Vol. 4, No. 23              As Published in the Advance Sheets on June 9, 1997                 Copyright © 1997
 

Highlights of this Issue:
 

• In its final rush for adjournment, the Supreme Court has issued two more opinions dealing with current criminal law topics. First, in Richardson v. McKnight , a sharply divided Supreme Court held that prison guards who are employees of a private prison management firm are not entitled to qualified immunity from suits by prisoners charging a violation of 42 U.S.C. § 1983. While that decision may appear to permit more lawsuits arising out of unlawful conduct by prison guards, it will probably have little practical impact for various reasons noted infra. In Lindh v. Murphy , the same divided Court ruled that the new provisions of the Antiterrorism and Effective death Penalty Act which limit habeas corpus petitions do not apply retroactively to noncapital cases that were already pending when the new legislation was enacted on April 24, 1996.

 
• The First and Second Circuits addressed some of the complex legal and social issues that relate to restitution, in the Vaknin and Berardini cases. Vaknin is particularly helpful because of its extended discussion of the need for some "causal connection" between the crime charged and the victims' losses; while Barardini raises important social issues about the goals of restitution by suggesting a blueprint of how the Government should pursue defendants with large restitution orders for periods up to 20 years - even if the victims are unknown or never come forth to collect.

 
• The Braxton case from the Fourth Circuit is an en banc decision that addresses the issue of the voluntary nature of a confession and shows the evident concern of the courts about the Supreme Court's rule that a confession will be deemed involuntary if it is the result of "any direct or implied promises, however slight."

 
• In the Knox case, the Fifth Circuit reversed a money laundering conviction on the grounds that the defendant had been entrapped as a matter of law. Here, the Court concluded that the Government had failed to prove that the defendant - a preacher - was in a position to launder funds - and thus the evidence to prove the defendant's predisposition was insufficient as a matter of law.

 
• In the Tsinhnahijinnie case, the Ninth Circuit reversed a conviction because it found that the prosecution had failed to prove that the defendant had committed the crime charged on any date within or reasonably near the period charged in the indictment. While the Court agreed that the date of the crime was not an element of the offense, it noted that the Government's position overlooked the basic functions of an indictment.

 

In a decision that at first glance appears far more potent than it is, the Supreme Court has held that prison guards who are employees of a private prison management firm are not entitled to qualified immunity from suit by prisoners charging a violation of prisoners' civil rights under 42 U.S.C. § 1983. The majority decision, written by Justice Breyer, affirmed the decision of the Sixth Circuit in McKnight v. Rees, 88 F.3d 417 (6th Cir. 1996), principally because its examination of the "history and purpose [of privatized prisons] . . . reveals nothing special enough about the job or about its organizational structure that would warrant providing these private prison guards with a governmental immunity." The impact of that decision will be sharply limited both by the extremely narrow language of the ruling and by the legislation that we can certainly expect to be proposed by the Department of Justice to overturn this decision. The Court only focused on the question of § 1983 immunity. Thus, it did not determine the issue of § 1983 liability, and whether the prison guards were entitled to raise a defense that they were not liable because they were acting "under color of State law". The majority further limited the scope of its ruling by expressly noting that it had not decided whether the defendants might be able to assert a special "good faith" defense. Perhaps the most significant aspect of the decision is that it continues to show a deepening rift between the so-called moderates on the Court, and the conservative bloc (consisting of Justices Rehnquist, Scalia, Thomas and Kennedy) which caustically argued that "function rather than status governs the immunity determination." Won't it be wonderful when even more Government agents can hide behind the shield of qualified immunity?

The same 5-to-4 majority of the Court also held the new provisions of 28 U.S.C. § 2254(d), which dramatically limit habeas corpus petitions, do not govern noncapital cases that were pending before the effective date (April 24, 1996) of the recently enacted Antiterrorism and Effective Death Penalty Act. Specifically, the decision reversed the Seventh Circuit's holding in Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996); and it resolved a deepening Circuit split on the issue confronted. Once again, the dissenting bloc (which has long advocated fewer prisoner lawsuits) noisily disagreed - calling the majority's analysis "truncated", "incomplete" and "wrong."

United States v. Berardini, 112 F.3d 606 (2nd Cir. 1997) (Judge Kearse)

Both of these cases deal with some of the knotty issues that flow from the legislative mandate that restitution be required in a greater number of criminal cases; and Vaknin is particularly illuminating because of its extended discussion of the so-called "causation quandary" - i.e., whether there must be some direct causation between the crime of conviction and the losses incurred by the victims, or whether, as the Government argued, restitution should be imposed as long as the victim's losses would not have eventuated "but for" the criminal activity. For example, in one of the three cases consolidated for this appeal, long before any criminal charges had been filed, one defendant and the bank in question had entered into a "forbearance agreement" under which the bank accepted a lump-sum payment of $450,000 in full satisfaction of an outstanding indebtedness in the amount of $611,500. The district court ordered that defendant to repay, as part of his restitution obligations, the $161,500 difference; and he appealed arguing that there was not a sufficient "causal link" between his crime of bribery and the bank's negotiated "loss" of $161,500.

In his inimitable style, filled with his usual quota of archaic polysyllabic words, Judge Selya reviewed the legal landscape of restitution in general, and the history and purpose of the Victim and Witness Protection Act (VWPA) (18 U.S.C. §§ 3663(a) and 3664(a)) in particular. He rejected both the defendants' calls for a "direct" causation standard and the Government's call for a "but for" causation standard. While he agreed that the legislative history of the VWPA signaled a Congressional preference for "rough remedial justice" so as not to unduly complicate and prolong the sentencing process, he observed that "concerns of fairness require us to reject the unbridled but for causation standard that the government propounds." He then offered two "bedrock principles": first, "restitution should not be ordered in respect to a loss which would have occurred regardless of the defendant's conduct"; and, second, "restitution should not lie if the conduct underlying the offense of conviction is too far removed, either factually or temporally, from the loss." (Id., at 589). Based on those principles, the Court adopted a modified "but for" standard of causation: "The government must show not only that a particular loss would not have occurred but for the conduct underlying the offense of conviction, but also that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally). The watchword is reasonableness." (Id., at 590). Then, because it found that the record was insufficient in two of the appeals to show the "requisite connectedness", it remanded those restitution orders back to the district court for further findings that there was sufficient connection between the crime and the restitution ordered.

In the Berardini case, the Second Circuit reviewed a claim that the lower court had erred by ordering restitution of $27,000 to 42 victims who had not been located. The Court found no "theoretical error or abuse of discretion" in the restitution order. The more interesting aspect of that decision was the detailed blueprint given by the Court to the Government about procedures it might utilize to extend the restitution payment period from the old five-year limitation to the current 20-year limitation. [The law applicable to the restitution obligation imposed in this case provided that, when an order required restitution within a specified period or in specified installments, "[t]he end of such period or the last such installment shall not be later than . . . five years after the end of the term of imprisonment imposed." 18 U.S.C. § 3663(f)(2) (1994), (repealed by AEDPA § 205(d)(2), 110 Stat. 1214, 1230). With little discussion, that five year limitation was replaced in 1996, principally by the provisions of 18 U.S.C. § 3572(d)(2), which now permits the court to fix the length of time over which scheduled payments must be made, the only limitation being that it shall be "the shortest time in which full payment can reasonably be made."] Here, the Court gratuitously laid out a map for the Government, telling it how to lengthen the period during which a defendant must pay restitution, even under the law prevailing at the time of this sentence. It explained that the Government could file a lien on behalf of the victims, before the five-year period was over, and that such lien would remain effective for 20 years after the original judgment. It explained that if the defendant failed to make the required restitution payments within the five-year period, the Government could move the court to punish the defendant for failing to comply with his supervised release obligations. It even explained that the Government could seek to have the balance of any payments paid to it as trustee; and it concluded by noting that if the missing victims were never located, "it is not clear that the court would have the authority" to ever give those funds back to the defendant.

One lesson that can be gleaned from this decision is that it shows how the public's wrath has turned the concept of punishment into a system of harsh, unforgiving and often counter-productive measures. Clearly, there is no dispute with the proposition that defendants should be required to disgorge all of their ill-gotten gains and to reimburse their victims to the extent that they still possess the fruits of their crimes. However, where a defendant truly no longer possesses the fruits of his crime, either directly or indirectly, the imposition of huge restitution orders has become a political game which may appease a vengeful public but which in reality is an exercise in self-delusion. As one court has noted: "An impossible order of restitution . . . is nothing but a sham." (U.S. v. Mahoney, 859 F.2d 47, 52 (7th Cir. 1988)). To couple that impossible order of restitution with the mandate that it be paid over a period of 20 years after the defendant's release from a lengthy prison term and after the defendant has been stripped of all assets through the forfeiture laws is an exercise in futility that is self-defeating. It ignores the plights of the defendants' families, which are often forced to go on welfare. It is counterproductive to the goal of assisting the defendant's return to society by removing all incentives to become a productive and self-supporting human being. Most of all, such mandates promote disrespect for the law. As one court observed: "A district court's failure to make a restitution order with which a defendant could possibly be expected to comply threatens respect for judicial orders generally." (U.S. v. Bailey, 975 F.2d 1028, 1032 (4th Cir. 1992)). The solution, we submit, is not to impose impossible, vindictive and self-destructive orders of restitution, coupled with directives to the Probation Office encouraging it to seek the re-incarceration of defendants who are unable to meet the demands of their restitution orders, but to re-think the wisdom of the huge restitution orders and to put reasonable limits on the current philosophy that allows "the majoritarian chorus [to] dictate the conditions of social life." See the Quote of the Week below.

The Government appealed from an order of Judge Hallanan, in which she granted a defense motion to suppress a statement given by the defendant to law enforcement officials. She ruled that the statement was involuntary because: (a) the defendant was intimidated by the presence of two law enforcement officers; (b) his statement was the result of "threats and implied promises"; and (c) the agents had failed to advise him "why they needed to question him or tell him of the possible consequences he faced as a result of answering their questions." (Id., at 780). An en banc Fourth Circuit agreed to hear the case; and it reversed, holding that the statement was voluntary and that Judge Hallanan had erred when she suppressed it. Judges Hall and Murnaghan dissented. The majority and dissenting opinions show two remarkably different readings of the law on a very important topic.

The majority agreed that the test for determining whether a statement is voluntary under the Due Process Clause is "whether the confession was 'extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any proper influence." Hutto v. Ross, 429 U.S. 28, 30 (1976). [As Punch and Jurists has frequently pointed out, that test does not seem to apply to the determination of the voluntary nature of plea agreements - where the courts always seem to ignore the existence of "any direct or implied promises, however slight."] In any event, the Court then proceeded to evaluate the statement in question from the perspective of its own evaluation of the "totality of the circumstances" - a position that seems somewhat at odds with the Supreme Court's emphatic affirmation of the discretion of trial judges to make fact-intensive findings, when it ruled, in Koon v. U.S., 135 L.Ed.2d 392, 412 (1996), that "it is not the role of an appellate court to substitute its judgment" for that of the district court, at least with respect to sentencing decisions. Based on that reevaluation, the majority concluded that the lower court had committed reversible error; and it reversed her decision.

Finding that the district court had reached an entirely plausible conclusion, Judge Murnaghan disagreed. He wrote that: "An officer's threat that the defendant will serve five years in jail if he does not confess and an officer's implied promise that the defendant will not serve any time if he does confess clearly are 'sufficient to cause the [defendant's] will to be overborne and his capacity for self-determination to be critically impaired." (Id., at 787). What becomes clear is that the concept of "any direct or implied promises, however slight" appears to scare the daylights out of the courts!

The Government continues to flaunt the Supreme Court's warning in Jacobson v. U.S., 503 U.S. 540, 551 (1992) that "[w]hen the Government's quest for convictions leads to the apprehension of an otherwise law-abiding citizen who, if left to his own devices, likely would never have run afoul of the law, the courts should intervene." In this case, a preacher and his financial advisor were caught in an elaborate government sting designed to snare money launderers. Apparently lean on more suitable targets, the Government targeted this preacher, who was desperately trying to raise money for his church. Three times undercover agents gave the preacher $100,000 or more to wire to controlled accounts to prove that they were capable of providing the $10 million dollars that the preacher needed. When they finally delivered a bag full of bogus funds purportedly worth the $10 million, the defendants were arrested on money laundering charges. After conviction, the Fifth Circuit reversed the preacher's conviction and ruled that he had been entrapped as a matter of law. The Court followed the Seventh Circuit's reasoning in U.S. v. Hollingsworth, 27 F.3d 1196, 1202 (7th Cir. 1994) (en banc), where that court had reversed a similar conviction on the grounds that the Government had "turned two harmless, though weak, foolish, . . . and greedy, men into felons. . . . Even if [the defendants] had wanted to go into money laundering before they met [the agent], . . . the likelihood that they could have done so was remote. They were objectively harmless."

Essentially, the Court adopted Hollingsworth's approach that predisposition to commit a crime "has positional as well as dispositional force [a position that not all Circuits accept]. The defendant must be so situated by reason of previous training or experience or occupation or acquaintances that it is likely that if the government had not induced him to commit the crime some criminal would have done so. . . . A defendant may have the desire to commit the crime, but may be without any ability to do so." Here, the Court concluded that the Government had failed to prove that the preacher was in a position to launder funds - and thus the evidence to prove predisposition was insufficient as a matter of law.

The defendant in this case was indicted on the grounds that "on or between June 1992 and July 1992" he engaged in abusive sexual contact with a minor. After his conviction, he appealed, arguing that there was insufficient evidence to prove that he committed the crime charged on any date within or reasonably near the period charged in the indictment. The Court agreed and reversed his conviction. Apparently, "the prosecutor's case fell apart regarding the date" on which the incident of alleged abuse occurred. Its witness testified about acts that occurred in 1994 - acts for which the defendant had already been prosecuted in a Tribal Court. Undaunted, the Government argued that (a) the date of the crime is not an element of the offense, and (b) in any event the defendant must have the crime charged in August, 1992 - and that date was "reasonably near" the dates charged. The Ninth Circuit agreed that the date of the crime is not an element of the offense; but said that argument was irrelevant and overlooked the function of an indictment. "A defendant is entitled to know what he is accused of doing in violation of the criminal law, so he can prepare his defense, and be protected against another prosecution for the same offense." (Id., at 991). It continued that a person is entitled under the Fifth Amendment not to be held to answer for a felony except on the basis of facts which satisfied a grand jury that he should be charged. "The problem with this case is thus not that the government failed to prove an element of the crime, but that it failed to comply with the requirements of the Constitution." (Id., at 992).

The Government brought forfeiture proceedings against some real property suspected of being acquired and developed through drug-trafficking activities. No pre-deprivation notice was filed and no hearing held. After filing a complaint, the Government simply filed a notice of lis pendens and U.S. Marshals posted copies of the property arrest warrants at each of the seized properties. Because the properties were occupied, the Government neither posted warning signs on the properties nor changed the locks. Later the defendant filed a motion to dismiss the forfeiture, arguing that the Government's failure to provide pre-seizure notice and a hearing violated his due process rights. In response, the Government filed for summary judgment, which the district court promptly granted. On appeal, the Eleventh Circuit reversed. Citing principally U.S. v. James Daniel Good Real Property, 510 U.S. 43 (1993) and Matthews v. Eldridge, 424 U.S. 319 (1976), the court noted that the seizure of real property in a civil action requires pre-deprivation notice and a hearing except in extraordinary cases governed by exigent circumstances. The case then reviewed the factors that might constitute exigent circumstances and ruled that none of them applied in this case. The summary of the Matthews case is particularly helpful.

De La Paz v. Peters, 959 F.Supp. 909 (N.D.Ill. 1997) (Judge Castillo)

Prison cases have always been great barometers of our criminal justice system. They show how judicial winds are blowing and what it takes to "shock the conscience" of the courts. These two baubles do just that. The plaintiff in Saunders brought a § 1983 action against prison officials in Pennsylvania, alleging a number of constitutional violations. Serving a life sentence in Delaware, he was suddenly transferred to a prison in Pennsylvania. When he got there, prison officials immediately took away his medically prescribed orthopedic shoes and back brace, which were prescribed when it was learned some ten years prior that he was suffering from a degenerative disk disorder in this spine. He was issued no clothing and was forced to wear the clothing of another inmate. He was given no identification badge so he was unable to use the commissary or the law library (even though he had a case pending in Delaware - which was probably the reason for his out-of-state move in the first place). In the end, the court granted a few crumbs and dismissed a number of Saunders' claims on the usual grounds. For example, the court refused to grant a summary judgment motion to prison officials on the charge that they were deliberately indifferent to his "serious medical needs" and it held that Saunders had asserted a proper claim for a violation of his rights under the Americans with Disabilities Act. It also rejected his claims that he had been denied his rights of access to the courts, because he was unable to "prove" any actual injury. While the decision is weak, it is noted because at least the court raced through a brief description of several of the Supreme Court's recent pronouncements on the issue of prisoners' rights, and because it explains the impact of two particularly important cases, namely Lewis v. Casey, 135 L.Ed.2d 606 (1996) on the issue of access to the courts, and Sandin v. Connor, 132 L.Ed.2d 418 (1995) on the issue of whether or not an inmate can prove that he was denied a protected liberty interest.

The De La Paz case is a bit more gruesome. There, prisoner De La Paz suffered from urinary and bowel incontinence because of a bullet lodged near his spine. (He also had hepatitis.) The incontinence problem led to constant "soiling of his clothes and bedding with a resultant bad odor." That problem was so acute that doctors at his first prison ordered that he be allowed to take daily showers and be given frequent changes of clothes. Then De La Paz was moved to that Mecca known the Joliet Correctional Center, where prison officials determined that he would only be allowed to shower twice a week. When he sued for damages, the Court denied any relief. After all, it ruled, the doctors' orders from the previous prison were "stale" because they pre-dated his arrival at Joliet. But, more significantly, the court ruled that De La Paz had failed to assert a proper claim under the Eighth Amendment because (now get this) he "had not produced any evidence suggesting that the denial of more frequent showers had endangered or caused a deterioration in his health, or any other evidence demonstrating the requisite 'deliberate indifference' " by the prison officials. (Id., at 915) (Emphasis added.) Can you imagine being a guest in Judge Castillo's home?

This case is noted for its extended discussion of the admissibility of expert testimony to establish a "compulsive gambling disorder defense." Before trial, the Government moved to preclude the use of such testimony, citing a list of cases that have precluded the use of such a defense in criminal trials. The Court noted that those cases had been decided before the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), which established new standards for the admission of expert testimony under Rule 702 of the Fed.R.Evid. The Court concluded that Daubert left to the jury the role of evaluating expert testimony, but emphasized the trial court's responsibility under Rule 104(a) to screen scientific evidence in order to keep unreliable evidence out of the courtroom. In exercising that "validity test", (a) the trial court must first determine whether the expert has the "minimal educational experiential qualifications in a field that is relevant to a subject which will assist the trier of fact"; and (b) if the expert passes that threshold test, the court must then "compare the expert's area of expertise with the particular opinion seeks to offer." (Id., at 1191). Using those standards, the court permitted the use of expert testimony to establish that the defendant was a compulsive gambler at the time the alleged crimes occurred; but refused to allow the expert to testify regarding an associated feature of the compulsive gambling disorder, namely that it led to distortion in thinking and denial. That evidence, the court concluded, was not scientifically valid, was irrelevant to the crimes charged, and its prejudicial effect outweighed its probative value.

After the defendant in this case was convicted of various drug crimes, he sought post-conviction relief on the unusual grounds that the prosecutor was without authority to represent the United States. The case was prosecuted by a Deputy District Attorney in the County of Sacramento who, from time to time, conveniently wore two hats. Periodically he was appointed to act as a Special Assistant United States Attorney - a ploy whose purpose was so obvious that it caused Judge Karlton to write: "The draconian penalties imposed under the federal sentencing guidelines . . . provide a great incentive for cases such as this where criminal activity, uncovered by local law enforcement in the course of their investigation of state crimes, is transmuted into a violation of federal law by the happenstance that a local deputy district attorney has been cross-designated as a Special Assistant United States Attorney. Whether this procedure is consonant with the notions of 'our federalism', assiduously developed in a different context in recent years by the United States Supreme Court, appears to this trial judge to be at least open to question." (Id., at 1275, n. 1).

The creative defense cited a statute (5 U.S.C. § 3372(a)) which permits the Federal Government to assign special tasks to employees of a local governmental unit - but such appointments may not exceed four years. Following the "tortured" history of the recurrent appointment of this prosecutor to the U.S. Attorney's Office, Judge Karlton concluded that "no one was minding the store." Clearly, this prosecutor had been appointed to act as a Special Assistant for periods that exceeded four years - which the judge concluded was "hardly a matter of small concern, given the awesome authority and discretion reposed in United States Attorneys and, by extension, their Assistants." (Id., at 1276, n. 2).

The Government showed its consternation by responding with its own variety of creative arguments. For example, it argued that the defendant had waived any claim regarding the legality of the prosecutor's appointment by pleading guilty; but the Court responded that jurisdictional defects cannot be waived. The Government also argued that the prosecutor's services were not covered by 5 U.S.C. § 3372 because the services he rendered were "gratuitous" rather than "voluntary" - a distinction that the Court found "strained." In the end, the Court vacated the conviction, noting that its decision would imperil "dozens" of other convictions, since the same prosecutor had been acting as an unauthorized prosecutor for some six years! Nevertheless, the Court observed that "result oriented decision making must be eschewed if the rule of law is to prevail." (Id., at 1280, n. 11).

[Editor's Note:  The Government filed a motion for reconsideration in this case; and in a decision reported at 972 F.Supp. 1296 (E.D.Cal. 1997), Judge Karlton reaffirmed the dismissal of the conviction.  That later decision is discussed in the Punch and Jurist issue dated Oct. 20, 1997 (Vol. 4, No. 42).

" 'The methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged.' . . . Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of the courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life." McCleskey v. Kemp, 481 U.S. 279, 343 (1987) (Brennan, J., dissenting.)