not eligible for relief under § 2255 because he could not show that an error of "constitutional magnitude" occurred and because he was not "a prisoner in custody under a sentence of a court" within the meaning of § 2255.

Judge Sweet disagreed. First, he ruled that the defendant was "in custody" within the meaning of § 2255, and "the fact that Mercedes is in state custody, rather than federal custody, is irrelevant." Second, Judge Sweet addressed the issue of whether the Government's unexplained delay in executing the sentence constituted a "waiver" of jurisdiction "such that the 'fundamental principles of liberty and justice' secured by the Due process Clause of the Fifth Amendment would be violated by requiring that individual to serve the sentence." Citing U.S. v. Merritt, 478 F.Supp. 804, 806-07 (D.D.C. 1979), Judge Sweet ruled that "[w]hen a prisoner is released prior to service or expiration of his sentence through no fault or connivance of his own, and the authorities make no attempt over a prolonged period of time to reacquire custody over him, he will generally not be required at some later time to serve the remainder of his sentence." He further concluded that "the fact that Mercedes was at liberty for over three years evidences a significant lack of diligence on the part of the Government in assuring that Mercedes federal sentence was carried out" and that "Mercedes was living openly and notoriously in the area during the entire three and one-half years after his erroneous release, was employed and filed two tax returns with the federal government."

In summary, Judge Sweet ruled that the "Government's prolonged inaction arguably created a reasonable expectation of continued freedom on Mercedes' part" and that "executing Mercedes' sentence at this juncture would disrupt his reintegration into the community and undermine his progress toward rehabilitation, one of the primary objectives of the criminal law." For all of those reasons, the defendant's Federal sentence was vacated. (Because we are confident that this decision will never be published, Punch and Jurists has decided to make it available by posting it in the "Unpublished Decisions" section of our Homepage on the Internet. If you don't have access to the Internet and wish to receive a copy, just send us a check in the amount of $6.95 to cover the costs of copying and handling, and we will send a copy to you. Ask for the "Judge Sweet" decision.)

United States v. Luther Langford Taylor, 956 F.Supp. 622 (D.S.C. 1997) (Judge Hawkins)

Attorney Lionel Lofton from Charleston, South Carolina has sent us one of those extraordinary decisions (unreported, of course, for reasons that will become apparent), this one written by Judge Hawkins from the District of South Carolina. In his 86 page decision, Judge Hawkins dismissed with prejudice a series of indictments against a number of members of the South Carolina State House due to "egregious prosecutorial misconduct" that was "so outrageous as to offend the sensibilities of the court." The case arose out of an FBI sting operation, code-named "Operation Lost Trust" in which the Government attempted to ensnare various legislators based on the efforts of its star witness, an erstwhile lobbyist-turned-snitch, who was basically allowed to "choose the legislators he wished to solicit . . . for whatever purpose - . . . and to protect those he wished . . . - as he saw fit." The snitch was well paid for his services, initially receiving $2,000 a month and later $4,000 a month from the Government, and he was even promised a bonus of $150,000 for the juicy convictions that were so desperately craved. The defendants charged a pattern of misconduct that extended beyond the local FBI and U.S. Attorney's offices to a pattern of dissembling by FBI Headquarters and the Department of Justice (and its infamously impotent Office of Professional Responsibility) as well. Specifically the defendants alleged that the Government had withheld key exculpatory evidence and had lied to the Court about the existence of Brady materials; that the Government had allowed perjured testimony to be presented to the Court; that the Government had engaged in improper pretrial publicity and in fundamentally unfair investigative practices; and that the Government had withheld evidence of its star witness' drug usage during the entire six year course of the proceedings.

Judge Hawkins agreed that the "nature and breadth of [the Government's] misconduct is indicative of the drastic steps the prosecution took to win these cases" (Order, at p. 3); that "the involvement of an FBI agent in this entire incident was - and is - shocking to this court" (Id., at p. 57); that it was "evident" that the star witness had "purchased and/or used cocaine at least periodically during the time he was employed in the sting through the times he testified" (Id., at p. 62); that the Government had "lost control of its star witness" (Id., at 82), who "at times . . . literally took over the investigation and directed its course" because the Government was afraid he would pull out of the investigation and "ruin their cases" (Id. at p. 67); that the Government had withheld "volumes of exculpatory materials" (Id., at p. 79); and that the witness had perjured himself at earlier trials and before the Grand Jury and that "the government had taken no steps to correct the matter." (Id., at p. 12). After citing the Supreme Court's oft-quoted advice about the proper methods of conducting a prosecution (see Quote of the Week below), Judge Hawkins concluded with this harsh condemnation: "Most offensive to this court, however, is that the government sat silent -- when it knew that its silence would not only foil the efforts of the defendants to fully develop defenses to which they were entitled, but would misrepresent facts to both the Grand Jury and the trial jury, and mislead the court to such an extent as to effect its rulings at trial and in collateral proceedings. As reluctant as this court is to call it such -- this silence in several instances constitutes subornation of perjury." (Id., at 84). As part of its mission, Punch and Jurists has posted this entire remarkable decision on its Website at http://fedcrimlaw.com/. For those who do not have access to the Internet, Punch and Jurists will be happy to send readers copies of the decision on a floppy disk, formatted in several different formats. Just send us a check in the amount of $12.95 to cover the costs of preparing the disks and mailing, and we will mail it to you. Ask for the appropriately named "Lost Trust" decision.

Quote of the Week - The demonizing game of tacking skins of victims to the wall!

"While lawyers representing private parties may -- indeed, must -- do everything ethically permissible to advance their clients interests, lawyers representing the government in criminal cases serve truth and justice first. The prosecutor's job isn't just to win, but to win fairly, staying well within the rules. [Citations omitted]. As Justice Douglas once warned, '[t]he function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of the people as expressed in the laws and give those accused of crime a fair trial." Donnelly v. De Christoforo, 416 U.S. 637, 648-49 (1974).