For years, the courts have delicately skirted the infamous practices of sentencing entrapment and its cousin, sentencing factor manipulation. Sentencing entrapment occurs "when the government causes a defendant initially predisposed to commit a lesser crime to commit a more serious crime"; whereas sentencing factor manipulation occurs "when the government engages in improper conduct that has the effect of increasing a defendant's sentence." United States v. Garcia, 79 F.3d 74, 75 (7th Cir. 1996).
Many courts simply refuse to admit that the Government would engage in such untoward games; and they dismiss claims of improper conduct as nothing more than "trendy" arguments that have no substance. (See, United States v. Washington, 44 F.3d 1271 (5th Cir. 1995)). Judicial decisions are peppered with statements such as: "The notion of 'sentencing entrapment' has never been recognized by our Court of Appeals." (United States v. Franco, 826 F.Supp. 1168, 1170 (N.D.Ill. 1993)). The 11th Circuit has ruled that "sentencing entrapment is a defunct doctrine" (United States v. Miller, 71 F.3d 813 (11th Cir. 1996)); and the 7th Circuit has proudly but somewhat blindly held that "there is no defense of sentencing manipulation in this Circuit." (Garcia, 79 F.3d at 76).
In this case, a Federal grand jury indicted the defendant for a drug offense that occurred approximately two years previously, prior to his conviction and sentencing in a State case. The defendant claimed that the Government had improperly delayed indicting him on the new crime until he had served his 33 month State sentence. He argued that "if he had been charged with the federal offense while still serving his state sentence, the federal sentence would, under U.S.S.G. § 5G1.3(c), have been set to run concurrently with the state sentence." (Id., at 800).
The Court rejected the claim. It ruled that "nothing in the record indicates that the delay in this case was sinister"; and that the defendant had failed to carry his burden of proving bad faith on the part of the Government - a burden, incidently, that can probably only be met if the prosecutor decides to make a candid, but career-ending, admission of bad faith. To soothe its conscience, the Court also cited a number of previous cases in which it had rejected delays of up to three and one-half years.
Two lessons can be learned from this decision. First, at least the First Circuit recognizes that sentencing manipulation can exist. Citing its decision in U.S. v. Saldana, 109 F.3d 100, 104 (1st Cir. 1997), the Court did acknowledge that "deliberate tampering to increase a sentence would be a concern." However, Saldana also reasoned that "the ordinary accidents of acceleration or delay are part of the fabric of criminal proceedings" (id.); and from that broad proposition this Court concluded Government "is free, within broad limits, to set such snares for unwary criminals." (Id., at 801).
Second, although not discussed in this case, some courts have held that, whether or not a defendant can prove that sentencing factor manipulation occurred, the defendant may be eligible for a downward departure under the Guidelines. For example, in U.S. v. Martinez, 77 F.3d 332, 337 (9th Cir. 1996), the Ninth Circuit squarely ruled that: "A harsher sentence caused by the fortuity of delay in some indictments of offenses which would be grouped under U.S.S.G. § 3D1.2 is a mitigating circumstance of a kind not taken into consideration by the guidelines, so it would be within the discretion of the district court judge to depart downward for this reason." A Circuit-by-Circuit analysis of recent cases on the issue of sentencing factor manipulation appears in Punch and Jurists' Survey of Entrapment cases which is posted on its Homepage on the Internet.
In this multi-faceted, multi-defendant drug case an important venue issue stands out. At the conclusion of the Government's case, one of the defendants moved to dismiss the gun charges against him for lack of venue. He was charged with a violation of 18 U.S.C. § 924(c)(1), which makes in unlawful to use or carry a firearm "during and in relation to any crime of violence or drug trafficking crime." The defendant argued that because the evidence conclusively established that he had neither "used" nor "carried" the gun in question outside of Maryland, venue for that charge could only properly lie in Maryland.
The district court (Judge Barry) denied the motion. She elected to follow the approach adopted by the Fifth Circuit in U.S. v. Pomeranz, 43 F.3d 156 (5th Cir. 1995) where that court held that a defendant could be properly tried for unlawful use of a firearm during a drug trafficking offense in any district in which venue was proper for the underlying drug distribution conspiracy.
On appeal, the Third Circuit disagreed and it vacated the gun conviction (and the consecutive five year mandatory term of imprisonment) on the grounds of improper venue. In so doing, the Third Circuit adopted the analysis of the Ninth Circuit in U.S. v. Corona, 34 F.3d 876 (9th Cir. 1994), where the court held that Nevada was improper venue for a § 924(c) charge when the defendant never actually used or carried a firearm in Nevada, even though Nevada was the proper venue for trying the defendant on the underlying drug conspiracy.
As noted in the Quote of the Week below, proper venue is a safeguard twice guaranteed by the United States Constitution; and its purpose is to prevent oppressive prosecutions of criminal defendants in States that have no connection to the crime.
Notwithstanding the Constitution, the Government advocated a pragmatic approach to the issue. It urged the Court to consider the disruptive effect and the costs of being forced to use duplicative trials, even facetiously arguing that its resources would be "dramatically strained" if it were forced to adhere to the Constitution and undergo separate trials. (Id., at 849). The Government also argued that, when determining venue, the court should look closely at "the nature" of § 924(c)(1). "In other words, because a violation of § 924(c)(1) is dependent on the predicate offense . . . it would be illogical to require the § 924(c)(1) offense to be tried in a different venue." (Id.)
Although Judge Alito agreed with the Government's position in a caustic dissent (e.g., "I cannot believe that the meaning of the constitutional restrictions on venue turns on such syntactical trifles" (id., at 860)), the majority held that such a position runs counter to the principles established by the Constitution, Rule 18 of the Fed.R.Crim.P., and the rulings of the Third Circuit. Citing the long-recognized "verb test", it ruled that § 924(c)(1) "unambiguously designates the criminal conduct that is prohibited as ‘using' or ‘carrying' a firearm. It follows that one ‘commits' a violation of § 924(c)(1) in the district where one ‘uses' or ‘carries' a firearm." (Id, at 849). It further concluded that Congress had not drafted § 924(c) to allow venue to lie in any district where the Government could bring the related crime of violence or drug trafficking offense; and that "while . . . Congress cannot abrogate the venue guarantee altogether, it can define a crime broadly such that commission of that crime will likely cross state borders." (Id., at 850).
We are pleased to announce that we have posted Attorney John McDonald's brief on this issue in the Briefs and Motions Section of our site on the Internet. Mr. McDonald's brief was filed in one of the several related cases considered on this consolidated appel, namely U.S. v. Rodriquez-Moreno, Docket No. 96-5163). While Mr. McDonald's brief explored several other issues that were raised on the consolidated appeal, Point I of his brief reviewed the law on the improper venue issue discussed above.
Mr. McDonald has also advised us that, by a 6 to 6 vote, the Third Circuit recently refused to reconsider its ruling through an en banc hearing. We guess that means that we can now expect the Department of Justice to propose broad new amendments to § 924(c) to permit the Government to shepherd its "dramatically strained" resources.
To the obvious horror and chagrin of the Government, this case reopens one of the worst chapters in the long and illustrious history of prosecutorial misconduct - the disgraceful episodes of the infamous El Rukn's trials and the appalling, still uncensored conduct of Assistant United States Attorney William R. Hogan, Jr. of Chicago.
The saga of those cases has been told in many forums; but three judicial expositions stand out, namely United States v. Burnside, 824 F.Supp. 1215 (N.D.Ill. 1993); United States v. Andrews, 824 F.Supp. 1273 (N.D.Ill. 1993); and United States v. Boyd, 833 F.Supp. 1277 (N.D.Ill. 1993). There, Judges Holderman, Conlon and Aspen systematically chronicled how the Government bestowed sex, drugs and other "benefits" on a long list of protected witnesses while they were in prison to make sure that they gave the proper testimony against the members of a Chicago street gang who were charged with illegal drug activities and related crimes that took place over a 23 year period.
After the Government's tactics netted some
54 convictions in five separate trials, defense counsel uncovered shocking
evidence of how those convictions were obtained. Judge Holderman
described those tactics with words that chisel an ice-pick into one's spine:
"[N]ot only did [the Government's] witnesses use illegal drugs, but the
government tacitly allowed its witnesses to engage in the very type of
criminal conduct which law enforcement officials are supposed to investigate
and prosecute, not overlook and assist. The government witnesses
were allowed not only to continue their illegal drug use unhindered, but
were provided with governmental assistance which enabled them to do so."
(Burnside, id., at 1265).
One of the most astonishing (albeit little
publicized) aspects of the El Rukn's saga was that two of the five judges
who presided over those trials refused to take any corrective action -
despite the fact that they were aware of the same facts that led the three
other judges, sua sponte, to vacate the convictions and order new
trials. As reported in Burnside, Judges Harold Baker and Richard
Mills, "denied the post-trial motions in their respective 'El Rukn' trials
without a hearing or consideration of further post-trial evidence."
(United States v. Burnside, 824 F.Supp. 1215,
1223 (N.D.Ill. 1993)). In
other words, despite overwhelming evidence that the overall atmosphere
of those trials was so infected with gross improprieties and rank violations
of the defendants' Constitutional rights that they demanded judicial intervention,
at least two Federal judges meekly rejected the claims of prosecutorial
misconduct and denied any relief without even holding a hearing on the
alleged (and now proven) improprieties and without even considering any
post trial evidence.
The cases that were dismissed went back to new "cleansed" trials; and new convictions were obtained. The defendants then appealed, arguing that their Double Jeopardy rights had been violated. Specifically they argued that the prosecutors had intentionally suppressed favorable evidence and had permitted the knowing use of perjured testimony at the first trial because the prosecution believed "that if the truth had surfaced at the first trial, . . . they would lose." (Id., at 1085). That set of circumstances, they argued, brought their appeal within the purview of the holdings in two cases: Oregon v. Kennedy, 456 U.S. 667 (1982) and U.S. v. Wallach, 979 F.2d 912 (2nd Cir. 1992).
In Kennedy, the Supreme Court held that the Double Jeopardy Clause does bar retrial in limited circumstances where the Government engages in prosecutorial misconduct which gives rise to a successful motion for mistrial, and such misconduct was "intended to provoke the defendant into moving for a mistrial." Since Kennedy involved a case in which the defendants were forced to move for a mistrial (which is not what happened in the El Rukns cases), the defendants then urged the Seventh Circuit to expand the parameters of Kennedy by adopting some dicta from the Wallach case.
In Wallach, the Second Circuit suggested that an extension of the Kennedy rule might also be warranted in certain other circumstances where prosecutorial misconduct is undertaken with the intention of denying the defendant an opportunity to win an acquittal; but it limited the scope of that suggestion by also stating that it would apply only when the prosecutor believed that his misconduct was necessary "to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct."
In a lengthy decision, the Seventh Circuit rejected the defendant's appeal on two grounds. First, it refused to subscribe to "a Wallach-type expansion of Kennedy." Second, it held that "Doyle would have to show, and he cannot, that the prosecution knew an acquittal was likely and that misconduct would be the only way to stave it off." (Id., at 1087). In fact, the Court concluded that "if (sic!) the prosecution was underhandedly attempting to curry favor with certain cooperating El Rukn witnesses in order to obtain favorable and helpful testimony, the prosecution was not doing so in order to abort the trial. Rather, if (sic!) this misconduct did occur, it more likely was undertaken with the intent to win at trial - not to force a second go-around in a complicated, expensive, lengthy and resource-depleting trial."
Our reading of this decision is that the Court was imprisoned by its own paradigms. Its refusal to acknowledge - openly and forthrightly - the scandalous nature of the prosecutorial misconduct, which unquestionably did occur and which has been generally acknowledged by many judges, fore-shadowed the outcome and left no incentive for the Court to reach out with a courageous decision that would appropriately punish the Government for what occurred. We guess that there is just a limit on how much abuse any court is willing to heap on the Department of Justice - no matter how scandalous its conduct may have been.
As we have often noted recently, there is a growing tendency on the part of the courts to treat all conditions of supervised release generically; and to impose as many crowd-pleasing conditions as possible without regard to whether those conditions have anything to do with the defendant's crime or the twin goals of supervised release: the rehabilitation of the defendant and the protection of the public - and without any recognition of how those conditions will be used by the probation officers as tools of pure harassment. See, for example, the discussion of U.S. v. Morey, 120 F.3d 142 (8th Cir. 1997) and Benson v. U.S., 969 F.Supp. 1129 (N.D.Ill. 1997), which appeared in the Sept. 15, 1997 issue of Punch and Jurists.
This is an important decision on that subject because it strongly reaffirms the principle that "conditions that restrict a probationer's freedom must be especially fine tuned." (Id., at 1223). The defendant in this case contested only one component of his sentence - namely, he claimed that the district court (Judge Cambridge) abused its discretion when it placed special conditions on his supervised release which absolutely prohibited him from obtaining or consuming alcohol, subjected him to testing to detect the presence of alcohol in his body, and required him to submit to warrantless searches for alcohol.
The district court justified those conditions by noting that the defendant had admitted smoking marijuana (but then again, so did President Clinton); so, it officiously concluded that "Anybody who is drug dependent can have a tendency, if one particular drug is cut off, to use some other drug."
In vacating those conditions, the Eighth Circuit observed that "there was no evidence before the district court that [the defendant was ‘drug dependent" nor was there any evidence even "suggesting that [the defendant] abused alcohol or that the use of alcohol played a role in the crime to which he pleaded guilty." (Id., at 1224). Thus, it determined that the special conditions were not "reasonably related to the goals of rehabilitation and protection." In fact, the court concluded "societal goals will be met if fear of retribution and further punishment causes convicts who at one time used illicit drugs to switch to moderate and responsible alcohol consumption. In this way, at least in once sense, the system converts criminals to law abiding citizens." (Id.).
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 1247.) 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. Thus, the Ninth Circuit vacated
the sentence and remanded the case back to the district court.
This case belongs in that runaway best-seller entitled "Fifty Ways to Rig a Sentence." Rule 32(b)(6)(B) of the Fed.R.Crim.P. provides that a party may object to any "material information" contained in his Presentence Report ("PSR"); and Rule 32(c)(1) provides that when there is an objection to the recitation of information in the PSR, "the court must either make a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing." That same principle is reiterated in U.S.S.G. § 6A1.3.
Those provisions can pose a problem if the sentencing court is unwilling to referee disputes between the defendant and the Probation Department. Resolutions of disputed factors can take time; and they always raise the issue of whether or not there really is a sufficient preponderance of evidence to support the recommendations of the Probation Department which are easy for the courts to accept. So, the Eleventh Circuit simply invented a novel way of discarding objections to the PSR. It simply redefined what constitutes objectionable "material information."
In this case, the defendant objected to the factual conclusion in the PSR that a weapon of any kind had been used in the robbery that was charged and which formed the basis for the three level sentence enhancement that was imposed pursuant to the provisions of U.S.S.G. § 2B3.1(b)(2)(E). The Court concluded that there was no reason why the district court had to get involved and make the findings required by Rule 32(c)(1). Simply put, it held that Rule 32(c)(1) "is not applicable to an objection to a probation officer's legal opinions or conclusions." (Id., at 1453). In fact, in one of those broad, sweeping rules that is destined to change the method of preparing PSRs, the Court continued and ruled that, while defendants are permitted to challenge statements of fact in the PSR, they cannot protest "recommendations, opinions or conclusions that are not fundamentally factual in nature."
From now on, probation officers will simply
couch every questionable factual issue in the form of an opinion or conclusion,
and defendants will be required to sit silently and meekly with no chance
of protesting and no chance of limiting the very excesses that Rule 32(c)(1)
was designed to cure.
These two cases show the extremes of what it takes to prove that newly discovered evidence warrants a new trial under Rule 33 of the Fed.R.Crim.P. - and the Testa case gives new meaning to the vaunted principle of judicial restraint.
From his opening sentence in the Testa case, Judge Rakoff evidenced extreme antipathy towards the defendants in this case. He wrote: "An argument built on a lie is a showroom convertible: it looks great, but it doesn't take you anywhere." (Id., at 834). Dramatically emphasizing a degree of open hostility and scorn towards the defendants that is rarely seen, he peppered his Opinion and Order with phrases like "unworthy of belief" and "preposterous."
Of course, the defendants had been convicted of various RICO violations; and, in 1989, they were sentenced to life imprisonment, where it is obvious Judge Rakoff wanted them to remain. The problem was that, some months after the sentencing, one of the Government's key, infamous, gangster snitches, James Cardinale, made the embarrassing admission on a live national T.V. show, Larry King Live, that the defendants were "out and out framed and railroaded." When Larry King asked Cardinale if the Justice Department was aware of that, Cardinale responded "They asked me to do it." Of course, none of that appears in Judge Rakoff's opinion. IHe simply refused to acknowledge that the Government could or would engage in "putative subornation of perjury"; and so he resorted to invective and vilification of the defendants' allegations. To see how he refused to address some of the key allegations, one must read Attorney Herald Price Fahringer's Memorandum of Law in support of his motion for a new trial. That brief details how the Government "knowingly introduced perjured testimony" and withheld critical information from the defendants; and it is a textbook analysis of the law in this controversial field; and to enable our subscribers to read that brief, we have posted Mr. Fahringer's Memorandum of Law on our Briefs and Motions Section of our Homepage on the Internet.
A far more restrained Judge Howard, in the Warren case, was more sympathetic to a similar type of claim. He concluded that "where, as here, the material evidence upon which a verdict of guilty is grounded, and without which a guilty verdict, in all likelihood, would have been rendered, and such evidence is inaccurate and misleading, the verdict is not only inherently unfair, but compromises judicial integrity and, accordingly, a new trial is warranted." (Id., at 1297).
This case helps explain why Judge Learned Hand once described the conspiracy laws of our country as "the darling of the modern prosecutor's nursery." Harrison v. United States, 7 F.2d 259, 263 (2nd Cir. 1925).
The precise issue before the Court in this case was a Government motion to admit into evidence certain recorded hearsay statements made by one of the defendants to an informant which implicated his co-defendants. That issue was important because the Government was attempting to link a number of defendants into a common drug/gun conspiracy; and it appeared that most of the evidence implicating three of the co-defendants was based on statements made by the principal defendant to the informant.
Under Rule 801(d)(2)(E) of the Fed.R.Evid., statements made by a co-conspirator of a defendant during the course of and in furtherance of the conspiracy are not deemed to be hearsay when offered against that defendant. However, as this Court explained, before such statements can be admitted into evidence, the court must determine that the government has demonstrated, by a preponderance of the evidence, that as to each defendant "(1) a conspiracy existed, (2) the defendant and the declarant were members thereof, and (3) the proffered statement(s) were made during the course of and in furtherance of the conspiracy." (Id., at 1255).
In analyzing this issue, the Court reviewed some of the established rules that determine whether or not a conspiracy existed. For example, it noted that "it is immaterial whether the defendant knows, has met with, or has agreed with every conspirator"; and "a defendant, even if not an ‘agreeing' member of the conspiracy, may also be found guilty of conspiracy if he knew of the conspiracy's existence at the time of his acts, and his acts knowingly aided and abetted the conspiracy." (Id., at 1256).
In the end, the Court concluded that it was "more likely than not that a conspiracy existed, that the defendants participated in the conspiracy, and that the statements sought to be admitted were made during the course of and in furtherance of the conspiracy." (Id., at 1258). On that basis, the Court "conditionally" agreed to admit the hearsay statements into evidence, subject to the Government's actual proof at trial. As should be evident, the broad conspiracy laws permit proof on the basis of the newfangled "more than likely" standard, rather than the old, much-dishonored "guilt beyond a reasonable doubt" standard.
Proper venue in criminal proceedings is guaranteed in two separate provisions in the Constitution. Article III, Section II provides, in pertinent part, that "the Trial of all Crimes . . . shall be . . . held in the State where the said crimes have been committed"; and the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." Long ago, Justice Story explained the purposes of those provisions with these words:
"The object . . . is to secure the party
accused from being dragged to a trial in some distant state, away from
friends, and witnesses, and neighborhood; and thus subjected to the verdict
of mere strangers, who may feel no common sympathy, or who may even cherish
animosities, or prejudices against him. Besides this: a trial in
a distant state or territory might subject the party to the most oppressive
expenses, or perhaps even to the inability of procuring the proper witnesses
to establish his innocence." Joseph Story, Commentaries on the
Constitution § 925 (Carolina Academic Press reprint 1987).