Vol. 4, No. 24 As Published in the Advance Sheets on June 16, 1997 Copyright © 1997
Highlights of this Issue:
United States v. Cisneros, 112 F.3d 1272 (5th Cir. 1997) (Judge Benavides)
Among the many issues raised on this appeal, one dealt with a rarely cited provision of the Speedy Trial Act. One of the defendant's argued that his rights under the Speedy Trial Act were violated when the court disqualified his counsel due to a conflict of interest and then failed to give him 30 days to prepare for trial with new counsel as required by that Act. [" . . . the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel . . .". 18 U.S.C. § 3161(c)(2)]. After the lower court set June 1, 1995 as the starting date for the trial, it dismissed the defendant's first counsel on May 9, 1995. The defendant retained new counsel on May 22 and when the new counsel first appeared on May 25, he immediately requested a 60-day continuance in the trial's starting date, asserting that one week was an insufficient amount of time to prepare for a 'case of this magnitude'." The lower court denied the motion; the trial commenced as scheduled; and after the defendant was convicted he appealed, arguing that he had been denied adequate time to prepare for trial. The Fifth Circuit agreed that the trial court had erred and had violated the provisions of the Speedy Trial Act. But, in a statement that confirms that many of the protections of law are merely pretend rules, the Court also concluded that the error was harmless because "we conclude that Perez has failed to show prejudice." One view of the practice of converting time-tested rules into nothing more than recitations of meaningless, flowery rhetoric can be seen in the Quote of the Week below.
Parretti v. United States, 112 F.3d 1363 (9th Cir. 1997) (Judge Norris)
The defendant in this case was arrested by Federal agents while he was giving a deposition in California; and he was held without bail pending a decision by the French government whether to request his surrender at a later date. The sole basis for the arrest warrant that was sought by the Government was the French arrest warrant, which was neither attached to the complaint nor accompanied by "any affidavits or other competent evidence." The Government invoked the rule of "judicial non-inquiry" and argued that the arrest should be upheld without an independent judicial determination of probable cause. In a lengthy and scholarly analysis of the issues, the Ninth Circuit rejected the Government's position, observing: "The government fails to give us any cogent reason why the Fourth Amendment should be interpreted to allow the arrest of an individual 'provisionally' for 40 days for treaty enforcement purposes without the customary determination of probable cause based upon competent evidence." (Id., at 1375).
Even though most of us don't often deal with extradition cases, this is a decision that should be read by all. Its significance transcends the narrow issues of whether the arrest warrant violated the defendant's Fourth Amendment rights and whether the defendant's detention without bail before his extradition hearing violated the Due process Clause of the Fifth Amendment. For example, the Court strongly affirmed the purpose and sanctity of the Warrant Clause by stating: "When a person is arrested and detained, he is deprived of his most precious liberty, freedom from restraint by the government. . . . The severity of that deprivation does not vary with the government's purpose in making the arrest. Even if it did, the command of the Warrant Clause that no warrant issue but on probable cause is immutable." (Id.).
Judge Reinhardt's concurring opinion is particularly instructive. He observed that the standards that govern bail are the same in foreign extradition and domestic criminal cases; and he criticized the lower court's ruling (which was reversed) that the defendant had failed to show any "special circumstances" that warranted his release on bail. Judge Reinhardt carefully examined the "special circumstances doctrine" which purportedly derives from the Supreme Court's decision in Wright v. Henkel, 190 U.S. 40 (1903); and he concluded that, in view of the expanding net of extraditable crimes, "it would be particularly inappropriate to adhere to a rule that requires the incarceration of persons in our jails for substantial periods of time, without any opportunity to obtain bail, simply because a foreign nation is considering whether to ask for their extradition." (Id., at 1389).
United States v. Cazares, 112 F.3d 1391 (9th Cir. 1997) (Judge Schwarzer) [See Editor's Note below]
Lee v. United States, 113 F.3d 73 (7th Cir. 1997) (Judge Evans)
United States v. Harrison, 113 F.3d 135 (8th Cir. 1997) (Judge Fagg)
The backwash from Bailey v. U.S., 133 L.Ed.2d 472 (1995) continues to flood the courts' dockets. Before Bailey most courts were willing to affirm the mandatory five-year, consecutive sentence required by 18 U.S.C. § 924(c) for "use" of a gun during a drug trafficking offense even under the most tenuous of circumstances. Bailey altered the facts required to prove an active "use" of a gun, and it led to a huge number of appeals. All three of these cases deal with different aspects of Bailey type appeals.
In Cazares, the defendant and a co-defendant were arrested after retrieving some drugs from an apartment in which a number of people resided. During an ensuing search of the apartment, law enforcement officials found some loaded weapons in one bedroom in the apartment; but the Government failed to establish whether that bedroom was occupied by the defendant. Summarily concluding that "the guns in the house were part of the conspiracy", the district court applied the two level "gun bump" enhancement contained in U.S.S.G. § 2D1.1(b)(1) for possession of a gun during the commission of a drug crime. The district court concluded that "the fact that the defendant did not personally possess the weapons is irrelevant." On appeal, the defendant argued that there was insufficient evidence to support the two-point enhancement; and the Ninth Circuit agreed. Ruling that the findings of the district court were "clearly erroneous", it observed that "it is pure speculation whether Parra Cazares, though a resident of the apartment, ever had possession or dominion of any of the firearms." (Id., at 1395).
Citing McCarthy v. U.S., 394 U.S. 459, 466 (1969), the Court agreed that it has long been settled that "a guilty plea is an admission of all the elements of a formal criminal charge." However, it said that the precise question presented by this appeal was "whether the plea to a conspiracy charge under 18 U.S.C. § 846 admits conduct alleged as an overt act." It concluded that proof of the commission of an overt act is not an element of the offense under § 846; and that "allegations not necessary to be proved for a conviction are not admitted by a plea." (Id., at 1397.) The Court did note that several other Circuits have "on occasion" treated guilty pleas as admitting factual allegations in the indictment not essential to the government's proof of the offense; but it rejected that approach, stating that "to attribute to a defendant an admission which was never subject to a plea colloquy under Fed.R.Crim.P. would undermine the rule's prophylactic purposes." (Id.). It concluded that because the Government did not prove, and the guilty plea did not establish, that the defendant possessed guns, the two level increase in his sentence was improper.
[Editors' Note: Presumably after a request for a rehearing, the Cezares decision was superseded by a nearly identical decision that was published on August 21, 1997 and which was reported at 121 F.3d 1241 (9th Cir. 1997). See Vol. 4, No. 40 of the Punch and Jurists' weekly issues.]
In Lee, the defendant pled guilty to a § 924(c) charge. Following Bailey, he filed a § 2255 Motion seeking to withdraw his plea and vacate his conviction on the gun charge. The Government protested, arguing that, by pleading guilty, Lee had waived any challenge he might have had based on a claim that the facts of his case could not support his conviction. The lower court disagreed and both allowed the defendant to withdraw his plea and dismissed the gun charges. On appeal by the Government, the Seventh Circuit agreed that the defendant should be allowed to withdraw his plea because the facts of the case "clearly shows" that Lee believed that he was guilty of the § 924(c) charge "due solely to this possession of a firearm." It wrote: "We think the government misses the point on this issue: yes, Lee admitted certain facts, and those facts at that time were thought to constitute a crime under § 924(c). But the Supreme Court has since said that simple possession of a gun does not a § 924(c) crime make." The defendant's victory was short lived, however, because the Seventh Circuit disagreed with the lower court's ruling that the gun charge should be dismissed. "[I]f a conviction is vacated, the judgment set aside, and a plea of guilty withdrawn, the indictment comes back to life, and the appropriate thing to do is go to trial . . . ."
In Harrison, the defendant also filed a § 2255 Motion challenging his § 924(c) conviction, and the Government conceded that the gun conviction should be reversed in light of Bailey. However, it also argued that the court should re-sentence the defendant on the counts that had not been appealed and apply the "gun bump" enhancement contained in U.S.S.G. § 2D1.1(b). The defendant countered that the district court had no statutory power to re-sentence him on counts that had not been appealed, because the language of § 2255 only authorizes modification of the specific term of imprisonment associated with the single count of conviction attacked. The Eighth Circuit disagreed, holding that when a defendant challenges one of at least two interdependent sentences, the district court can re-sentence on the counts not appealed because the defendant "has effectively challenged interwoven sentencing plan." Judge Heaney dissented. He argued that the majority's conclusion has "no legal basis" because the meaning of the words "the sentence" as used in 28 U.S.C. § 2255 "is logically limited to the sentence collaterally challenged by the prisoner." His more interesting, and logically unflawed argument, was that "the language of section 2255 expressly provides that relief under the statute is available only to a prisoner in the custody of the United States. The only person seeking "relief" with respect to the drug conviction . . . is the government. I agree with the observation made by Judge Eisele that, 'no matter how hard one tries, one cannot simply shoehorn the United States into the class of persons who are entitled to seek relief under [section 2255]'." (citing Warner v. U.S., 926 F.Supp. 1387, 1398 (E.D.Ark. 1996) (Harrison, id., at 139). For a more detailed analysis of the position espoused by Judge Heaney, see the excellent decision of Judge Aldrich in U.S. v. Gevaras, 961 F.Supp. 192 (N.D.Ohio 1996).
United States v. Thompson, 113 F.3d 13 (2nd Cir. 1997) (Judge Jacobs)
This case deals with two frequently litigated restitution issues. First, the Court emphatically affirmed that a failure to object to a restitutionary order is not a bar to appellate review "because improperly ordered restitution constitutes an illegal sentence amounting to plain error." (Id., at 15). While that principle has been espoused in a number of Second Circuit decisions for several years (see, e.g., U.S. v. Mortimer, 52 F.3d 429, 436 (2nd Cir. 1995) and U.S. v. Soto, 47 F.3d 546 (2nd Cir. 1995)), its validity was somewhat cast in doubt by dicta in U.S. v. Mizrachi, 48 F.3d 651, 657 (2nd Cir. 1995), where that court observed that "because the appellant failed to raise his restitution objection before the District Court, the claim will be reviewed only for plain error".
The second issue dealt with by the Court was the requirement that the lower courts must consider, before imposing a restitution order, the mandatory factors contained in 18 U.S.C. § 3664(a). That statute requires the court to consider, inter alia, "the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependants . . . . " In this case, the defendant claimed that the district court had erred by not properly considering certain of those factors (specifically his own financial condition and the effect of the restitution order on his dependents) before it imposed an order of restitution in the amount of $67,916. The Second Circuit agreed, and vacated the restitution order "because the court did not link its restitution order to any of the factors in 18 U.S.C. § 3664(a)." (Id., at 15). It observed that "even if the [presentence report] adequately considers the § 3664(a) factors, that fact alone is not enough to insulate a restitution order from being vacated by this court. . . . Rather, we require an affirmative act or statement allowing an inference that the district court in fact considered' the mandatory factors set forth in § 3664(a)." (Id.).
United States v. Haltom, 113 F.3d 43 (5th Cir. 1997) (Judge Benevides)
This case helps to make some sense out of the mysteries of the Guidelines' provisions dealing with the "grouping" of multiple counts of conviction, as contained in U.S.S.G. §§ 3D1.1 through 3D1.5 . The reason that those provisions are so complex is that they attempt to deal with at least three, sometimes conflicting, objectives. First, recognizing the firmly ensconced (and often vindictive) practice of prosecutors in charging as many separate offenses as can possibly be dreamed up out of a single course of criminal conduct, the Guidelines state that one on the purposes of the grouping rules is "to limit the significance of the formal charging decision and to prevent multiple punishment for substantially identical offense conduct." (U.S.S.G., Ch. 3, Pt. D, Introductory Comment.) A second purpose is to ensure that a defendant receives "incremental punishment for significant additional criminal conduct" (id.) - and the operative word in that provision is "significant." Finally, the Guidelines optimistically promise that its grouping rules will prevent "double counting" of offense behavior. U.S.S.G. § 3D1.2, Commentary, Application Note 5. Through that loose net of objectives, a lot of bodies can fall; and without understanding how § 3D1 works, a lot of sentences will be increased.
In this case, the defendant was convicted of one count of mail fraud and four counts of tax evasion. The district court refused to group the mail fraud counts with the tax evasion counts; and, using the formula contained in U.S.S.G. § 3D1.4, it increased the defendant's offense level from 20 to 22 to make sure that he was incrementally punished for the additional charged counts. On appeal, the Fifth Circuit ruled that the district court had "imposed too harsh a penalty by double-counting the conduct underlying Haltom's mail fraud conviction." It noted that when the conduct underlying one count is a specific offense characteristic of another count, the counts must be grouped. "Convictions on multiple counts do not result in a sentence enhancement unless they represent additional conduct that is not otherwise accounted for by the guidelines." Here the Court noted that Haltom's offense level for tax evasion had already been increased by two levels because his unreported income was derived from criminal activity, i.e., the mail fraud. Thus, "it is indisputable that the mail fraud count 'embodies conduct that is treated as a specific offense characteristic' of the tax evasion counts." (Id., at 46).
The Court agreed that "as a matter of common parlance, Haltom's mail fraud and tax evasion convictions cannot readily be said to have caused 'substantially the same harm" (id.); and that "by requiring the grouping of Haltom's tax evasion count with his mail fraud count, the guidelines spare him any incremental punishment for his tax crimes." (Id., at 47). Nonetheless, "the guidelines clearly forbid the alternative approach taken by the district court: using the mail fraud counts to enhance the offense level for tax evasion and then using the enhanced tax evasion offense level to increase the offense level for mail fraud." (Id.)
United States v. Magallon, 113 F.3d 150 (9th Cir. 1997) (Judge Thompson)
Although the Guidelines were amended in 1995 to eliminate the distinction between L- and D- types of methamphetamine (see U.S.S.G. Amendment No. 517), this case shows some of the insanity that existed in the law before those amendments became effective. Prior to 1995, the Guidelines imposed substantially lower sentences for crimes involving L-methamphetamine than crimes involving D-methamphetamine. In this case, the defendants were sentenced on the basis of D-methamphetamine, even though the Government did not "present any evidence at trial or during sentencing that the drug involved was D- rather than L-methamphetamine. The probation officer who prepared the presentence report referred to the drug simply as "methamphetamine", but assumed it was D-methamphetamine in calculating the Guideline sentencing range." (Id., at 152). None of the defendants objected at sentencing to the base level that was recommended; and the district court made no findings as to the type of methamphetamine involved. When the defendants finally woke up and objected, it was fortunate that they were in the Ninth Circuit. The Eighth and Tenth Circuits have previously held that the district court does not commit plain error in the circumstances of this case; and the court in U.S. v. Deninno, 29 F.3d 572, 580 (10th Cir. 1995) even gratuitously commented that "factual disputes [related to sentencing] do not rise to the level of plain error." Prior to this decision, the Third and Eleventh Circuits have held that it is plain error for the court to sentence the defendants for a drug crime involving D-methamphetamine when the Government fails to introduce any evidence as to the type of methamphetamine involved. (See, U.S. v. Ramsdale, 61 F.3d 825, 832 (11th Cir. 1995) and U.S. v. Bogusz, 43 F.3d 82, 90 (3rd Cir. 1994)). Now, as could be expected, the Ninth Circuit agrees that the sentencing of these defendants involved plain error.
The Government argued that the Court should not hear the appeal because "the defendants have not shown that they were prejudiced by the error." A somewhat bemused court responded that the error seemed rather "obvious." Undaunted, the Government forged on, stating that by failing to object to the more onerous sentence, the defendants had not simply forfeited the district court's error, they had waived it. (The theory of that argument was the Supreme Court's holding in U.S. v. Olano, 507 U.S. 725, 733 (1993) that "mere forfeiture, as opposed to waiver, does not extinguish an 'error'.") The Ninth Circuit concluded that the defendants had not intentionally relinquished or abandoned their rights not to be sentenced for D-methamphetamine; that the error had affected their substantial rights; and that it had a "profound impact on the range of possible sentences imposed." Thus, it vacated the sentences and remanded the case back to the district court with instructions that the Government must establish by a preponderance of evidence the type of methamphetamine involved. The only remaining question is why do the prosecutors persist in defending sentences that are so obviously unjust?
Franklin v. District of Columbia, 960 F.Supp. 394 (D.D.C. 1997) (Judge Green)
This important decision presents a revealing (and depressing) portrait of the plight of the growing number of Hispanic prisoners housed in our country's prisons and jails. While the case focuses on the living conditions at the eight prisons operated by the District of Columbia (which house some 9,000 prisoners), it probably represents a fair picture of the plight of Hispanic prisoners generally. Essentially, the prisoners - "eighty (80) percent [of whom] do not speak English sufficient to function effectively on a daily basis" (Id., at 401) - complained about a series of violations of their First, Fifth and Eighth Amendment rights under the Constitution. Just before trial, the D.C. Department of Corrections engaged in a "flurry of activity" to remedy or help gloss over some of the more serious problems - but their last ditch efforts were not sufficient to persuade Judge Green that they were either adequate or meaningful. In the end, she found serious and chronic deprivations of rights in the areas of the quality and scope of medical treatment afforded to the Hispanics; and in the systemic denial of due process rights to Hispanics during disciplinary and parole hearings. She also rejected a broad range of claims about limited access to educational and vocational programs because the law is clear that prisoners "have no constitutional right to vocational, rehabilitative or educational programs" - a principle that makes a mockery both of the American practice of naming most prisons "correctional facilities" - and
of the stated goals of most prisons that they are dedicated to providing "work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens." (See, BOP Mission Statement, as contained in its 1992 Facilities Handbook). Despite the malarkey fed to and believed by most Americans, the absence of any educational and rehabilitative programs simply converts most prisons in America into giant warehouses that have aprly been called "Schools of Crime." (See, United States v. Vargas, 885 F.Supp. 504, 505 (S.D.N.Y. 1995)).
United States v. Santos, 961 F.Supp. 71 (S.D.N.Y. 1997) (Judge Scheindlin)
Towards the end of her decision in which she threw out the results of an FBI inventory search, Judge Scheindlin quoted from a recent article in the Journal of Criminal Justice in which the author astutely observed that: "The inventory search has evolved into the police officer's 'golden parachute' - when not armed with exigencies or probable cause, only bare suspicions, a skilled police officer can turn a routine traffic stop into a full-scale investigatory search." (Id., at 75, n. 6). Here, after the defendant was lawfully arrested on pending Federal charges, the FBI engaged in a detailed examination of the contents of three duffel bags of personal property that were in his possession at the time he was transferred from a state prison to Federal custody. With her usual painstaking style, Judge Scheindlin examined all the routine justifications presented by the Government to support its ensuing inventory search of the three duffel bags. She concluded that the inventory search "provided a pretext for a full and detailed search of all the defendant's belongings for the explicit purpose of uncovering evidence and thus violated defendant's rights under the Fourth Amendment." It takes a special judge to stand up to the power and might of the FBI; and once again Judge Scheindlin has proven that she will not be steam-rolled into submission.
- Our pretended solicitude for the rights of criminal defendants.
Judge Kozinski once observed that the rules that control criminal trials are often "completely spurious, the product of blind, unthinking acceptance of apocryphal evidentiary doctrines and rules of thumb." U.S. v. Wales, 977 F.2d 1323, 1328 n. 2 (9th Cir. 1992), quoting from Frederick C. Moss, Beyond the Fringe: Apocryphal Rules of Evidence in Texas, 43 Baylor Law Review 701 (1991). Such rules pretend solicitude for the accused's rights. In fact they deny those rights because they make no sense except in the context of facilitating criminal prosecutions. The truth is that the battle field for trials is not level; it is heavily tilted in favor of the prosecutors. The reality is that criminal trials have become 'a sacrifice of unarmed prisoners to gladiators'." Judge Wyzanski in United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975).
Richard Ware Levitt's Criminal Law Update is now available on the Internet
Punch and Jurists is proud to announce that the latest segment of New York Attorney Richard Ware Levitt's Criminal Law Updates is now available through its Homepage on the Internet. Since 1988, Mr. Levitt has prepared his annual summary of key Second Circuit decisions dealing with criminal law. Combined, the Update now covers some 640 pages. Through the courtesy of Mr. Levitt, his January 1, 1997 Supplement is now posted on the Internet and can be viewed by all subscribers to Punch and Jurists' Internet Package. Over the next few months, the remaining parts of that important treatise will be added; so that by the fall the entire Criminal Law Updates will be available to the criminal defense bar. We believe that this treatise is one of the most significant additions to the growing list of quality legal resources available on the Internet. In its electronic form, the current 1997 Supplement is hypertext linked to the full, official text of the Second Circuit decisions - which makes legal research on the Internet faster and easier than ever before.
If you are not yet an Internet Subscriber to Punch and Jurists' Legal Research Center on the Internet at http://www.fedcrimlaw.com/, having access to Mr. Levitt's Criminal Law Updates is a great reason to sign on. Not only will you get unlimited access to the Criminal Law Updates, you will also have unlimited access to all the other features of Punch and Jurists Web Site - including access to its listing of Key Websites (which is revised and kept up to date on a daily basis); Punch and Jurists' much heralded Survey of the Federal Sentencing Guidelines and its special listing of Web Sites that have detailed information about the Guidelines; the weekly issues of the Punch and Jurists Newsletter, in electronic form, hypertext linked to the full text of the official decisions; and much more - all for the low annual fee of $159 - or approximately $3.00 per week - for the ability to stay current with the latest and the best that the Internet has to offer in the field of Federal criminal law.