U.S.S.G. and Sentencing
Issues
These three cases explore various scenarios under which a sentencing enhancement for "obstructing or impeding the administration of justice" is permitted or not permitted under U.S.S.G. § 3C1.1.
Among the many issues raised by the defendant in the Webster case (a bankruptcy fraud case) was a claim that the two-level increase in his sentence for obstruction of justice was invalid because the district court (Judge Shabaz) had failed to make any specific findings of perjury. The Seventh Circuit agreed. Citing U.S. v. Dunnigan, 507 U.S. 87 (1993), the Court remanded the case back to the district court for further findings, stating that it had "failed to state with adequate clarity the factual basis for its conclusion that the defendant deserved the enhancement." (Id., at 1037). The Court also noted that "a finding that the defendant simply denied his guilt will not support the two-level increase" (id.); and it rejected as insufficient the district court's reference to the "overwhelming evidence" that had been summarized earlier in the sentencing proceedings. Finally it rather caustically rejected the Government's contention that the Seventh Circuit had accepted "fairly rudimentary observations" by district courts on this issue in the past
In the McLaughlin case, the Third Circuit also addressed the issue of whether alleged perjury supports the § 3C1.1 enhancement. In reversing the enhancement that was imposed, the Court cited the Dunnigan decision and it concluded that "the perjury of the defendant must not only be clearly established, and supported by evidence other than the jury's having disbelieved him, but also must be sufficiently far reaching as to impose some incremental burdens upon the government, either in investigation or proof, which would not have been necessary but for the perjury." (Id., at 140) (Emphasis in original).
In that case the Court also rejected the district court's (Judge Gawthorp) conclusion that the defendant had gone "that extra step" in attempting to impede the Government's investigation and prosecution of him for various tax crimes - principally by sending private investigators to obtain tape-recorded statements from potential witnesses to demonstrate that the IRS had violated the defendant's constitutional rights. The Third Circuit disagreed with the implication that the defendant's conduct fell within the type described in Application Note 3(a) because there was no evidence that the defendant had in any way "threaten[ed], intimidat[ed] or otherwise unlawfully influenc[ed] any witness" or "attempt[ed] to do so." (Id., at 140).
The Barnes case (which involved charges stemming from fraudulently impersonating a doctor) pushed the concept of "obstruction of justice" to its outer limits. In that case, the defendant objected to the imposition of the two-level enhancement that was imposed because he had failed to inform his probation officer about a fourth marriage, which ended in divorce prior to his then-current fifth marriage. Although the existence of that undisclosed marriage would seem to have little to do with the fraud charges at issue, the district court (Judge Letts) found that the omission was material because the fourth wife had made allegations of physical violence and deception. In affirming the use of the § 3C1.1 enhancement in this case, the Ninth Circuit affirmed its earlier holding in U.S. v. Draper, 996 F.2d 982, 986 (9th Cir. 1993) which held that "for purposes of the obstruction adjustment, it is irrelevant whether justice is actually obstructed or impeded. It is sufficient that the conduct in question has the potential for obstruction of the investigation, prosecution, or sentencing of the instant case." (Id., at 1293).
Among the plethora of cases this week that deal with restitution issues, these three are noteworthy. Baggett explained a key difference between the Victim and Witness Protection Act (18 U.S.C. § 3663-3364) (VWPA) and the more recent Mandatory Victims Restitution Act of 1996 (MVRA), which was enacted as part of the Antiterrorism and Effective Death Penalty Act. Under the VWPA the court must first consider the defendant's financial circumstances before setting the amount of restitution to be paid; while under the MVRA the court is required to impose "full" restitution without considering the defendant's economic circumstances.
The Kunzman case held that the Government may seek restitution in favor if victims who hold debts of the defendant, even if such debts have been discharged in bankruptcy. Citing the provisions of 18 U.S.C. §§ 3363(b)(4) and 3663(e)(1), the Malpeso court held that the court may order a defendant to pay restitution to the FBI to compensate for its payment of the costs of relocating the defendant's victims.
This case highlights both an important limitation on a 1994 amendment to the statutes regulating supervised release (18 U.S.C. § 3583(h)) and an oft-overlooked, but important, provision of the same statutes (18 U.S.C. § 3583(e)(3)) which limits the ability of the Government to convert the supervised release statutes into a perpetual, revolving door resentencing mechanism. While § 3583(h) now permits the courts to impose successive terms of supervised release each time a defendant is found guilty of an infraction of an earlier sentence of supervised release, § 3583(e)(3) specifies that the total prison time a defendant may serve for revocation of probation is five years for a Class A felony, three years for a Class B felony, and two years for a Class C or D felony.
In the instant case, the petitioner was indicted in 1990 of various drug trafficking and gun possession charges, and he was ultimately sentenced to a term of imprisonment and a five year term of supervised release. Among the conditions of supervised release that were imposed upon him were requirements that he submit to "drug after care" counseling and that he discontinue any drug use. In 1994 he was charged with violations of those conditions; and Judge Duffy sentenced him to an additional 20 months imprisonment and imposed a new term of supervised release. In 1997, the petitioner, acting pro se, filed a motion pursuant to 28 U.S.C. § 2255 challenging the new term of supervised release on the grounds that, because § 3583(h) was not in effect at the time of his original conviction, the new term of supervised release violated the Ex Post Facto Clause.
The Government opposed the motion on the grounds that the defendant's failure to object to the sentence at the time it was imposed constituted a procedural default which could only be overcome if he could meet the "cause" and "prejudice" standards enunciated by the Second Circuit in Campino v. U.S., 968 F.2d 187 (2nd Cir. 1992); and it argued that the petitioner could not show any "cause" for his failure to appeal his sentence earlier. Judge Lowe disagreed. She noted that the "cause" and "prejudice" standard does not apply if the petitioner can establish his "actual innocence."
The court concluded that, because the petitioner's original offense took place prior to § 3583(h)'s enactment, the imposition of a new term of supervised release clearly violated the Ex Post Facto Clause since it constituted "potentially greater punishment" than that available at the time the petitioner committed his original offense. In support of that position, the court pointed to the Government's admission that if the petitioner were to violate his new term of supervised release and was resentenced on that charge he could end up serving more time in prison than that permitted by § 3583(e)(3). After commenting that it is "difficult to think of one who is more ‘innocent' of a sentence than a defendant sentenced under a statute that by its very terms does not even apply to the defendant" (id., at 527), the court granted the petition and vacated the second term of supervised release.
In this case, the Ninth Circuit reversed two convictions on the grounds that the defendants' speedy trial rights had been violated. The two defendants were originally indicted in 1992 on a number of drug charges. Their initial trial commenced in June of 1993; and they were found guilty and sentenced to 20 and 30 years in prison, respectively. On appeal, their convictions were reversed on grounds unrelated to the instant case; and the Government immediately set about re-trying them.
Three hundred ninety three (393!) days after the Ninth Circuit's mandate vacating the prior convictions was issued, the defendants were again brought to trial on the same charges. Based on that long delay, the defendants filed a number of motions to dismiss the charges on the grounds that the Speedy Trial Act had been violated. At least two of those motions were simply ignored by the district court (Judge Tanner); but on the day before the retrial began he denied a renewed motion - without any explanation. At trial the defendants were again convicted and they were resentenced to the same 20 and 30 years in prison. They again appealed, and in this decision the Ninth Circuit agreed that there had been "a clear Speedy Trial Act violation." It vacated the convictions and remanded the case back to the district court - but to a different judge - to determine whether the dismissal should be with or without prejudice, "taking into account the factors set forth in [18 U.S.C.] § 3162(a)(2)." (Id., at 1271).
In its decision, the Court addressed the long delays that occurred in this case in the context of one particular 112-day continuance that had been granted by the district court "to assure the continuity of counsel for both the defendants and the government." That continuance had been granted by the district court under its presumed authority set forth in 18 U.S.C. § 3161(h)(8) - a provision that permits the district court to toll the speedy trial clock while granting a continuance "if the ends of justice . . . outweigh the best interest of the public and the defendant in a speedy trial."
The Ninth Court ruled that, in granting that continuance, the trial court had made at least two "clear errors." First, it concluded that the district court did not make "the required independent findings ‘with reference to the facts as of the time the delay [was] ordered'. . . . [The district court] must conduct an appropriate inquiry to determine whether the various parties actually want and need a continuance, how long a delay is actually required, what adjustments can be made with respect to the trial calendars or other plans of counsel, and whether granting the requested continuance would ‘outweigh the best interest of the public and the defendant[s] in a speedy trial'." (Id., at 1269.) Second, the Court bluntly concluded that "the district judge's sole rationale for the continuance - that it was necessary in order not to ‘deny both the defendants and the government continuity of counsel' - is wholly unsupported by the record." (Id., at 1270).
The decision of the Ninth Circuit to reverse the convictions a second time is not so surprising, considering that a 393-day hiatus between the two trials is a bit outrageous. What is a bit surprising is that the Court ventured into forbidden territory by discussing some of the standards that govern the "ends of justice" exception - something that is rarely discussed either in public or in detail. Perhaps because it has become the generic panacea for curing the most difficult ailments under the Speedy Trial Act, most courts prefer to leave the cover-all criteria of the end of justice exception vague, mystical and very flexible. What we have here is a Court of Appeals decision that has finally articulated some meaningful and visible standards - and limits - by which the courts themselves will be judged when they grant their oft-used "ends of justice" continuances - and that is significant.
This is another one of those rare cases in which a conviction was vacated because of an impermissible constructive amendment of an indictment. The defendant was indicted for illegal distribution of cocaine and methamphetamine; but at trial the Government offered no evidence of any involvement with methamphetamine and only "sparse" evidence of a single involvement a small amount of cocaine. Most of the Government's evidence consisted of the defendant's distribution and use of marijuana. The trial court (Judge Acara) instructed the jury that "it could find guilt on the basis of transactions involving any controlled substance regardless of which illegal substance was involved." After the defendant was convicted on all counts, he appealed and the Second Circuit agreed that the district court's charge, coupled with the Government's evidence, allowed the defendant to be convicted of offenses that were not charged.
The Court rejected the Government's contention that "the precise controlled substance is not a material element of a narcotics conspiracy because 21 U.S.C. § 841(a)(1) makes it illegal to distribute or possess with intent to distribute any controlled substance." It concluded that the defendant has the right to be tried "only on the charges contained in an indictment returned by a grand jury"; and that "an unconstitutional amendment of the indictment occurs when the charging terms are altered, either literally or constructively." Further, the Court ruled that "A constructive amendment of an indictment is a per se violation of the Grand Jury Clause of the Fifth Amendment ‘that require[s] reversal even without a showing of prejudice to the defendant." (Id., at 109).
For a different, but incorrigible, view on this increasingly popular tactic of the Government, see U.S. v. Dominguez, 992 F.2d 678, 682 (7th Cir. 1993), where the Seventh Circuit blithely concluded that "The Government's failure to prove the identity of the substance underlying a drug conviction . . . creates a significant problem. It casts doubt on an essential element of the crime, the defendant's intent to sell narcotics. . . . The error is not fatal to the conviction however . . . . Proof of the identity of a controlled substance is not essential to a conspiracy conviction."
Among the several issues reviewed in this case, the Court addressed the scope of Rule 16(a)(1)(E) of the Fed.R.Crim.P., which requires the Government to "disclose to the defendant a written summary of [expert] testimony the government intends to use . . . during its case in chief." Here, the defendant argued that the district court (Judge McLaughlin) had erroneously admitted damaging opinion testimony from law enforcement officers, who the Government did not qualify as experts in violation of Rule 16, that his "modus operandi" was consistent with that of an experienced drug trafficker. The Court responded that "although the district court erred by allowing in evidence as ‘lay opinion' testimony by law-enforcement officers, we conclude that the error was harmless, and we affirm [the defendant's] conviction and sentence." (Id., at 1242).
Confirming the oft-expressed fear that rules may only be rules when the courts want them to be, this Court also held that "a violation of Rule 16 does not itself require reversal, or even exclusion of the affected testimony. . . . [The defendant] must demonstrate prejudice to substantial rights to justify reversal for violations of discovery rules." (Id., at 1247). For a moderate view on the failure to comply with Rule 16's notice requirements, see U.S. v. Sanchez-Galvez, 33 F.3d 829 (7th Cir. 1994), where the Seventh Circuit excused a similar Rule 16 notice violation, but only after concluding that any unfairness arising from the Government's default had been "remedied" because in that case the defendants had been granted time (a) to depose the witness in question before his cross-examination at trial and (b) to obtain a rebuttal witness.
This medley of Fourth Amendment cases shows the continuing, if not growing, mentality of police officers nationwide that aggressive and intrusive police action is theirs to dispense in every search as a matter of right; which calls to mind the ominous warning of Justice Marshall set forth in the Quote of the Week below.
In the Chan-Jimenez case, the Ninth Circuit reversed a conviction obtained because the search of the defendant's truck was not supported by either probable cause or a valid consent; and therefore the fruits of the illegal search should have been excluded from the trial. In that case, a policeman observed the Hispanic defendant driving a truck, and he began to follow the truck on the hunch that the truck "may contain contraband." All parties agreed that the truck was traveling within the posted speed limit; the driver did not commit any traffic violations; and that there was nothing unusual about such a truck in the area. When the truck finally pulled over to the side of the road, the policeman advanced with his hand on his revolver and began to interrogate the defendant. He ultimately asked the defendant if he could search the rear of the truck, and when the terrified defendant gave no verbal response, the officer searched the truck and found 245 pounds of marijuana. The district court (Judge Browning) concluded that while there was no reasonable cause to justify the stop, no "seizure" had occurred within the meaning of the Fourth Amendment and that the defendant had given his implied consent to the search. On those grounds he denied the motion to suppress.
The Ninth Circuit disagreed. It ruled that a "seizure" had indeed taken place because "a reasonable person in [the defendant's] place would not have felt free to leave or to ignore the officer's presence and go about his business." (Id., at 1326). The Court also held that a policeman's request for permission to search the truck "with one hand resting on his gun was implicitly coercive." (Id., at 1327).
In Alvarado-Ramirez, the district court also granted a motion to suppress evidence seized from another Hispanic who drove his vehicle through a closed checkpoint without slowing down and without making eye contact with a border patrol agent who happened to be sitting at that station. The court agreed that border agents may conduct routine stops and searches without a warrant or probable cause, because the United States has the right to control what persons cross its international boundaries. However, the interior checkpoint in question was not the "functional equivalent" of the border; and since the defendant had no obligation to slow down at a closed checkpoint or make eye contact with anyone, the agent had no reasonable probable cause to stop the vehicle.
In Brodie, the district court granted a motion to suppress evidence that was seized during a warrantless search of the defendant's home from which a smell of ether was eminating. The Government argued that there were "exigent circumstances" that justified the search without a warrant - namely the fear that the ether was in imminent danger of destruction. The Court rejected that argument for several reasons, including its conclusions that: (a) "the officers did not have a reasonable concern that the evidence was in imminent danger of destruction"; (b) "ether is a legal, non-controlled substance which has legitimate uses"; (c) "approximately two hours elapsed between the time the first officer smelled ether and the time that the warrantless search was executed"; and (d) two investigators were already on their way to secure a search warrant." (Id., at 855).
This is a significant prison litigation case in which the court invalidated - as "facially violative of the First Amendment" - a recent, little noticed statute that permits the Federal Bureau of Prisons ("BOP") to refuse to distribute to prisoners mail that it deems to be "sexually explicit" or that "features nudity." The statute in question, known as the Ensign Amendment, was enacted as an attachment to a comprehensive budgetary bill. In the words of the Court: "No hearings were held by Congress in enacting the Ensign Amendments and no committee report was issued. No discussion of the statute appears in any Conference Report." (Id., at 367). In fact, the one floor statement cited by the Court was the following statement made by the appropriately named Representative Christiansen who barked: "It is deplorable . . . to think that America's Federal prisoners are granted access to vulgar, sexually explicit materials while serving time in our Federal prisons. . . . It is time to stop this ridiculous cycle of hypocrisy and end prisoner's (sic!) access to sexually explicit materials. I believe that this bill will make sure prisons are punishment, not playgrounds." (Id., at 367).
The BOP immediately issued a series of
regulations (set forth at 28 C.F.R. § 540.72) implementing the Ensign
Amendment; and it specifically decided that it would "ban outright certain
well-known adult publications, such as Playboy and Penthouse." Although
the regulations did provide for an appeals process, they did not permit
the prisoners to see the banned materials even for the purpose of determining
whether to appeal. Various prisoners and publishers (including Playboy
Enterprises) brought suit seeking to have the statute declared unconstitutional.
Citing principally the seminal case of Thornburgh
v. Abbott, 490 U.S. 401 (1989), Judge Sporkin concluded that
the new regulations were neither "neutral" nor "rationally related to their
objective"; and he granted the requested motion for permanent injunctive
relief. He concluded by expressing his concerns that this "hastily-drafted
statute" was passed with "little consideration of its consequences. . .
. There was no Congressional finding that this Amendment would serve a
rehabilitative, or any other purpose. There was no investigation
into the practical concerns raised in enforcing such a statute. And
there was no consideration of the Constitutional concerns raised by such
legislation." (Id., at 369-70). All in all, just a fairly
typical piece of "gut-reaction" legislation designed to win votes - even
at the cost of the Constitution.
"The evidence in this cause has evoked images of other nations, under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption, by individuals who held temporary power in Government. The spectre of American citizens being asked, by badge-wielding police, for identification, travel papers - in short a raison d'etre - is foreign to any fair reading of the Constitution, and its guarantees of human liberties. This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police approach every person on board buses and trains . . . and check identification [and] tickets, [and] ask to search luggage - all in the name of 'voluntary cooperation' with law enforcement." Florida v. Bostick, 501 U.S. 429 (1991) (Marshall, J., dissenting, quoting from Florida v. Kerwick, 512 So.2d 347 (Fla. App. 1987)).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal
Reporter:
This week: 44
Year to date: 2117
Cases in the Federal
Supplement: This
week: 27 Year
to date: 1109