Highlights of
this Issue:
When Congress hastily passed the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, and failed to provide any effective dates for most of its provisions, that immediately set off a donny brook in the courts which continues to escalate. Most of the courts continue to rely on their own differing interpretations of Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme Court's most recent pronouncement on the correct methods for determining when and whether a statute should be given retroactive effect. As the dissents in these two cases show, the debate over the law and the lore generated by the AEDPA has become quite caustic and is rising to a level rarely seen in the polite circles of the Federal courts.
In Jeffries, despite the Ninth Circuit's authoritative assertion that Congress had clearly expressed itself on the issue of retroactivity, Judge Kozinski retorted that Congress has "said nothing at all about it." He called the majority's decision "procrustean" and he wrote: "If you listen closely, perhaps you too can hear what the majority hears: the sounds of silence. . . . This oxymoronic conclusion is wrong for two reasons. First, it's based on a misreading of Landgraf. Second, it's just not true; there's noevidence Congress intended anything." (Id., at 1501). In Vial, Judge Hall observed that "there is no consensus in sight among the federal courts" on the many questions that arise concerning the retroactivity; and he concluded that the majority's decision that refused to allow a prisoner to file a second or successive motion under 18 U.S.C. § 2255 to appeal his conviction based on the Supreme Court's ruling in Bailey v. U.S., 133 L.Ed.2d 472 (1995) "offends the ‘familiar considerations of notice, reasonable reliance, and settled expectations' that militate against retroactive application of a statute." (Id., at 1200).
The defendant in this case was denied his right to appeal his criminal conviction "because he could not afford to obtain, and the State of Maryland refused to provide, a trial transcript which was necessary to perfect his appeal." (Id., at 1144). The reason that Maryland refused to provide the transcript was a local rule that requires an indigent defendant to apply for legal representation with the Public Defender's Office as a prerequisite to obtaining a free transcript in connection with an appeal. The trouble was that the defendant didn't want to be represented by the Public Defender's Office since he had already retained the services of a private attorney who was willing to handle the appeal pro bono. In the words of the dissenting judges, "Miller was presented with a Hobson's choice whereby, in order to exercise his constitutional right to a transcript necessary for his appeal, he must forfeit his right to the attorney of his choice for no compelling reason." (Id., at 1150).
The defendant argued that the rule was both moronic and violated his Sixth Amendment right to counsel and his Fourteenth Amendment rights to Equal Protection and Due Process. The State trial court, the Court of Appeals of Maryland and the District Court in Maryland disagreed and rejected his appeal. Finally, a panel of the Fifth Circuit agreed that "the interpretation and application of [the Maryland rule] violated Miller's constitutional rights. . . . We cannot allow administrative rules so easily to defeat constitutional guarantees . . . . " Miller v. Smith, 99 F.3d 120, 130 (4th Cir. 1996). Shortly thereafter, a majority of the active Circuit judges voted to hear the issue en banc - and the en banccourt reversed, holding that the earlier decisions to reject the appeal were correct. After all a rule is a rule - and it must be followed - scrupulously. Besides, the rule that requires the use of public defenders acts "as a ‘gatekeeper' to protect against the waste or abuse of state resources set aside for indigent defenders." (Id., at 1144).
Judge Murnaghan, responding for the dissenting judges, acidly commented that "there are many valid reasons for promoting, not punishing, por bono representation on appeal. . . . Clearly, allowing pro bono representation can only benefit Maryland's overburdened and under-funded legal services system by supplementing its resources at no extra cost." (Id., at 1149). He also rejected the State's proposi tion that an indigent defendant has no right to counsel of his own choosing. "In fact, every circuit court and the U.S. Supreme Court has recognized that a criminal defendant has a qualified right to counsel of his choice." (Id., at 1149, n. 5). What aggravated Judge Murnaghan the most was the "intolerable" choice of forcing a criminal defendant to surrender one constitutional right in order to assert another. He quoted from U.S. ex rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3rd Cir. 1977) for the proposition that "a defendant in a criminal proceeding is entitled to certain rights and protections which derive from a variety of sources. He is entitled to all of them; he cannot be forced to barter one for another. When the exercise of one right is made contingent upon the forbearance of another, both rights are corrupted."
According to the latest Government statistics, during 1995 law enforcement agencies made more than 15 million arrests for criminal infractions, excluding traffic violations. (See, the FBI's Uniform Crime Reporting Press Release, dated 10/13/96). That rather frightening statistic means that over a ten year period, nearly half of the adult population in America will have criminal records. Because arrests also trigger a whole series of Constitutional rights for the suspects, another by-product of such massive arrests is that they create increasingly far-fetched interpretations about what constitutes "custody". For example, once a person is deemed to be "in custody", the police are required to read him his Miranda rights (see, Miranda v. Arizona, 384 U.S. 436 (1966)); and that is not conducive to quick confessions. So the law has stretched the concept of "custody" and developed some amazingly unrealistic standards by which it determines whether the suspects were ever placed "in custody." The Howard case is once such example. In that case, some DEA agents picked up the defendant at an airport, transported him to his probation officer, and interrogated him about alleged drug activities. That, the Court ruled, was not "custody" and did not necessitate any Miranda warnings because the defendant's freedom of action was not curtailed to a "degree associated with formal arrest." In evaluating the totality of the circumstances surrounding the "interview" that took place, the Court noted that the DEA agents had not brandished any weapons, and it accepted without question a DEA agent's testimony that if the defendant had refused to accompany the DEA agents, they would have "left without him." Now really!
In the Guimond case, the Sixth Circuit examined a different aspect of the custody question. There, the Court faced a ruling by the district court that the police had no reason - "other than curiosity" - to make the initial stop of the defendant; that, due to the lack of probable cause for the arrest that took place, the defendant's subsequent detention was illegal; and that, as the result of the illegal detention, the defendant's alleged consent to the search of his car was per se invalid. On appeal, the Court ruled that the determination that the defendant had been illegally detained was "clearly erroneous"; and that the district court had likewise erred when it held that the alleged consent to search the car was likewise invalid because it was obtained while the defendant was being illegally detained. Citing the Supreme Court's most recent pronouncement on Fourth Amendment jurisprudence, Ohio v. Robinette, 136 L.Ed.2d 347 (1996), it ruled that the district court's ruling was overly broad because "bright line rules" are inconsistent with the Fourth Amendment. Thus, it remanded the case back to the district court for a determination of whether the alleged consent was voluntarily given "based upon all the circum stances" of the arrest.
Both of these cases deal with an issue that most people want to ignore - the use of excessive force against prisoners. It is ignored in part because of the prevailing belief that all prisoners get what they deserve and in part because most citizens believe that excessive force by law enforcement officials is something that is confined to the prison setting. Unfortunately it is not. As law enforcement officers are armed with ever more powerful weapons, as they respond in the anonymity of larger and larger groups, and as they operate under increasingly vague and indiscriminate guidelines (such as the cockamamie drug-profile standards - see Judge Pratt's dissent in United States v. Hooper, 935 F.2d 484, 499-500 (2nd Cir. 1991)), more and more innocent citizens are being wronged by the excessive force of law enforcement agents. In fact, claims by innocent citizens arising out of the use of excessive force during arrests and chases and executions of search warrants have probably become one of the most prevalent issues that is litigated these days.
Because the law dealing with claims of excessive force should apply equally to prisoner claims and to citizen claims, the cases that define the contours of excessive force in prisons are important. These two cases are good summaries of the current law on excessive force and qualified immunity. In the Riley case, an en banc Court considered a claim of brutality against a pre-trial detainee - someone, we would think, who is entitled to the same protections as ordinary citizens since he had not yet been convicted of anything. The prisoner brought an action for damages based on the nasty allegation that during an interrogation, a police officer "stuck a pen up [his] nose, threatened to rip it open, and then slapped him." (Id., at 1169). The majority concluded that the prisoner's claims were not governed by the Fourth, Fifth, Eighth or Fourteenth Amendments; but rather by the Due Process Clause of the Fourteenth Amendment, and thus by the standards set forth by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). Under those far more limited standards, the majority dismissed the claims because the prisoner's injuries were only ‘de minimus". But it was the rationale for this conclusion that was intriguing. The majority wrote that "[t]o hold otherwise would make the most minor and fanciful custodial incidents the routine subjects of federal lawsuits" and it accepted the assertion of Virginia Department of Corrections that it was already "inundated by an ongoing ‘tide of meritless prisoner claims'." (Id., at 1168). In our opinion, such statements amount to nothing more than naked "social engineering by judicial fiat." (See, Scott v. Moore, 85 F.3d 230, 236 (5th Cir. 1996) (Smith, J., dissenting)). Through a persuasive decision written by Judge Michael, five judges strongly disagreed with the majority's holding. They concluded that "when a jailor or custodian switches his role to investigator and begins interrogating a detainee, no physical force is constitutionally permissible. (Id. at 1172).
If nothing else, the Davis case proves that to succeed in a damage suit against prison officials, the force used has to be pretty severe. This case involved the removal of a prisoner from a cell. To accomplish that procedure, he was first ordered to lie face down on the floor. "As he lay unmoving on the cell floor", the court found that one of the guards lunged at the defendant, "repeatedly struck [his] head and face, and smashed [his] chin against the cell's concrete floor." (Id., at 1392). Other guards standing by did nothing to stop what the court described as a "malicious" and "sadistical" use of force for the purpose of causing harm. Based on that series of events, a jury ultimately awarded the prisoner $10,000 in compensatory damages against seven defendants, jointly and severally, and $5,000 in punitive damages each against two of the defendants. In one of the rare instances in which the defendants were not allowed to assert the defense of qualified immunity, the Eighth Circuit affirmed all of the damages awards
Both of these cases address constitutional challenges to the Child Recovery Support Act (18 U.S.C. § 228) (CRSA), often referred to as the "Deadbeat Dad Statute." The CRSA criminalizes the willful failure to pay past due support obligations for a child who resides in another State. A number of lower courts have held that the CSRA represents am unconstitutional exercise of Congress's legislative powers, as did the district court in the Bailey case, in a decision reported at 902 F.Supp. 727 (W.D.Tex. 1995). Both the Fifth and the Eighth Circuits had little difficulty in rejecting a broad range of such challenges, including (in the Crawford case) a creative challenge based on improper venue. Citing a district court decision, Murphy v. U.S., 934 F.Supp. 736 (W.D.Va. 1996), the defendant argued that venue was not proper in a district with which the defendant had no connection other than the fact that the child, with respect to whom the defendant owes child support payments, resides there. The Murphy court reasoned that "the operative verb phrase in the statute is ‘willfully fails to pay'," (id., at 739) and therefore it reasoned that the proper place for venue is where the defendant is required to make his or her payments, not the victims location. In Crawford, the Eighth Circuit rejected both "the reasoning and conclusion in Murphy" and concluded that the district court's refusal to dismiss the indictment on the ground of improper venue was not erroneous.
In our view, the most significant aspect of these two decisions was the strong dissent of Judge Smith in the Bailey case. He concluded that the CSRA "flouts the limitations on the Commerce Clause, flies in the face of Lopez [U.S. v. Lopez, 514 U.S. 549 (1995)], and threatens to ‘obliterate the distinction between what is national and what is local and create a completely centralized government'." (Id., at 1233) Judge Smith's warning calls to mind a similar warning made by Judge Bechtle who once wrote: "Those who make our laws sometimes succumb in desperation and even frustration to the socially appealing temptation to extract swift and remedial justice through what may be the only available means, the federal criminal laws. In our triparte system of government, however, the judiciary must ensure that Congress acts, no matter how compelling the need or how convenient the means, only in accordance with both the terms and the meaning of the Constitution." (U.S. v. Parker, 911 F.Supp. 830, 843 (E.D. Pa. 1995)).
[Editor's Note: For a subsequent case in which the Seventh Circuit upheld the constitutionality of the CSRA, see U.S. v. Black, 125 F.3d 454 (7th Cir. 1997)].
Last week we noted with some trepidation that the Government is rapidly moving to expand the contours "other crimes" evidence through the introduction of "modus operandi" evidence that it says helps to demonstrate a defendant's "distinctive method of operation." In this case, the Seventh Circuit acknowledged that: "Although Rule 404(b) [of the Fed.R.Crim.P.] does not specifically enumerate ‘modus operandi' proof as an exception for admission of other crime evidence, this court has approved the introduction of modus operandi evidence under the ‘identity' exception to Rule 404(b)." (Id., at 1353, n. 3). Of course, the Court also warns that use of other crimes evidence may not be used to demonstrate an individual's propensity to commit a crime; but it fails to explain how the jury is expected to differentiate between modus operandi evidence and propensity evidence - which is significant in view of the Court's inability to articulate a clear distinction between "propensity" evidence and "identity" evidence. For example, the Court noted with approval the district court's finding that certain similarities between the instant crime and some prior robberies "were sufficient to identify Defendant as the likely perpetrator." (Id., at 1354). The Court also rejected the claim that the modus operandi evidence was unfairly prejudicial; and it cited three specific instances of limiting instructions made to the jury by the trial judge on that issue. The murky distinctions between "propensity" evidence and "modus operandi"evidence, coupled with the increasing use of modus operandi" evidence signal new dangers to the integrity of Rule 404(b).
Speedy justice? Not for Robert Rodriquez. He was convicted in 1983 of various crimes, and he promptly filed a notice of appeal. "On September 23, 1991, seven years and eight months after he filed his notice of appeal, the [New York State] Appellate Division affirmed Rodriquez's conviction." (Id., at 64). He then filed a civil rights action for damages against various prosecutors, judges and attorneys claiming that the unconscionable delay in resolving his appeal violated his constitutional rights. Nearly fourteen years after his conviction, the Second Circuit agreed that, yes indeed, "a criminal defendant whose due process rights are violate by an excessive delay in the resolution of his direct appeal may bring an action pursuant to 42 U.S.C. § 1983." (Id., at 65). That statement, however, proved to be nothing more than a hollow gesture, because the Court also ruled that, for a variety of reasons, including expiration of the statute of limitations and the immunity of all the defendants, the case had to be dismissed. Court appointed attorneys performing the traditional function as counsel to defendant do not act "under color of state law" and therefore are not subject to suit under 42 U.S.C. § 1983. Prosecutors likewise are immune under the Eleventh Amendment; and judges and their clerks are absolutely immune from suit. So, after nearly fourteen years of litigation, Robert Rodriquez found out the hard way that while unconscionable appellate delays may be nasty and while they may be actionable in theory, they sure aren't actionable in practice. For a view on the evils of such lengthy appellate delays, see the Quote of the Week below.
Perhaps sparked by growing criticism that the formalities of sentencing hearings are a charade to mask the reality of "assembly line justice" (see, U.S. v. Barnes, 948 F.2d 325, 331 (7th Cir. 1991)), there has been a flurry of recent decisions reaffirming, at least academically, the sanctity of those formalities. Last week, for example, we noted a mildly surprising decision from the Second Circuit, United States v. Li, 115 F.3d 125, 133 (2nd Cir. 1997), in which the Court vacated a sentence because the district court had failed to comply with the spirit of Rule 32(c)(3)(C) by not giving the defendant an adequate opportunity to speak out at her sentencing allocution. The Court concluded that a "judge's compliance with Rule 32(c)(3)(C) must not be ‘merely in form' nor may it ‘reduce the hearing on sentence to a meaningless formality'." The Reyes case is another affirmation of the importance of adhering to the formalities of sentencing; although its impact is largely academic in nature. In this case, the defen dant's chief complaint was not that the sentence itself was in error, but rather that the sentencing court had failed to comply with all the requirements of 18 U.S.C. § 3553(a) governing the manner in which a sentence ought to be announced.
After a detailed review of the purposes of § 3553(a), the Second Circuit agreed that the district court had failed to comply with the required formalities and it vacated the sentence. The Court acknowl edged that its "strict interpretation of statutory language is open to criticism as elevating form over substance" (id., at 71); but it concluded that its decision "promotes not only the underlying purposes of the statute but also some of the values inherent in our criminal justice system." The Court observed that § 3553(c)(1) requires the sentencing court to state in open court its reasons for imposing a particular sentence; and, if the spread of the applicable Guideline range exceeds 24 months, "the court must also articulate why it selected a sentence at a specific point within the applicable range. . . . When the sentencing court fails to offer an adequate explanation for selecting a particular point within the sentencing range, the sentence will be vacated and the matter remanded for resentencing." (Id., at 70). In its interpretation of that provision, the Court concluded that "[i]t is not enough for a sentencing court simply to say that it has considered ‘everything' . . . or to explain why it is not sentencing a defendant at the bottom of the range without also explaining why it is sentencing at the top of that range." (Id.) To emphasize its point, the Court also rejected the Government's argument that the Court should consider the sentencing court's oral and written rationales together in determining whether the correct sentencing procedures were followed. It concluded that "the sentencing court's statement of reasons must be limited to the oral argument made to the defendant at the sentencing hearing." (Id., at 71).
There is perhaps no area of the law that is more confusing today than the all important issue of whether a court can amend a sentence once it has been imposed. Until a few years ago, it was safe to say that once a sentence was imposed that sentence could not be changed except under the limited circum stances described in Rule 35(c) of the Fed.R.Crim.P. That Rule permits a court to modify a sentence only to "correct a sentence that was imposed as a result of an arithmetical, technical, or other clear error" and even then only within seven days of the imposition of the sentence. The Advisory Commit tee Notes to Rule 35(c) made it clear that the rule was "not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines of for the court simply to change its mind about the appropriateness of the sentence." Of late, however, we have seen more and more attempts to dismiss any expectation of finality in sentencing; and these cases discuss some of those efforts.
A major incursion on the concept of finality of sentencing resulted from the Supreme Court's decision in Bailey v. U.S., 133 L.Ed.2d 472 (1995). Because that decision permitted many defendants to escape the harsh mandatory minimum sentences associated with the use of guns, the courts quickly determined that they had the power to modify those portions of the sentence that related to counts that were never appealed - on the grounds that the entire sentence was part of a sentencing package; and if one component was changed on appeal, the courts could reopen every other element of the original sentence. The culmination of the courts' discontent with rigid limitations on their ability to change sentences once they have been imposed came in U.S. v. Lilly, 80 F.3d 24 (1st Cir. 1996). In that case, two months after the original sentence was imposed (and almost immediately after the defendant filed a notice of appeal), the district court, sua sponte, issued a new judgment and commitment order which imposed a term of probation that was never included in the first order. The First Circuit rejected the defendant's argument that the revised order was invalid, calling the missing probation order "an apparent oversight." But to emphasize its right to engage in "social engineering", the First Circuit also commented that the defendant "thinks, quite mistakenly, that courts are automatically forbidden from increasing sentences after they have been imposed" (id., at 27) (emphasis added); and then added that "there is no automatic bar to an increase [in a sentence] in all circumstances." (Id., at 28).
The Layman case presents the other side of the coin. While it may be fine to argue that courts have the power to increase sentences, when it comes to decreasing sentences it is a different story. In that case the district court orally sentenced the defendant to nine months imprisonment. The defendant immediately filed a motion requesting the court to modify the sentence and place the defendant on home confinement. Within two days the district court convened a hearing, making it clear that it considered the proceeding to be a continuation of the original sentencing hearing and that its oral pronouncement of sentence at the earlier hearing did not constitute the "imposition of a sentence" within the meaning of Rule 35(c). It then sentenced the defendant to nine months home confinement. On appeal, the Fourth Circuit reversed. Showing fervent (if erratic) fealty to the mandates of Rule 35(c), it followed rulings from the Second and Tenth Circuits which have held that a sentence is imposed for purposes of Rule 35(c) when it is orally pronounced. Thus, concluding that the new sentence resulted from "a change of heart" by the sentencing judge, it vacated the new sentence as violative of Rule 35(c).
Alerted by a suspicious American Airlines agent, DEA officials stopped a "very nervous" passenger getting off a plane in California, and seized $49,576 he was carrying in a locked bag. The passenger was never charged with any crime, but the Government moved to forfeit the money under 21 U.S.C. § 881(a)(6). Although no drugs were found, a drug-sniffing dog "alerted" to the money - which may have been due to the fact that some 96% of the currency in circulation contains some traces of illegal drugs (See, United States v. $80,760 in U.S. Currency, 781 F.Supp. 462, 475 n. 32 (N.D.Tex. 1991)). In addition, the passenger allegedly fell within the overworked drug courier profile; and, most signifi cantly, the passenger had once been "detained" in connection with a drug-related crime. (He was released on that occasion and never charged with any crimes.) Based on nothing more than those facts, the district court concluded that the Government had probable cause to believe that the money was involved in a drug transaction; and thus the burden shifted to the passenger to prove otherwise. When he failed to meet that burden, the Government district court ordered the money forfeited. On appeal, the Ninth Circuit reversed, holding that the Government had failed to produce sufficient evidence to support a finding of probable cause; and that "allowing the government to forfeit property based on a mere showing of probable cause is a ‘constitutional anomaly'." (Id., at 429).
What is most notable about this decision was one of the Government's arguments in support of forfeiture. It argued that any heightened burdens of proof that are placed on the Government to prove criminal activity "are inapposite in the forfeiture context because what was at stake was merely property, not liberty." (Sic! and Sick!) Hell, under that theory why not start going after fancy cars and boats and vacation homes that the Government craves? After all, those things also are "just" property!
In this case, Judge Gertner (who never disappoints) rejected a Government motion, pursuant to Fed.R.Crim.P. 16(a)(1)(E), to utilize an expert witness at trial. After noting that the prosecution was more than two years old and that the Government had waited until seventeen days before trial to make its motion, Judge Gertner ruled that the motion was not timely, that the proposed evidence would be far more prejudicial than probative, and that is was "simply not necessary."
They never let go. In 1970, this John Doe, then a minor, was arrested and charged with failing to pay a special tax on imported marijuana in violation of 26 U.S.C. § 4755(a)(1), a statute that has long since been repealed. He pled guilty and he was sentenced, as a youthful offender, to three years probation. Prior to the expiration of the three year term of probation, the court issued an order terminating that probation; and in 1973 a ‘certificate of vacation" of the conviction was filed and Doe's file was ordered sealed. Since that time, Doe has neither been arrested nor convicted of any crime. He worked for some 20 years in the auto sales industry; but when he discovered that his oldest child suffered from Attention Deficit Disorder, he sough a new job with a lender specializing in automobile finance, to give him more time to spend with his family. Federal law, however, prohibits any person ever convicted of a crime involving dishonesty from working for a federally insured financial institution. Thus he appealed to the court to expunge the record of his past criminal conviction so he could take and keep the new job.
The Government, of course, opposed the motion. It argued that the court lacked any subject matter jurisdiction because there is no statutory waiver of sovereign immunity that permits this expunction against the United States. The Court ruled that, in the interests of equity, it had appropriate jurisdiction. "A majority of the circuits agree that federal courts have an ‘inherent equitable power' to order the expunction of criminal records under certain circumstances." (Id., at 1432). The Government next maintained that it had an interest in maintaining Doe's criminal records; but the court again disagreed, holding that, for all practical purposes, the criminal records were obsolete. Finally, the Government argued that expunction should only be used in extreme cases; to which the court retorted "these circumstances are extreme."