Constitutional Issues

The Mansolo case is one of those artificial double jeopardy cases that shows how prosecutors can turn a single act into multiple crimes to achieve consecutive sentences.

The Castro case is an appalling case that shows how Federal agents can use their muscle to get local law enforcement officials to engage in an illegal search and seizure.

U.S.S.G. and Sentencing Issues

The Hunt case highlights the distinction between simple possession of drugs and possession with intent to distribute.

In the Wilson case, the Seventh Circuit affirms its policy that sentencing entrapment is not a justification for a downward sentencing departure.
 
The Gallegos case rejects a series of reasons given by the district court for a downward departure, including an "inexplicable sentencing disparity."

Miscellaneous Issues

The Moore case is another of a recent line of cases to reject the spirit of the Supreme Court's recent ruling that evidence of the nature of a defendant's prior crime is unduly prejudicial in cases charging a felon in possession of a gun crime.

The Winchell case is an astonishing case in which a defendant was prosecuted for filing false tax returns because, in an effort to annoy the IRS, he claimed $7.5 billion in income.
 
The Word case reversed a conviction because the district court refused to allow the defendant to present evidence of the Battered Woman's Syndrome.

The Miniken case presents an all-too-accurate view of the power of prisons to violate the First Amendment by preventing the distribution of legal newsletters such as Prison Legal News. 
 

This is one of those crazy double jeopardy cases that makes one wonder when the final demise of the Double Jeopardy Clause will be rung.  Here, the defendant was charged with two separate crimes: possession of a stolen firearm, in violation of 18 U.S.C. § 922(j); and possession of the same bloody firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k).  The statutory maximum punishment for the first crime is 120 months in prison; and the statutory maximum punishment for the second crime is 60 months in prison.  The defendant was convicted of both crimes and he was sentenced to 150 months in prison (by means of a separate consecutive sentence of 30 months for the barely distinguishable obliterated serial number crime).

The defendant appealed his sentence, arguing that the two sentences violated the spirit and principles of the Double Jeopardy Clause.  He acknowledged the familiar Blockburger rule (Blockburger v. U.S., 284 U.S. 299 (1932)), which established the hair-splitting principle that a person can indeed be punished for two separate crimes if each crime requires the proof of some "element" that the other does not [here, proof that the serial number had been obliterated].  However, relying on the Fifth Circuit's own U.S. v. Munoz-Romo, 989 F.2d 757 (5th Cir. 1993), he argued that violating two subsections of § 922 is not, in the sense contemplated by Blockburger, a violation of two separate statutory provisions.

The Court rejected that analysis.  Perceiving disingenuous distinctions without differences (but without once referring to Grimm's fairy tale, The Emperor's New Clothes), it wrote: "We conclude that Munoz-Romo is not controlling.  First, because Munoz-Romo involved clearly different statutory provisions (§ 922(g)(1) and (5)), that holding does not necessarily control the result of this case.  Furthermore, Munoz-Romo involved different subparts of a single subsection of § 922, while this case involves two separate subsections of § 922."  (Id., at 751) (Emphasis added.) [As a matter of interest, § 922(g) deals with the characteristics of the person; whereas §§ 922 (j) and (k) deal with the characteristics of the gun.]

Based on such artificial distinctions, Mr. Mansolo will now spend an additional 30 months in prison because the prosecutor, in his charging decision, was able to concoct the theory that Mansolo had indeed committed two very separate crimes.  (See the Quote of the Week below).  And we assume that from now on, all future laws will be written as subparts to avoid the dreaded subsections!

In the parlance of the Government's alphabet language, this is one of those IYCMAVAGSSTDI* cases (*"If you can't make a valid arrest, get some sucker to do it.")  Here, a "massive" armada of stalwart Federal, State and local law enforcement officials, in multiple vehicles and a helicopter, targeted one Edgar Castro as a likely candidate for a drug arrest.  They listened to his phone conversations.  They tailed him through convenience stores, K-Marts and shopping malls.  They tailed him for 115 miles as he drove through four separate Texas counties.  When they failed to come up with a single valid reason to stop his van and search him for drugs (the Fifth Circuit concluded that they didn't even have any "reasonable suspicion" of any wrongdoing), the fearsome gang finally radioed ahead to the fiercely independent Polk County Sheriff's Department.  Effectively, the message was: There's a Hispanic named Castro driving a rented blue Suburban who is "involved in a narcotics transaction" - and he needs to be stopped.  We don't really have enough evidence to stop him, so you guys "develop [your] own probable cause" for stopping the Suburban.  (Id., at 754.)

The dutiful and ever eager-to-please Polk County Sheriff's Department knew where its bread was buttered!  It quickly spotted the blue Suburban and determined that neither Castro nor his passenger was wearing a seat belt!  (Gadzooks!)  On that pretext, Castro was pulled over; his blue Suburban was subjected to an inventory search; and 600 pounds of cocaine were discovered.  Castro and his companion were quickly arrested, convicted and sentenced to some unspecified term of imprisonment - and they appealed to the Fifth Circuit.

The Fifth's Circuit's decision is amazing.  For example: "At no time did either Castro [or his companion] do anything that conceivably could have served as the basis for a finding of probable cause of a drug violation."  (Id., at 755).  "If these numerous federal and state law enforcement agents had, or believed that they had, probable cause to arrest, it defies logic and reason to believe that they would not have done so during the early surveillance or at some time in the 100-plus miles of trailing through several Texas counties."  (Id., at 756).  Instead, "the agents orchestrated a routine traffic stop, contacting a local deputy sheriff and instructing him to ‘create his own probable cause'."  (Id.)  There were no traffic violations as evidence by the fact that "no ticket was issued and no charges were filed."  (Id.)  Thus, the Court was forced to conclude that "taking possession of the Suburban for purposes of an inventory search was nothing more than a ruse to perform an unauthorized search ["IYCMAVAGSSTDI" in Government parlance] and the officers, particularly the federal officers, were fully aware of such."  (Id., except for the parenthetical).

The convictions were vacated; the evidence of the 600 pounds of cocaine was suppressed; and the case was remanded back to the district court (Judge Cobb).

Judge DeMoss, who dissented, was horrified.  In a lonely, splenetic defense of the stalwart drug officers, he argued that the Supreme Court had recently ruled, in Whren v. U.S., 135 L.Ed.2d 89 (1996), that the subjective intentions of police officers "play no role in ordinary, probable cause Fourth Amendment analysis."  Besides, he brashly concluded, the actions of the patsy-Polk County Sheriff's Department were a "reasonable exercise of police discretion . . . This is especially true given the fact that the Suburban was a rental car that obviously belonged to another party . . . ."  (Id., at 759).  And that, our friends, is the truth, the whole truth and nothing but the truth from the good folks in Polk County, Texas!

This is an interesting drug case in which the Fifth Circuit first vacated a drug conviction for possession with intent to distribute because the Government had failed to prove anything but simple possession; and second directed the entry of a judgment of conviction on a lesser included offense (simple possession of drugs) even though the district court (Judge Garcia) had not instructed the jury that it could find the defendant guilty of that lesser included offense.

The sentencing difference between simple possession of drugs in violation of 21 U.S.C. § 844 and distribution of drugs in violation of 21 U.S.C. § 841 is enormous.  Under U.S.S.G. § 2D2.1, the starting base offense level for possession of 8 grams of crack cocaine is level 8; whereas under U.S.S.G. § 2D1.1, the starting base offense level for distribution of 8 grams of crack is level 26.  Here, the defendant appealed her conviction alleging that her possession of 7.998 grams of crack was not sufficiently large for the jury to infer that the crack was intended for distribution, particularly since the Government failed to produce any other meaningful evidence that the drugs were intended for distribution in violation of 21 U.S.C. § 841(a)(1).

On appeal, the Government lamely pointed to a razor blade and a gun that were found at the defendant's home and to the absence of any drug paraphernalia such as smoking pipes; however, it also made the astonishing concession that "the amount [of the drugs] alone, by itself, is not sufficient to support an inference of intent to distribute."  (Id., at 742).

The Fifth Circuit agreed that intent to distribute "may be inferred solely from the possession of an amount of controlled substance too large to be used by the possessor alone"; and it even cited one case (U.S. v. Lamarr, 75 F.3d 964, 973 (4th Cir. 1996)) where the court determined that possession of five grams of crack was sufficient to justify a conclusion that the defendant was "dealing" in crack.  (Without comment - or even derisive laughter, the Fifth Circuit implied that the decision in Lamarr wasn't worth much precedential value because the court in that case had based its conclusion on a letter written to the editor of the Washington Post by some irrefutable authority who concluded that "five grams of crack cocaine is the equivalent of 50 street doses [and that] anybody holding that much crack is dealing."  (Id., at 742, n. 1)).  In any event, the Court concluded that "the 7.998 grams of crack that the police discovered [in the instant case] is insufficient as a matter of law to infer intent."  (Id.)  The Court also rejected the Government's contention that mere possession of a gun was sufficient to convert the infinitesimal quantity of drugs involved in this case into a crime of distribution.  "[T]he gun is no more probative of distribution of drugs than of other, non-nefarious purposes for which one may keep a gun."  (Id., at 744).

The Court then struggled with what to do with the defendant who had admitted possessing the crack.  Citing 28 U.S.C. § 2106, it concluded that "[i]n certain limited circumstances, we may exercise our power . . . and reduce a conviction to a lesser included offense."  (Id., at 744).  To do so, the Court determined that the following circumstances must exist: "It must be clear (1) that the evidence adduced at trial fails to support one or more of the elements of the crime of which the appellant was convicted, (2) that such evidence sufficiently sustains all the elements of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will result to the accused."  (Id., 745). The Court then mused: "We pause, however, to question whether we can direct the entry of judgment on a lesser included offense when the district court did not instruct the jury that it could find the defendant guilty of that lesser included offense."  (Id.).  In response to its own hypothetical question, the Court concluded that "the lack of instruction on the lesser included offense was not unduly prejudicial to [the defendant in this case, particularly] as she has conceded the element of possession."  (Id., at 746).

The defendant in this case purchased 4½ ounces of crack from an informant who had recently been arrested for drug distribution and who was secretly cooperating with the Government in an effort to reduce his own sentence.  After he was arrested, the defendant pled guilty to the charge of possession of 50 grams or more of crack, in violation of 21 U.S.C. § 841(b)(1)(A)(iii) - a crime that mandates a minimum sentence of 10 years.  However, the defendant asked for a downward departure on the grounds of "sentencing entrapment" or "sentencing manipulation."  The district court (Judge McDade) agreed that something was amiss.  He stated "it's not right for the government to structure this deal to make it crack and the enhanced penalties, when they knew that the defendant was interested in powdered cocaine]."  (Id., at 951).  Accordingly, he reduced the sentence to 30 months - and the Government quickly appealed.
The Seventh Circuit reversed.  It ruled that this was clearly not a case of entrapment because none of the elements of entrapment had been shown; and it pointed to the district court's statement that "the defendant knew he was buying crack cocaine."  Rather, it described this sentencing as one in which the district court asserted "an equitable power to sentence a defendant as if the defendant had committed the crime he preferred to commit, rather than the crime he actually committed"; and it concluded that "as if" sentencing is not authorized by Federal law.

The Court did grudgingly concede that this might be called a case of "sentencing manipulation."  However, pointing to its decision in U.S. v. Garcia, 79 F.3d 74 (7th Cir. 1996), the Court flatly ruled that sentencing manipulation "does not justify a sentence different from the one prescribed by the Guidelines."  Thus, in the inter-Circuit conflict, the Seventh Circuit continues to side with rulings from the 5th, 6th, 10th and 11th Circuits which have either denied the very existence of sentencing entrapment or ruled that it can never be a basis for a downward departure versus rulings from the 1st, 8th and 9th Circuits which have held that sentencing entrapment does exist and can, under appropriate circumstances, justify a downward departure.

In the December 1, 1997 issue of Punch and Jurists, we reported on a case, U.S. v. Meza, 127 F.3d 545 (7th Cir. 1997), which we noted was the first published case we had seen which held that unwarranted sentencing disparities among co-defendants might constitute a proper basis for a downward departure under the Guidelines.  We also noted that, to date, most courts have rejected the concept that significant sentencing disparities can ever justify a downward departure.  As repeated in this case, the nonsensical justification for that position is that the purpose of the guidelines is "to eliminate unwarranted disparities [in sentencing] nationwide . . . not to eliminate disparity between co-defendants."  (Id., at 1143).
 
In this case two defendants were charged with the same drug crime; one pled guilty to a lesser charge and his sentence was 30 months in prison.  Geneva Gallegos however went to trial where she was convicted.  To punish her for taking the case to trial, the Government sought a far more severe sentence.  The district court  however had other ideas.  Citing five separate grounds for a downward departure, the ever fair-mined Judge Vazquez imposed a sentence of 34 months.  Among her reasons were "an inexplicable disparity of sentences" between Gallegos and her co-defendant, extraordinary family circumstances, and a finding that Gallegos was "under significant influence, domination and manipulation" of still another co-defendant.

The Government appealed; and the Tenth Circuit promptly vacated the sentence, rejecting each of the reasons propounded by Judge Vazquez.  On the sentencing disparity issue, the Court ruled that a departure is never justified "when sentences are dissimilar because of a plea bargain."  (Id., at 1144).

On the coercion issue, the Court acknowledged that U.S.S.G. § 5K2.12 permits a downward departure if the defendant committed the offense "because of serious coercion . . . or duress", but it ruled that to justify such a departure "the alleged coercion must have caused the defendant to commit the criminal act."  (Id., at 1145).  Finding no "causal connection" between the alleged coercion and the crime at the time it was committed, the Court rejected that basis for a departure.  Finally, the Court rejected any departure based on extraordinary family circumstances under U.S.S.G. § 5H1.6.  While it agreed that it was "regrettable" that the defendant was the sole support of her six-year old son and partial support for her parents, it held that those circumstances were not sufficient to remove the case from the heartland contemplated by the Guidelines.

Last year, the Supreme Court surprised many courts and prosecutors by ruling, in Old Chief v. U.S., 136 L.Ed.2d 574 (1997), that a district court abuses its discretion when it rejects a defendant's offer to stipulate his status as a felon (in a prosecution for possession of a gun by a felon under 18 U.S.C. § 922(g)), and instead admits the full record of the prior conviction.  The Supreme Court firmly stated that "there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant [in part because such evidence] would be arresting enough to lure a juror into a sequence of bad character reasoning."  (Old Chief, id., at 591). 

Dismayed by the thought that it won't have the chance to recount all the gory details of the prior conviction, the Government has struggled mightily to diminish the impact of Old Chief; and to date both the 8th and the 10th Circuits have obliged by concluding that Old Chief does not compel reversal if the court concludes that the admission of the prejudicial evidence was only "harmless error."   Here, using that cure-all remedy that swallows many sins, the Eighth Circuit again confirms that "only if the jury may have been substantially swayed by improperly admitted evidence must we reverse [the] conviction."  Then, using its 20-20 hindsight vision, it concluded that the jury in this case (which it never met) had not considered the evidence of the prior crime in an improper light.  Thus, it divined with absolute certainty that any error that had occurred in this case was harmless, and that the rule announced in Old Chief was simply inapplicable - in this case and probably many more to come.

As this case shows, it just doesn't pay to mess around with Mother Nature - or her cousin the IRS.  The defendant was a "well known" tax protestor.  He filed an income tax return in which he stated that in 1989 he earned over $7.5 billion and that he had paid $7.5 billion in withholding taxes; and he indicated a refund due of almost $5.5 billion.  He was indicted and convicted on six counts of willfully filing false income tax returns in violation of 26 U.S.C. § 7206(1), and on one count of corruptly obstructing and impeding the administration of the internal revenue laws in violation of 26 U.S.C. § 7212(a).  On appeal, he argued that the district court (Judge Daniel) had erred by refusing to instruct the jury that specific intent is required for a conviction under § 7212(a) and, alternatively, that the evidence was insufficient to support his conviction under that section.

Because of the importance of the tax laws to the Government, the Court, not surprisingly, quickly dismissed the failure to instruct claim.  Citing Cheek v. U.S., 498 U.S. 192 (1991), the Court did agree that § 7206(1) is a "specific intent" crime that requires proof of a mens rea that the defendant engaged in a "voluntary, intentional violation of a known legal duty."  However, it dismissed the need to give any specific intent instructions on the grounds that "instructing in terms of ‘specific intent' has been disfavored by the courts because of the confusing and ambiguous nature of such an instruction."  (Id., at 1096).

The defendant's better argument was on the sufficiency of the evidence needed to convict.  As the Court noted, in order to establish a violation of § 7206(1), the Government had to prove that the defendant "did not believe that the return which he signed under penalty of perjury was true and correct as to every material matter, and . . . that [the defendant] acted willfully."  (Id., at 1097).  The defendant, in turn, argued that he had only intended to annoy the Government and that his tax return was "objectively incapable of influencing the IRS [due to his] well-known tax protestor status and the preposterous monetary figures provided."  Not in a joking mood, the Court once again gave short shrift to the defendant's argument.  "The large amounts involved do not reduce the forms to scraps of blank paper.  If anything, the reverse is the case.  They cry out for attention and it would be blameworthy administration to ignore them."  (Id., at 1098).  It will be interesting to see whether, at sentencing, the defendant's "tax loss" will be the $7.5 billion - which just might break the record for America's longest sentence - especially since the Guidelines' tax loss table contained in U.S.S.G. § 2T4.1 tops out with a 26 point enhancement at "only" $80 million.

This is an interesting case which suggests that the "Battered Woman's Syndrome" defense is beginning to be accepted more and more as a viable defense in many Federal cases.  Here, the defendant failed to give timely notice, under Fed.R.CrimP. 12.2, of her desire to produce expert testimony to show that she suffered from Battered Woman's Syndrome and thus that she did not and could not have had the requisite mental intent or knowledge to carry out her charged scheme to commit mail fraud, wire fraud and securities fraud.  The Court agreed that because she had failed to give such notice in a timely manner, the district court (Judge Tidwell) had properly excluded such testimony under Fed.R.Crim.P. 12.2(d).

However, the district court had also precluded the admission of lay testimony of the abusive nature of her relationship with another co-defendant with whom she was romantically involved.  On that issue, the Court found an abuse of discretion and reversible error.  In this case, the Government's trial strategy was to establish an inference of confidence - with a complete exchange of information - between the defendant and her companion.  The Court reasoned that such a tactic made it even more important for the defendant to be able to present evidence that the verbal and emotional abuse she suffered from her companion tended to show that the companion wanted her to have no opinions of her own and to trust him blindly.  Because such evidence was critical, it affected her right to a fair trial.  "A defendant's right to a fair trial is violated when the evidence excluded is material in the sense of a crucial, critical, highly significant factor."  (Id., at 1212).  The conviction was vacated and a new trial ordered.

Although the Government never has any problems defining its own versions of the truth, it surely doesn't like it when others spread some critical version of the truth.  In this case, a prisoner at the Airway Heights Correction Center ("AHCC") in the State of Washington protested that his First and Fourteenth Amendment rights were being violated by a prison policy that prevented him from receiving his subscription to Prison Legal News ("PLN"), a monthly newsletter written and distributed nationally by two prisoners from another prison in the State of Washington.  That newsletter rankles a lot of prison officials; and it is periodically banned in many prisons (as is Punch and Jurists, which is now banned as "unacceptable mail" in three Federal prisons.  Because we have never been told why our publication is unacceptable - other than it must rankle some unknown prison mail room clerks - we intend to contest this violation of our First Amendment rights.)

PLN is distributed via bulk mail; and that gave David Buss, the "mail room sergeant", a lot of leeway.  First, he banned bulk mail that was sent without a notation bearing the endorsement "address correction requested."  That wasn't enough to stop the distribution of PLN because its mail carries the endorsement "address correction requested."  So, twice during the pendency of this lawsuit, AHCC changed its definitions of bulk mail - always artfully camouflaged so it could swindle the courts into believing that it had not picked on PLN and violated the First Amendment.

A stern Judge Quackenbush rejected the protestations of innocence for what they were - a lot of malarkey.  In fact, he called to mind Lewis Carroll's classic advice on the construction of language: "When I use a word," Humpty Dumpty said in a rather scornful tone, "it means just what I chose it to mean."  Through the Looking Glass.  Turning to the legality of the AHCC's moving target of regulations, he quoted extensively from Procunier v. Martinez, 416 U.S. 396 (1974), which held that restrictions on prison mail must be accompanied by procedural protections; and Turner v. Safley, 482 U.S. 78 (1987), which held that prison regulations must be "reasonably related to legitimate penological interests."  He concluded that PLN did not threaten the security, order or discipline at AHCC and that the mail room regulations had no connection to any legitimate neutral purpose.  Therefore, he granted a permanent injunction barring AHCC (and its distinguished mail room sergeant) from interfering with the delivery of PLN to the prisoners and he ordered a hearing to fix damages and settle on attorney's fees and costs, as permitted under 42 U.S.C. § 1988(b).

 "Given the tendency of modern criminal legislation to divide the phases of a criminal transaction into numerous separate crimes, the opportunities for multiple prosecutions for an essentially unitary criminal episode are frightening.  And given our tradition of virtually unreviewable prosecutorial discretion concerning the initiation and scope of a criminal prosecution, the potentialities for abuse inherent in the 'same evidence' test are simply intolerable." Ashe v. Swenson, 397 U.S. 436, 452 (1970)  (Brennan, J., concurring).
 

Cases in the Federal Reporter:              This week:     46      Year to date:         2393
Cases in the Federal Supplement:         This week:     23       Year to date:        1211