A Weekly Summary Of Snippets of Justice From the Federal Courts

Highlights of this Issue:

• The Stewart case from the D.C. Circuit is another one of those remarkable conspiracy cases that shows the broad reach of the conspiracy statutes. In this case, even though the Government itself and its chief witness agreed that it was "unlikely" that the defendant had been present at or participated in some prior drug transactions, the Court still found that his conviction for involvement in those prior transactions would be upheld because of its pragmatic holding that "nothing required the jury to accept the expert's testimony or the prosecutor's opinion."
   
   
• The Mockaitis case involves a suit brought by a Catholic priest and an Archbishop against a California District Attorney seeking relief from his possession or use of a tape recording of a defendant's confession given to the priest during the Sacrament of Penance. The Ninth Circuit broadly endorsed the clergy-communicant privilege and held that the D.A.'s actions violated the Constitution, the Religious Freedom Restoration Act and the priest's civil rights.
   
   
• In the Porotsky case, the Second Circuit sharply rebuked Judge Wexler for refusing to follow its earlier mandate that travel restrictions on a probationer are improper unless they are reasonably related to the twin aims of probation, namely the rehabilitation of the defendant and the protection of the public.
   
   
• The Winters and Kalb cases, from the Fifth and Eighth Circuits, respectively, explore in detail the concept of adjustments to sentences under the Sentencing Guidelines based on a single act of aberrant behavior; and the Kalb case concludes, over the strong dissent of Judge Bright, that, except in certain limited cases, such departures fall in the "unmentioned" category of factors specified by the Supreme Court in its landmark case Koon v. United States, 135 L.Ed.2d 392 (1996) and thus requires a higher degree of proof to enable the use of that departure.
   
   
• The Angotti case from the Ninth Circuit raises the oft-overlooked issue of venue; and its holding produces a result that Judge Norris concludes will permit the Government to prosecute a defendant in a false bank loan application case in any jurisdiction where the loan application happens to be sent for approval, regardless of whether the applicant has any idea where the bank will send it.
   
   
• In the Steele case, the Eleventh Circuit vacated a conviction obtained against a pharmacist for the illegal dispensing of drugs because, even though the indictment tracked the statute in question, it failed to recite one of the essential elements of the crime as established by prior case law. 
   

United States v. Stewart, 104 F.3d 1377 (D.C.Cir. 1997) (Judge Rogers)

Here's one of those fantastical conspiracy cases that calls to mind the words of Judge Friendly who once referred to the crime of criminal conspiracy as "that elastic, sprawling and pervasive offense whose development exemplifies . . . the tendency of a principle to expand beyond the limit of its logic - and perhaps beyond." United States v. Borelli, 336 F.2d 376, 380 (2nd Cir. 1964). Here, the defendant was convicted of one count of distribution of crack and two counts of a conspiracy to distribute crack on six other occasions at which he was not present. He challenged the conspiracy convictions on the ground that no reasonable jury could have found that he was involved in more than a single buyer-seller transaction. He pointed to the fact that both the Government's expert witness and the prosecutor told the jury that it was "unlikely" that he had been involved in the six separate transactions. However, as we all know, selling crack is such a bad crime that sometimes even the courts have to go out of their way to save America. So the court affirmed the conviction, with the rather startling observation that "nothing required the jury to accept the expert's testimony or the prosecutor's opinion." (Id, 1381). After all, there was some circumstantial evidence that pointed to the defendant and it was not unreasonable for the jury to find that the defendant "was linked to the greater conspiracy." As further proof that this defendant was doomed before he started his appeal, the Court also rejected his claim that the Government had failed to meet its burden of proof by showing that the "chain of custody" of the drug evidence had remained intact. Specifically he pointed to an unexplained twelve-day delay between placement of the drugs in a police vault and their retrieval at a DEA testing laboratory. Once again, the court stretched a wee bit. This time it said that, due to "the presumption in favor of the integrity of evidence routinely handled by government officials," the Government's burden of proof to show a proper chain of custody "only requires it to demonstrate that, 'as a matter of reasonable probability,' possibilities of misidentification and adulteration have been eliminated." (Id., at 1383). Somehow, lost in the shuffle, was any discussion of the concept that, under our Constitution, criminal convictions require proof beyond a reasonable doubt.

Over the strong dissent of Judge Krupansky, the Sixth Circuit affirmed a lower court's decision to dismiss an indictment that charged the defendants with transmitting e-mail messages over the Internet that were alleged to be "communications containing a threat" to kidnap or injure another person in violation of 18 U.S.C. § 875(c). The defendants used a computer to exchange fictional, sadistic and misogynistic stories that involved the abduction, rape, torture, mutilation, and murder of women and young girls. One of the stories posted (which Judge Krupansky included in his dissent in its lurid entirety) described a series of morbid and perverted acts on a young woman who shared the name of one of the defendants' classmates at the University of Michigan. While the majority found the communications offensive, it held that they did not constitute any real "threat". It ruled that, to constitute "a communication containing a threat" under § 875(c), a communication must be such that a reasonable person (1) would take the statements in question as a serious expression of an intent to inflict bodily harm (the "mens rea"), and (2) would perceive such statements as being communicated to effect some change or achieve some goal through intimidation (the "actus rea"). Judge Krupansky was deeply offended by the dismissal of the indictment. He concluded that the fictional stories had a shattering effect on the young woman and had caused her to suffer great fear, anxiety and intimidation.

Mockaitis v. Harcleroad, 104 F.3d 1522 (9th Cir. 1997) (Judge Noonan)

This is an interesting case that involves an action brought by a Catholic priest and an Archbishop against various defendants challenging a district attorney's decision to tape a suspect's confession while the priest was administering the Sacrament of Penance in jail. The plaintiffs sought destruction of the tape and its transcript. Although the district court found that the plaintiffs had good reason to be "justifiably outraged" by the D.A.'s conduct, it concluded that it was precluded from interfering with the ongoing prosecution by the state of a criminal case, under the doctrine established by the Supreme Court in Younger v. Harris, 401 U.S. 37 (1971). The Ninth Circuit disagreed and reversed. It held that the act of bugging the confession substantially burdened the priest's exercise of religion in violation of the provisions of the Religious Freedom Restoration Act (42 U.S.C. § 2000bb(a)) as well as the priest's civil rights and his right to a reasonable expectation of privacy under the Fourth Amendment. It observed that all fifty states have enacted statutes "granting some form of testimonial privilege to clergy-communicant communications"; and that the priest-penitent privilege is "rooted in the imperative need for confidence and trust." Finally, in light of the D.A.'s practice of taping 90% of all conversations in jail, it ruled that an injunction against the D.A. was necessary to prevent the Sacrament of Penance from becoming "odious in jails by the intrusion of law enforcement officers."

After the defendant in this case was convicted of the usual diet of bank fraud, conspiracy and money laundering crimes, he appealed both his conviction and his 24-year sentence. First, he protested that the trial court had committed reversible error by admitting into evidence incriminating extrajudicial statements in violation of the rule established by the Supreme Court in Bruton v. U.S., 391 U.S. 123 (1968). At issue was the admission of testimony of an expert witness who had been called by a lawyer co-defendant to testify that he (the lawyer) had previously consulted with the expert and, during those consultations, had allegedly told the expert that the other defendants had effectively admitted the crimes in question. The trial court admitted that testimony but instructed the jury that it was relevant only as to the lawyer. In Bruton, the Supreme Court held that, because of the substantial risk that the jury, despite instructions to the contrary, will look to a codefendant's incriminating extrajudicial statement in determining the defendant's guilt, admission of a codefendant's statement in a joint trial violates the defendant's right of cross-examination under the Confrontation Clause of the Sixth Amendment. The First Circuit ruled that any error that occurred was harmless because the testimony in question, while incriminating, fell "far outside the pale of the 'powerfully incriminating' evidence that produces Bruton error" (Id., at 33); and it affirmed the conviction. The defendant also raised a sentencing issue. Despite the prosecution's assertion that Guideline's sentence "adequately addressed the enormity of the offense here", the trial court sua sponte and without any advance notice to the defendant departed upward by two years from the maximum sentence allowed under the Guidelines. On appeal, the First Circuit ruled that the upward departure was impermissible as a matter of law and it reduced the sentence by two years. It noted that under Burns v. U.S., 501 U.S. 129 (1991), the Supreme Court had ruled that before a district court can depart upward on a ground not identified as a ground for upward departure, the district court must give the parties reasonable notice that it is contemplating such a ruling.

This is a rare case that shows how persistence sometimes pays off. Here, a drug conviction was vacated because the First Circuit felt that the trial judge had not properly explained the meaning of improper inducement for purposes of the defendant's entrapment defense. The defendant claimed that he was pressured into buying some cocaine for an informant/friend (with whom he regularly smoked crack) on the false grounds that unless she got some money fast she would lose her children. Defense counsel argued that such an appeal to sympathy constituted an improper inducement. Citing a list of examples drawn from U.S. v. Gendron, 18 F.3d 955 (1st Cir. 1995) and U.S. v. Gifford, 17 F.3d 462 (1st Cir. 1994), counsel asked the trial judge to give the jury some examples of improper inducement based on an appeal to sympathy. The trial judge declined and focused instead on the usual factors of coercion, intimidation and threats. The First Circuit held that the instructions given were not adequate, especially in light of its previous ruling in Gifford that a government agent's "arm-twisting" can indeed constitute improper inducement. The Court also observed that it is well established that "a defendant is entitled to an instruction on his theory of defense if sufficient evidence is produced at trial to support the defense and the proposed instruction correctly describes the applicable law." (Id., at 39). Under the facts of this case, the Court concluded that: "By omitting any 'sympathy' examples [from the jury's instructions] the trial court may well have left the jury with the mistaken impression that coercion is a necessary element of entrapment and, in this case, such a misunderstanding could well have affected the outcome. . . . Since the court's charge failed to otherwise adequately inform the jury of Montanez' theory of defense, the convictions cannot stand." (Id., at 39-40).

United States v. Porotsky, 105 F.3d 69 (2nd Cir. 1997) (Per Curiam)

In a tersely worded decision, the Second Circuit took Judge Wexler to task for refusing to adhere to its earlier ruling in this case, reported at U.S. v. Friedberg, 78 F.3d 94 (2nd Cir. 1996). For some time, the appellant had been seeking relief from Judge Wexler's order denying him permission to travel to Russia during his term of probation. Without any supporting authority, Judge Wexler simply agreed with the Government's assertion that the appellant posed "an enhanced risk of flight." In its earlier decision, the Second Circuit quite emphatically told Judge Wexler that his "flight risk" contention was an improper reason to deny a probationer the right to travel. If fact, the Court ruled, a restriction on a probationer's right to travel may be imposed only where such condition is "reasonably related" to the twin aims of probation: the rehabilitation of the defendant and the protection of the public. Thus, it remanded the case back to him with instructions to make appropriate findings whether the denial of appellant's travel request would be reasonably related to those goals. The Government didn't like that decision and, even though the probation office had no objection to the appellant's travel plans, the prosecutor still balked at giving the appellant anything. Never one to disagree with the prosecutor, Judge Wexler again denied the appellant his right to travel abroad. Without giving any reasons, he simply rubber-stamped the prosecutions assertion that such travel "would impede the overall focus of supervision, that being rehabilitation and protection of the community." The throughly peeved Court noted that counsel for the Government had failed "to offer a single convincing reason why the travel restrictions would serve either of these two goals of probation" and it caustically concluded that "the mere recitation of the twin aims of probation does not constitute an 'appropriate finding' on which to base a denial of a travel request." (Id., at 72). To make sure that Judge Wexler would not play any more games, the Second Circuit concluded that the proposed travel restrictions were not reasonably related to the goals of probation and it remanded the case back to Judge Wexler with plain instructions that he grant the travel request.

This is a case that reeks with intrigue and an elaborately staged (albeit somewhat preposterous) sting operation that involved Government agents posing as hit men and the participation of Federal agents in a controlled breakout from Rikers Island. Even though the Court found that the Government's participation in the defendant's plan was "extensive", it ruled that the Government's conduct was not so outrageous that it warranted reversal of the conviction and 30-year sentence that was imposed. But perhaps its most disturbing aspect of this case is its confirmation that the Government will take totally inconsistent positions whenever convenient to its purposes. In its New York case against the defendant, one Lily Schmidt, the Government insisted that she was fully competent to stand trial. After her conviction and 30-year sentence, the Government alleged, in a later proceeding held in Texas, that she was suffering from a serious mental disease.

For nearly a decade Leonard Pelullo has fought a lonely battle trying to disprove the constantly refiled charges that he engaged in a series of illegal schemes with the dreaded Mafia in 1986 to defraud a public company. Already this besieged defendant has gone through four earlier trials. Three times the convictions that were obtained were reversed on appeal and one trial ended in a hung jury. At issue in this appeal was a claim that the Government had failed to turn over to Pelullo three important pieces of impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). As rare as it is to win a Brady claim, the Court had no difficulty concluding that the Government had "inexplicably" failed to abide by its obligations under Brady, and that the evidence in question was both material and favorable. Thus it reversed one of the older convictions that was still pending. The second claim was more intriguing. The defendant argued that the convictions obtained at the fourth trial should also be dismissed because the district court had erred by allowing the Government to introduce his testimony from the first trial during its case-in-chief at that last trial. Citing Harrison v. U.S., 392 U.S. 219 (1968), Pelullo argued that he had been forced to take the stand in the first trial due solely to the Government's failure to abide by its obligations under Brady. In other words, because he had no other way to impeach the Government witness, he was compelled to take the stand and rebut that testimony; and that his testimony at the first trial constituted "the inadmissible fruit of the poisonous tree". Once again the Third Circuit agreed. Although it noted that, as a general rule, a defendant's testimony at a former trial is admissible in subsequent trials, it agreed that, under Harrison, the testimony at the first trial was tainted. Thus it again reversed the convictions and ordered still a fifth trial (assuming Pelullo still has the strength and the money to fight back).

This is a case that should scare a lot of people who have always felt free to invite friends, relatives and neighbors into their homes. Acting on a tip from an informant, the police raided Christine Jackson's home and found drugs secreted in an old ice-chest, which she had discarded, in a room occupied by her younger brother. Jackson was convicted of constructive possession of drugs and sentenced to a term of imprisonment of four to eight years. On her habeas appeal, the Third Circuit affirmed the conviction. Judge Becker, who vociferously dissented, described his feelings as follows: "The linchpin of the majority's opinion is its conclusion that Jackson, because she was the lessee of the apartment, had access to and control over all areas of the apartment, including the rear bedroom used by her brother, and hence of the ice chest and the cocaine. In my view, this conclusion is supported by neither the law nor the facts. . . . [T]here is no evidence that she was ever in the room, much less knew what its contents were. None of Jackson's possessions were found in her brother's bedroom, nor were her fingerprints detected on any of the drugs or other items seized." (Id., at 151). Judge Becker concluded by stating that the term "constructive possession" has a precise legal meaning. "To constructively possess a controlled substance one must have conscious dominion over it, and intend to exercise that dominion or control." (Id., at 150) (Emphasis added.). The lesson: We had better start being prepared to search the pockets of all of our guests to avoid being charged with constructive possession of any illegal contraband they might possess - since there is no way to escape the conclusion that one has dominion and control over his own home!

United States v. Winters, 105 F.3d 200 (5th Cir. 1997) (Judge Furgeson)
United States v. Kalb, 105 F.3d 426 (8th Cir. 1997) (Judge Loken)

When, if ever, is a sentence reduction warranted because the defendant committed "a single act of aberrant behavior"? Both of these cases delve into that thorny question; and the Kalb case, in particular, puts that question into a totally new perspective. The Winters case involved two prison guards from the Mississippi State Penitentiary who were charged with a number of Federal crimes arising out of the malicious and sadistic beating of a prisoner who had escaped. One of the guards was convicted of deprivation of rights under color of law in violation of 18 U.S.C. § 242, use of a firearm during and in relation to a crime in violation of 18 U.S.C. § 924(c), and obstruction of justice in violation of 18 U.S.C. § 1503. Before any sentence reduction, that guard faced a Guidelines' sentence of 108 to 135 months in jail plus a mandatory consecutive sentence of 60 months for the gun charge (a total of 14 to 16 years in prison). The second guard was convicted of influencing and impeding the due administration of justice in violation of 18 U.S.C. § 1503; and before any sentence reduction he faced a Guidelines' sentence of 37 to 48 months in prison. Judge Sentor cut both sentences dramatically. Relying principally on the finding that the senseless beating of the prisoner constituted "a single act of aberrant behavior", the good judge sentenced the first guard to six years in prison; and he rewarded the second guard with a sentence of probation. Even the Fifth Circuit gagged at that outrageous display of sympathy for bestial prison brutality and it vacated both sentences. It expressed indignation (and a rather naive sense of surprise) that there appeared to exist a "code of culture" that "condoned if not encouraged" the brutalizing of recaptured prisoners; and it rejected the downward departures as totally inappropriate. In a series of rulings it held that a sentence reduction based on "a single act of aberrant behavior" was improper in this case in part because aberrant behavior requires more than an act which is merely a first offense or "out of character" for the defendant. It noted that the guard who was convicted of the beatings had attempted to cover up his deeds by attempting to coerce other witnesses into altering their testimony; and concluded that such a "cover-up" denied the availability of an aberrant behavior departure. It also rejected any attempt to view aberrant behavior in the context of the history of the defendant's prior lawful behavior, or his support of his family, or his being under the influence of some institutional influence or accepted code of conduct. In the case of the second defendant the Fifth Circuit also rejected any downward departure based on that defendant's physical or mental condition (he allegedly suffered from a chronic inflammation of multiple organs that required no ongoing type of medical treatment); or his decorated military service in Vietnam; or his allegedly distinguished service at the prison; and it particularly rejected the trial judge's conclusion that the punishment under the Guidelines did not fit the crime. The case must be read in its entirety to appreciate the appalling deference paid by many judges to almost anything done by prison guards.

In the Kalb case, the Eighth Circuit took a rather novel approach to the issue of "aberrant behavior." Citing extensively from the Supreme Court's recent decision in Koon v. U.S., 135 L.Ed.2d 392 (1996), and its compartmentalization of acceptable "factors" into four categories, namely forbidden, encouraged, discouraged and unmentioned, it concluded that departures for aberrant behavior are "encouraged" only when addressing sentences of probation or split sentences, i.e., sentences at the lowest range of the Guidelines. Thus, it determined that in all other cases, and particularly in cases of violent crimes, aberrant behavior is an "unmentioned" factor within the framework of the Koon analysis, and thus requires far more to take the case out of the Guidelines' "heartland." Judge Bright, a frequent and vocal critic of the Guidelines (see the Quote of the Week below), strongly disagreed. He argued that, if nothing else, Koon "sends a signal to appellate courts to extend a greater measure of deference to district courts' discretion in sentencing"; and he disagreed with the majority's conclusion that aberrant behavior is an "encouraged" factor only when dealing with sentences at the low end of the Guidelines. Combined, both Winters and Kalb present some of the most detailed discussions that we have seen on the concept of aberrant behavior.

This case adds a new twist to the fine art of parsing the commonly-applied rule that a co-conspirator is responsible for the acts of another member of the conspiracy. Here the defendant pleaded guilty to conspiracy to possess drugs with intent to distribute and to using and carrying a firearm in relation to a drug-trafficking crime in violation of 18 U.S.C. § 824(c). However, the gun in question was carried by one of his co-conspirators. After the Supreme Court ruled, in Bailey v. U.S., 133 L.Ed.2d 472 (1995), that a conviction for the "use" of a firearm under § 924(c) requires some showing of an active employment of the firearm, the defendant appealed his gun conviction, arguing that there was no longer any factual basis for that conviction since it was based on the conduct of his co-conspirators - not himself. The Court rejected that claim and noted that "even after Bailey, a co-conspirator may be held responsible under § 924(c) for the acts that another member of the conspiracy took in pursuit of their unlawful scheme." (Id. at 221). The defendant also objected to the district court's refusal to grant him the so-called "safety-valve" sentence reduction provided for in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 on the same grounds. The defendant argued that in order to be precluded from the benefit § 5C1.2, he must have actually possessed a firearm during the conspiracy. This time the Court agreed with him. The Court noted that under the Commentary to § 5C1.2(2) the use of the term "defendant" incorporates the relevant conduct language contained in § 1B1.3(a)(1)(A) and thus limits the accountability of the defendant "to his own conduct and conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused". Of particular import, the Court noted that, for purposes of the safety-valve reduction, the definition of the term "defendant" omits the broader language contained in § 1B1.3(a)(1)(B) which provides that "relevant conduct" encompasses acts and omissions undertaken in a "jointly undertaken criminal activity", e.g. a conspiracy. On that basis, the Court concluded that "a defendant's eligibility for the safety valve . . . allows for the consideration of only the defendant's conduct, not the conduct of his co-conspirators." (Id., at 222). That conclusion raises an interesting question. If the defendant is not responsible for the activities of his co-conspirators by definition, why then do so many cases hold that a defendant must "tell all" about the activities of his co-conspirators in order to qualify for a safety valve sentence reduction?

United States v. Angotti, 105 F.3d 539 (9th Cir. 1997) (Judge Schroeder)

Although the concept of "venue" is deeply enshrined in Article III, § 2 of the Constitution, as well as in 18 U.S.C. § 3232 and Rule 18 of the Fed.R.Crim.P., it is not a topic that is litigated much these days. Yet it was in this case, and the dissent of Judge Norris raises some interesting questions. Here the defendant was convicted of six counts arising out of his fraudulent conduct in obtaining a loan. He filed an application for a condominium loan in the Northern District of California, but the bank's headquarters were in the Central District of California and he was prosecuted in that District. He appealed on the ground that venue in the Central District of California was improper. Although the Ninth Circuit agreed that determining where a crime was committed is often "a sticky question", it rejected the appeal. It noted that under the provisions of 18 U.S.C. § 3227(a) offenses against the United States may be prosecuted in any district where they are begun, continued or completed. But the decision goes further because it also held that a continuing offense may be prosecuted "in the district where the false statement is ultimately received for final decision making." (Id., at 542). Judge Norris dissented. He wrote that the majority's ruling has no support "in case law or logic" and that under its ruling "a person accused of making false statements in a loan application filed with a bank in San Francisco may be prosecuted in Los Angeles, or New York, or Chicago, or any other city where the loan application happens to be sent for approval, regardless whether the applicant has any idea where the bank will send it." (Id., at 546).

United States v. Steele, 105 F.3d 603 (11th Cir. 1997) (Judge Birch)

[Editor's Note:  This decision was subsequently superseded by a slightly modified decision reported at U.S. v. Steele, 117 F. 3d 1231 (11th Cir. 1997)]

Quote of the Week - One of those hypothetical questions that will never be answered!

"Do draconian sentences for first time offenders demanded by the [law] make any sense in the face of evidence that a prisoner could be rehabilitated rather than virtually destroyed by lengthy incarceration?" United States v. Appelby, 975 F.2d 1384, 1388 (8th Cir. 1992) (Bright, J., concurring).