This is one of those bizarre cases that raises some troubling questions about the political realities of the courts' oft-invoked and much-vaunted supervisory powers.  Here, two of the three judges acknowledged that the case against the defendant was ‘shaky" and was based on "unreliable testimony".  Both also admitted that the defendant was an "unfortunate scapegoat".  And one judge stated that there  were serious questions about whether the defendant was even covered by the statute he was charged with violating.  Yet the defendant's convictions were confirmed because the Court concluded that, given the scope of review of a district court's factual findings, it was "powerless" to do anything  "to rectify this gross injustice."  (Id., at 1472).

The defendant in this case had been a Special Deputy U.S. Marshal for seven years prior to the events that gave rise to his arrest and conviction.  To show off his nascent machismo, the defendant took to driving around in a truck with a placard declaring that he was a "United States Marshal" and with a small arsenal of potent weapons in plain view.  One day he made the mistake of parking his armed truck in front of the Mayflower Hotel in Washington, D.C., which was then hosting an Israeli diplomatic delegation.  That attracted a lot of attention from various government security officials who normally attend such events.  The defendant was detained for a brief time; and then released.

After it became aware of the situation, The Washington Post wrote a series of articles claiming that the defendant had received special treatment "because of his family money and political connections."  Officials of the Marshal's Service openly admitted that they were fearful that the "situation would prove to be somewhat sticky for the United States Marshal's Service."  Dutifully bowing to that pressure, the defendant was ultimately indicted on an assortment of trumped-up charges - almost two years after he was first detained.  Ultimately, he was convicted of impersonating a Federal official and making false statements - charges that Judge Henderson derided on the grounds that "a special deputy United States marshal is not [even] an ‘officer or employee of the United States' the impersonation of which is proscribed by 18 U.S.C. § 912."  (Id., at 1472).

The defendant appealed his conviction, arguing that the Government had failed to prove that he had ever represented that he was a special deputy marshal - an element essential to his conviction; and that his convictions were therefore invalid.  Effectively the D.C. Circuit said "Sorry.  We don't have the power to vacate convictions based on questionable evidence and improper charges."  Rather, it solemnly concluded: "Our task is to view the evidence in the light most favorable to the government, allowing the government the benefit of all reasonable inferences that may be drawn from the evidence, and permitting the [jury] to determine the weight and credibility of the evidence."  On that basis, it affirmed the conviction.

Although he concurred in the outcome, Judge Silberman was disturbed.  He openly questioned "how the district court could have concluded that the government made out its case beyond a reasonable doubt."  In a remarkable testimonial to the impotence of the courts "to rectify a gross injustice", he wrote: "This is a painful case.  I am left with the strong impression that [the defendant] should not have even been prosecuted, let alone convicted.  He is a victim of hostile Washington Press reporting and on its influence on a number of federal officials more concerned with protecting their own posteriors than ensuring the fair administration of criminal law.  Unfortunately I cannot perceive any ground that permits me, legitimately, as an appellate judge, to vote to reverse the conviction."  (Id., at 1469) (Emphasis added)  (Sic! and sick).

Such rulings raise troubling questions about the arbitrary use of the court's supervisory powers.  Any lawyer has seen hundreds of cases in which the courts have freely invoked their supervisory powers to remedy those "gross injustices" that bother them.  Yet, it often seems that when outside pressures are brought to bear (as happened in this case), the courts will inevitably and conveniently hide behind the facade that they are powerless to act.  Perhaps one reason why appellate courts are able to pick and chose when they will step in to correct gross injustices is that there are so many different and conveniently flexible standards that define the scope of their review - a concept that is addressed in the Quote of the Week below.

At first glance it is surprising that this case generated sufficient interest to warrant an en banc hearing.  After all it "only" involved an appeal by a prisoner from a district court's dismissal of his civil rights action;  and even the eight dissenting judges described the case as "certainly a ‘nothing' case."  (Id., at 1519).

When one reads on, it becomes apparent that the decision takes on far greater significance.  The district court had dismissed the prisoner's claims without prejudice - which meant that he could re-file his pleadings to overcome whatever technical obstacles the district court had found.  So, when the prisoner filed his appeal, he probably never dreamed that the results could lead to a total calamity; but that's precisely what happened.  The Fifth Circuit decided that it had the authority to change the lower court's decision and dismiss the prisoner's claims - this time with prejudice - even though no cross-appeal was ever filed!

The majority's decision was brief (it covered a mere page and a half); but its direction was clear from the opening sentence in which the Court announced that it had taken the case "to dispose appropriately of a continually burgeoning prisoner pro se docket."  (Id., at 1504). [It is probably appropriate to note that one of the definitions of the word "dispose" is "to do away with; to destroy."]

The eight dissenting judges were appalled and they took some 14 pages to register their stinging dissent.  Citing a long-accepted rule of practice, those judges argued that: "It is well-settled that where the plaintiff alone appeals a dismissal without prejudice, the appellate court may not change the judgment to one of dismissal with prejudice, as this enlarges the rights of the defendant-appellee under the judgement, for which a cross appeal is required."  Thus, they concluded, the majority's decision "appears to be more an exercise of will than of judgment." (Id. at 1596).

Then again, it was the Fifth Circuit; and, after all, the case was a mere "nothing" case (i.e., it involved an expendable prisoner).

This extraordinarily lurid, highly-publicized case is a testimonial to the perseverance of two defense lawyers; and it contains an unusually detailed analysis of the law dealing with prejudicial conflicts of interest between lawyers and their clients - at least in the context of the ugly facts of this case.

The petitioner, John Freund, a one-time prominent and respected physician, was caught up in a brutal murder that took place during a drunken, drug-laden orgy with a group of thoroughly despicable people.  While the circumstances of the murder are chilling, a reading of the case suggests that Freund's co- defendant was the instigator and perhaps the sole perpetrator of the vicious crime that took place.  That co-defendant was a wealthy and influential interior designer in Palm Beach, Fl. who was "involved heavily in drugs (both use and sale), violence, and prostitution."  (Id., at 1548).  While there was lots of evidence against him, there was virtually no reliable evidence against Freund.  In the Court's view, "the only witness claiming to have seen Freund stab [the victim] was a pregnant teenager, topless dancer, and long time drug user who . . . admitted to having snorted cocaine for at least seven hours, perhaps much longer" before the events that she allegedly saw.  (Id., at 1580).

The essential problem for Freund was that he was represented by the very firm that had represented his co-defendant for years.  That firm had a long-standing, professional and social relationship with the co- defendant which, it was alleged, extended to engaging in criminal conduct with the co-defendant, including drug use and prostitution.  As the Eleventh Circuit explained: "If the law firm chose to present a defense of [Freund] that was antagonistic to their former client, they had good reason to fear that he would continue to make these allegations.  At best, these allegations, even if untrue, might damage the law firm's reputation.  At worst, they could lead to disbarment and criminal charges.  Thus, attacking its former client posed serious risk to the law firm's own interests."

The co-defendant was tried separately and he received a relatively light sentence.  By the time this appeal was heard, the co-defendant had already been released from prison.  Freund, on the other hand, was induced into raising the defense of insanity.  As the Court noted, "implicit in [that defense] was an admission that, despite the paucity of the evidence against him, Freund had killed [the victim]."  (Id., at 1556).  The insanity defense also  precluded Freund from arguing that his co-defendant had committed the murder.  In the end, Freund was convicted and he received a life sentence with no possibility of parole for 25 years.

New defense counsel never gave up.  Through four earlier appeals, it stuck to its argument that Freund had been deprived of effective assistance of counsel because of significant and prejudicial conflicts of interest. Four times in a row, different state and federal courts denied that claim and affirmed the conviction.  Finally the case was presented to the Eleventh Circuit.  That Court needed no crystal ball to conclude that Freund had been plainly and severely prejudiced by the career-threatening conflicts of interest which counsel chose to ignore.  In short, the Court concluded that by protecting its own interests, the law firm effectively threw its new client to the wolves.  Thus, it threw out the conviction without even calling for an evidentiary hearing.

Beyond the lurid facts, the decision contains a detailed analysis of the rules that govern attorney-client conflicts of interest.  It starts with the premise that defendants have a right to the effective assistance of counsel.  Citing Cuyler v. Sullivan, 446 U.S. 335, 448 (1980), the Court continued that "to prevail on an ineffective assistance of counsel claim based on a conflict of interest, a habeas petitioner must demonstrate that an ‘actual conflict of interest adversely affected his lawyer's performance'."  In the context of those rules, the Court next noted that an attorney owes his clients at least three important duties - a duty to represent the client zealously; a duty of confidentiality; and a duty to exercise independent judgment.  An examination of those duties disclosed some important holdings.  For example, the Court explained that while an attorney should never assert a false or frivolous defense on behalf of a client, " a defense attorney may always put the prosecutor to his burden of proving every element of the charged offense, even if the attorney knows that his client has committed the offense."  (Id., at 1573).  Moreover, "the duty of confidentiality places effective limits on an attorney's future employment." (Id.)

Finally, in response to the State's claim that Freund had waived his right to conflict-free counsel, the Court  ruled that it would find a waiver only if, at the time of the waiver, the petitioner "(1) was aware that a conflict of interest existed; (2) realized the consequences to his defense that continuing with counsel under the onus of a conflict could have; and (3) was aware of his right to obtain other counsel." (Id., at 1583).

In stark contrast to the Freund decision is this second attorney-client conflict-of-interest case; only here the Second Circuit used decidedly different colored eyeglasses to arrive at a dramatically different result.  The defendant in this case alleged that his counsel labored under an actual conflict of interest (a) because of the defendant's inability to pay his legal fees and (b) because, during the pendency of the very criminal proceedings that led to his conviction, the attorney had initiated and won two separate civil lawsuits to recover those unpaid fees and expenses.  In fact, things got so hostile that not only did counsel threaten to quit on a number of occasions, at least twice he filed formal motions in court to withdraw from the case - which were promptly denied.

With an air of ennui and a rather large dose of self-delusional ivory-tower confidence, the Second Circuit never even hesitated in denigrating those claims.  It authoritatively pronounced: "We have never held that a failure to pay fees or an attorney's motion to withdraw for his clients failure to pay, without more, gives rise to a conflict of interest and decline to do so here."  (Id., at 71).  After all, it concluded, although "[t]here is little question that a defendant's failure to pay fees may cause some [sic] divisiveness between attorney and client . . . we presume that counsel will continue to execute his professional and ethical duty to zealously represent his client, notwithstanding the fee dispute." Furthermore, it continued, "the nature of the civil proceeding [that the attorney brought in this case] was such that it was highly unlikely that it engendered sufficient hostility to infect the attorney-client relationship in [the defendant's] criminal case."  (Id., at 72).

Aside from its utopian-like confidence in the unerring good-will of all warring litigants, the Court did explain its views on the various categories of Sixth Amendment violations.  First on the menu were the rare giant whoppers which constituted per se violations - and there were only two of those.  Next came the medium violations that don't boil to the level of per se violations but which "may jeopardize the adequacy of representation."  Finally came the well-cooked claims that are really unrelated to a conflict of interest and must be analyzed under the "familiar framework" of Strickland v. Washington, 466 U.S. 668 (1984), which requires the court to presume that counsel's conduct fell within "the wide range of reasonable professional assistance."

It is becoming quite obvious that the Government is dedicated to expanding the elastic reach of the severe money laundering penalties to cover just about any crime.  Far too few defendants challenge those efforts; and in this drug conspiracy case the Government probably felt that it had a certain winner.  After all, the Government found approximately $5 million in cash at the home of one of the defendants as well as documents and notebooks indicating that an additional $6 to $7 million dollars in drug proceeds had been involved.

Undaunted by that evidence, two of the defendants argued that the Government had failed to present sufficient evidence to convict them of money laundering in that it never presented any evidence to show that a "financial transaction" had occurred, within the meaning of 18 U.S.C. § 1966(c)(4)(A).  In response, the Government confidently argued that "the collection of more than $11 million in less than a six week period of time . . . and the presence of $5 million in drug proceeds support the inference of a disposition of the drug proceeds . . . and the inference of intent to commit money laundering."  (Id., at 284).

The Court caustically retorted that "[n]otwithstanding this inference-filled expose, currency found by officers in connection with a drug trafficking offense, by itself, is insufficient to support a money laundering conviction."  (Id.)  Relying heavily on its important decision in U.S. v. Puig-Infante, 19 F.3d 929, 938 (5th Cir. 1994), the Court noted that, by definition, a "financial transaction" must be "a transaction . . . or other disposition or some action involving a financial institution or its facilities."  When some "transaction" that does not involve a financial institution or its facilities is charged, the government must show that a "disposition" took place.  It noted that the Fifth Circuit has defined the term "disposition" to mean "a placing elsewhere, a giving over to the care or possession of another."

Here, the Court noted that the Government had failed to show that the defendants in question had handled the stockpile of $5 million in case, or that they were "in any way" involved in the disposition of those funds.  Thus it concluded that "[w]hile the jury may draw reasonable inferences from the evidence, nothing reasonable could be inferred from this evidence."  Thus, it reversed the money laundering convictions of the two defendants.

This is an important decision that holds that the Texas Board of Corrections violated the petitioner's constitutional rights to procedural due process when it revoked the petitioner's parole on the basis of hearsay testimony.

While on parole, the petitioner was charged with sexual assault; but that charge was quickly dismissed by a jury after it had deliberated only five minutes.  Nevertheless, the State pressed on and sought to revoke his parole.  (Under one of the many "three-strikes-and-you're-out" laws, the petitioner faced a life sentence if his parole was revoked.)  At a preliminary parole revocation hearing, the petitioner was assured that the State would find and produce the complainant in the assault case so she could be examined by the petitioner; but he was sand-bagged because the State never called her to testify at the formal revocation hearing.  Instead it relied solely on the hearsay testimony of a parole officer.  Relying principally on the Supreme Court's seminal decision of Morrissey v. Brewer, 408 U.S. 471 (1972), the Fifth Circuit concluded that the petitioner had been denied his Sixth Amendment rights to confront and cross- examine an adverse witness; and it reversed the lower court's decision to deny the petitioner any habeas corpus relief.

This decision rejects a challenge to one of the Guidelines most controversial conditions of supervised release: the requirement that obligates the felon to "notify third parties of risks that may be occasioned by the defendant's criminal record."  (See U.S.S.G. § 5B1.4(a)(13)).  Normally the enforcement of that  requirement is left to the discretion of the Probation department ("as directed by the probation officer"); whereas in this case the court itself imposed the special condition - which dramatically changed the stakes.

The defendant pled guilty to embezzling $6,000 from a Federally insured bank; and he was sentenced to 30 days in custody, to be followed by three years of supervised release.  As a special condition of supervised release, the court ordered the defendant to inform his present and future employers of his conviction.  The defendant argued that the special condition had been imposed arbitrarily and unreasonably because the court had failed to take into account the circumstances of his crime and his unblemished criminal history.  He also argued that the special condition violated his First Amendment rights of freedom of speech and association.

The Court rejected the challenges on a number of grounds.  First, it stated that: "Supervisory conditions that implicate fundamental rights such as freedom of speech and freedom of association are subject to careful review, but if primarily designed to meet the ends of rehabilitation and protection of the public, they are generally upheld."  (Id., at 504).  Second, although the defendant's current job as a dispatcher did not involve the handling of money, financial records, or valuable cargo, the Court concluded that this "minimally-intrusive notification requirement would alleviate potential threats to current and future employers";  and that  notification was "less restrictive than an outright occupational ban prohibiting [the defendant] from working in a position of trust or within a particular industry."  (Id., at 505).  Thus, it ultimately held that the challenged requirement should be upheld as it bore a reasonable relationship to the crime and to the goal of protecting the public against the recurrence of criminal conduct.

Perhaps the most interesting part of the decision was the Court's refusal to apply automatically its ruling to the "standard Probation Department practice in this area"; and the Court's reference to several little- known  but extremely important rules that you won't learn about from most probation officers.  For example, the Court noted that "if there is to be an outright requirement that a person under supervision inform his or her employer about a criminal conviction, then the Probation Manual promulgated by the Administrative Office of the U.S. Courts directs that the condition ‘should generally be imposed by the court as a formal special condition of probation."  (Id., at 506, n. 4).  In addition, citing the same source, the Court also noted that if a Probation Officer decides to warn an employer and the supervisee "strongly opposes such action, the officer should present the matter to the court and request either an order directing the officer to make the warning or a modification hearing to impose a condition that the offender make the necessary disclosure." (Id.).

Without question, there are many Probation Officers who insist that all persons under their supervision must comply literally with all the recommended conditions of supervised release, whether or not those conditions have any reasonable relation to either the crime or the protection of the public.  Those same Probation Officers threaten that they are prepared to go to court immediately for a ruling if the supervisee refuses to sign an agreement to abide by such conditions.  Now, armed with knowledge of what the rules state, perhaps more supervisees should balk at automatic compliance with every wish of the Probation Officers.  After all, it is well-known that the courts have made it increasingly clear that they will no longer tolerate repeated motions by the Probation Officers who have no valid reason to exact some of those servile rules except to assuage their own bruised egos.

Once again, Judge Weinstein has granted a significant downward departure in a drug case.  The defendant, a 32 year citizen of the Dominican Republic, pled guilty to conspiracy to distribute drugs.  His base offense level was 38, requiring a sentence of 188 to 235 months.  After applying an assortment of adjustments and downward departures, Judge Weinstein sentenced him to time served - eight and a half months - and ordered him released to the INS for his mandatory deportation.  The most significant reduction in the sentence came from a downward departure of 15 levels.  Having learned from the many times he has been  burned by the Second Circuit on similar reductions in the past, this time the cagey Judge Weinstein used a broad range of justifications for his departure.  He found elements of coercion and duress; and thus used U.S.S.G. § 5K2.12 as one basis for his departure.  He found that the defendant, who had an I.Q. of only 67, suffered from a significantly reduced mental capacity; and so he used U.S.S.G. § 5K2.13 as a basis of support for his departure.  He found that the defendant's mental retardation would make him vulnerable to attack while incarcerated; and he used that as a basis for the departure.  Finally, after reminding the Second Circuit of its assertion in U.S. v. Johnson, 964 F.2d 124, 128-29 (2nd Cir. 1992) that "we are reluctant to wreak extraordinary destruction on dependents", the good Judge also concluded that "the need for defendant to provide for and support his family both financially and emotionally . . . militates in favor of a discretionary downward departure."  (Id., at 118).

 "We are not fetishistic about standards of appellate review.  We acknowledge that there are more verbal formulas for the scope of appellate review (plenary or de novo, clearly erroneous, abuse of discretion, substantial evidence, arbitrary and capricious, some evidence, reasonable basis, presumed correct, and maybe others) than there are distinctions actually capable of being drawn in the practice of appellate review."  United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995).