Vol. 5, No. 4         As Published in the Advance Sheets on January 26, 1998          Copyright © 1998

Highlights of this Issue:

Leading Case 

Civil Rights-Immunity Cases  

U.S.S.G and Sentencing Issues  

Sadly-Comic Issues  

United States v. Hebert, 131 F.3d 524 (5th Cir. 1997) (Per Curiam)

This week’s dilly comes from Texas where two dutiful judges attempted, through sophisticated words and sophistical reasoning, to justify a Hobbs Act prison sentence of 2,582 months (yes, that’s 215 years!) on an African-American whose total take in seven robberies was $17,600.  As Judge DeMoss wrote in his stirring dissent, it really wasn’t very difficult to justify such a “humongous” sentence in these days.  After all, he observed, other courts have also approved equally preposterous sentences.  He cited a bunch of examples.  One man who netted less than $500 in six robberies got 36 years.  Another, who stole $7,000 in four robberies, got 71 years.  Other defendants in similar cases he cited got sentences of 62, 85, 89 and 95 years (id., at 526, n.2).  But of course, as this case proves, such “records” only become targets for the next judge.  After all, any good law-and-order judge wants to be the holder of the record for the largest sentence ever imposed - even if he knows that some new judge will quickly shatter the existing record as soon as he has a new world record in his sights - particularly one that has been approved by some appellate court - as happened here.

The defendant in this case was prosecuted under both the Hobbs Act (18 U.S.C. § 1951) and under eleven separate counts of using a weapon during a crime of violence, in violation of 18 U.S.C. § 924(c). Due to the nature of § 924(c), as interpreted by the Supreme Court in Deal v. U.S., 508 U.S. 129 (1993), the defendant received a sentence enhancement of five years imprisonment on the first of the gun counts, and successive, consecutive sentences of twenty years imprisonment for each of the remaining ten gun convictions - which was the way that the sentence got so bloated.  However, to bring § 924(c) into play, the Government needed a predicate Federal felony - and that’s where the Hobbs Act came in.

The Hobbs Act was passed by Congress some 53 years ago to address a very particular problem.  As Judge DeMoss explained “Members of labor unions were hijacking produce trucks carrying produce into union states for the purpose of requiring that the non-union driver either pay a ‘tribute’ in the form of a union wage or allow a union driver to transport the produce into the union dominated state.  Thus, the Hobbs Act was passed to deal with robbery or extortion directed at goods moving in commerce.”  (Id., at 527) (Emphasis in original).  The language of the Act is quite precise: “Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion . . . shall be . . . imprisoned not more than twenty years . . . .”

The majority bought the Government’s argument that all that was required for a valid conviction under the Hobbs Act was some de minimis effect on interstate commerce through a depletion of assets that could otherwise be used to purchase out-of-state goods.  Thus, it focused on the victims’ “potential as purchasers of goods in the stream of interstate commerce.”  For example, the Court observed that the astute manager of a Hardee’s restaurant testified that the $117 taken from his store would have been used to buy supplies and goods from out of state; the well-coached manager of two Popeye’s restaurants assured the Court that the $500 robbed from his two stores would have been used to buy chickens from Arkansas and other supplies from Louisiana; and the helpful owner of a local liquor store testified that 70 to 80 percent of the liquor it sells comes from out of state.

Judge DeMoss commented: “I have not been able to find anything in the U.S. Criminal Code which persuades me that the U.S. Congress has decided to make every armed robbery that occurs in the United States a federal offense and to appropriate the funds required to investigate, prosecute, determine the guilt or innocence, sentence and incarcerate the greatly expanded numbers of federal defendants which would result from that policy decision.”  (Id., at 527).  Methodically, he listed the erroneous assumptions relied upon by the majority.  The verbs used in the statute - “obstructs, delays or affects” - are each in the present active tense.  (Id., at 528)  The Supreme Court has never held that the “depletion of assets theory” asserted by the Government was a proper way to measure an effect on interstate commerce. (Id.). That theory “permits hypothetical, conjectural and conclusionary testimony about future events and effects, just as offered in this case.”  (Id., at 528).  In fact, the definition propounded by the Government and accepted by the Court, i.e., a person who “has at any time in the past bought anything of value from a seller in another state” merely “trivializes” the connection with interstate commerce and is “so-open ended that it would permit the federal government to prosecute almost every robbery that occurs in the United States just as if the United States had been granted a general police power under the Constitution.”  (Id.).  Citing U.S. v. Lopez, 514 U.S. 549 (1995), he icily observed that the Federal Government does not have a general police power.

Why, Judge DeMoss asked, do these “garden variety robberies under state law . . . bring to bear [such] draconian impacts on sentencing” under Federal law?  In large part, he answered, it is due to “imaginative prosecutive theories of the executive branch [and] lackadaisical decision making of the judicial branch.” (Id., at 526 and 27).  In the instant case, he concluded that the majority judges had resorted to “nothing but semantical camouflage intended to obscure the fact that the robberies in this case did not ‘obstruct, delay or affect’ interstate commerce.”  (Id., at 530).  (For more on the current race to federalize all crimes, see the Quote of the Week below).

Two-hundred-and-fifteen years!  That works out to one year in prison for each $79.07 stolen.  We never cease to be amazed at what can be done with smoke and mirrors.  Let’s see how long it takes to shatter this new record of 215 years.  We also guess that the next step will be an outcry for the death penalty when approved sentences begin to reach the giddy heights of say 250 years and more.  After all, think of all the taxpayer money that will be saved by using a single burst of electricity!

Britton v. Maloney, 981 F.Supp. 25 (D.Mass. 1997) (Judge Gertner)

In sharp contrast to the callousness and circumvention that sometimes emanates from the prairie plains of Texas, comes this legal gem from one of the most intellectually honest judges in America - Judge Nancy Gertner of Massachusetts.  Here, she has produced a tour de force on a topic that is very vexing (to the Government) and very confusing (to the Courts) - the defense of immunity asserted by Government agents in civil rights suits for damages.

This case involves another African-American male, Randy Britton, who had been educated at Harvard and West Point.  Late one afternoon Britton was driving with his daughter when he was suddenly accosted, taunted, threatened and chased by the occupants of another car, who he claimed pointed a gun at him.  Fearing for his life, Britton drove to a nearby police station for safety and help.  At the time of the incident Britton worked for the U.S. Census Bureau - a job that required him to spend time in a notoriously dangerous housing project; and for that reason he carried a disassembled, unloaded rifle under the driver’s seat of his car.  He possessed a valid Firearm Identification Card for the rifle - and the legality of his possession of the gun was never attacked or asserted by the police.  When he entered the police station, he carried the unloaded rifle with him; and the rifle was soon taken into custody by the police for “safekeeping.”

Briton’s tale of harassment by the occupants of the other car were met with an air of obvious ennui and disbelief, even though the car that chased him followed him right to the police station and the police eventually interviewed its occupants.  After spending some frustrating 45 minutes at the police station, Britton left - without his rifle.  He was given an “incident report” which (a) advised him to seek assistance from the detectives’ unit at another police station, and (b) informed him that the rifle was being held for safekeeping.  Over the next few days he attempted to regain possession of the rifle, but the police simply refused to return it to him.

Finally, when Britton threatened to bring suit for the return of his rifle, on the grounds that its seizure violated the Fourth Amendment, he was suddenly advised that there were criminal felony charges pending against him.  The hastily concocted charges were based on an alleged assault  against the occupants of the chasing car - even though those occupants never filed any charges.  [In fact, at the subsequent trial for damages in this case, the driver of the offending car testified under oath that Britton had never threatened him or pointed his rifle at him].  Nevertheless, Britton was charged with two counts of assault with a deadly weapon and that charge remained on his record for more than three months until the charge was finally dropped for want of prosecution.

After the charges were dropped, Britton, acting pro se, brought a civil rights suit for damages against the police, under 42 U.S.C. § 1983.  He claimed that the false felony charges had a substantial effect on his life, his well-being and his prospects; and he proved that he had been terminated from employment by a New York securities firm because he had failed to indicate that he had even been charged with a felony. The jury awarded him $200,000 in damages against one of the police officers who instituted the false criminal proceedings.  That defendant immediately appealed, arguing principally that the action was barred under the Supreme Court’s ruling in Albright v. Oliver, 510 U.S. 266 (1994). 

Essentially, in Albright, a plurality of four judges held that there is no substantive due process right not to be charged with a crime without probable cause; and it suggested (as the defendant in this case claimed) that a defendant who is not arrested - but is merely falsely accused or charged with a false crime- has no cause of action under § 1983.  Since Britton was never arrested, the defendant claimed that under Albright he had no valid § 1983 claim.

With her typical clarity and incisiveness, Judge Gertner found that interpretation “deeply troubling. . . . It permits police officers who go so far as to fabricate charges in an official court proceeding, put a citizen at risk of conviction, and the loss of liberty, jeopardize his employment, consume his time and resources, but stop short of arresting the person, to evade § 1983 accountability.”

She then analyzed the Albright decision in depth.  She started with the candid observation that: “At the base of the Court’s holding lay its fear that plaintiffs might use § 1983 to expand rights not otherwise codified in the Constitution, transforming the statute into a cause of action for general unfairness.” (Id., at 35). [The burgeoning Government, of course, prefers that its subjects accept the philosophy of “general unfairness” and worries that attempts to limit Government unfairness might impinge on its ability to rule autocratically.]  Judge Gertner also noted that courts have commented that Albright “muddied the waters rather than clarified them” and that the “melange” of highly-splintered opinions in that case have created “the Albright minefield.”  (Id.)

In the end, Judge Gertner affirmed the damage award under § 1983 as consistent with whatever the Supreme Court meant in Albright.  First, she argued that the plurality’s discussion of the content of a Fourth Amendment claim was mere dicta, since the plaintiff in that case never alleged such a violation. Thus, she forcefully ruled that “Albright did not eviscerate all malicious prosecution claims brought under § 1983 that did not involve arrests.”  (Id., at 37).  However, to make sure that she laid an adequate framework to support her decision on any appeal, she also justified her decision on the basis of three separate arguments that were “left open by Albright: . . . (a) Justice Ginsburgh’s ‘continuing seizure’ theory; (b) Justice Souter’s ‘exceptional case’ theory; and (c) a line of cases - not discussed in Albright - which I will refer to as the ‘retaliation cases’.”  (Id.).  

Clearly, she held, whether or not Britton was formally “arrested”, his lengthy involvement attempting to extricate himself from the false criminal charges constituted a “seizure” within any rational reading of the Fourth Amendment.  Clearly, too, Britton endured unique harms of constitutional proportions that fell within the category of “exceptional cases” exempted by Justice Souter.  Finally, citing numerous cases, Judge Gertner concluded that Britton’s claim of retaliation “strikes at the heart of both the civil rights statute and the underlying constitutional right.”  (Id., at 40).  All of those reasons gave additional, ample support for the damages awarded by the jury in this case.

Gabbert v. Conn, 131 F.3d 793 (9th Cir. 1997) (Judge Hawkins)

The other side of the immunity issue is the topic of absolute immunity - which is reserved only for the really big cheeses - the judges and the prosecutors  - because the Supreme Court has determined that those officials perform special functions that require independence and fearless performance.  See, Burns v. Reed, 500 U.S. 478, 484-85 (1991). The Court states in this decision that absolute immunity is given sparingly - which we guess depends on one’s perspective.  However, the defense of absolute immunity was denied in this case; and that was one of two reasons why we felt it should be noted.

The plaintiff in this civil rights case was Attorney Paul Gabbert, who was representing one Traci Baker, a defense witness in the high-profile, first murder trial of Lyle and Eric Menedez.  After the first trial resulted in a hung jury, the Government subpoenaed Baker before a Grand Jury to determine whether she had been instructed by one of the brothers to give false testimony at the first trial.  At the same time that Baker entered the Grand Jury room, Gabbert was subjected to a search, in a separate room, of his person and effects.  The Court noted that the timing and execution of that search was designed to prevent Baker from exercising her right to consult with her attorney during her examination - but outside the jury room.  See, U.S. v. Mandujano, 425 U.S. 564, 581 (1976).  Gabbert later brought this civil rights suit against the prosecutors, claiming that their conduct was deliberately staged to prevent him from freely rendering legal assistance to his client whenever she chose to seek his advice regarding her Grand Jury testimony.

The district court (Judge Lew) refused to grant summary judgment to the prosecutors on the grounds of absolute immunity, finding that they had been acting as investigators - not advocates - by participating or directing the pre-indictment gathering of evidence; but the judge also ruled that the prosecutors were entitled to qualified immunity.  On appeal, the Ninth Circuit agreed that the prosecutors were not entitled to absolute immunity, but reversed because the prosecutors had engaged in actions that were not objectively reasonable and therefore they were not entitled to qualified immunity either.  The decision contains a detailed review of many of the significant Supreme Court cases on both absolute and qualified immunity.

The second reason this case is noted is that it highlights a recent decision of the Supreme Court,  Kalina v. Fletcher, 139 L.Ed.2d 471 (1997), in which a unanimous Court  held that § 1983 may create a damages remedy against a prosecutor for making false statements of fact in an affidavit supporting an application for an arrest warrant, since such conduct is not protected by the doctrine of absolute prosecutorial immunity.  In our opinion, the Britton case referred to above, the Gabbert case, and now the Supreme Court’s decision in Kalina are destined to have a major impact in the field of civil rights litigation.

United States v. Hunter, 980 F.Supp. 1439 (M.D.Ala. 1997) (Judge Thompson)

In this case the Court examined, and rejected, a series of arguments made by a defendant who sought a downward sentencing departure based on his severe drug dependence.  Although U.S.S.G. § 5H1.4 states that neither drug nor alcohol abuse is a valid reason for imposing a sentence below the applicable Guideline range, the defendant mounted a series of creative arguments that his drug addition problem was so severe that he should receive a downward departure based on the provisions of U.S.S.G. §§ 5K2.11 (lesser harms) and 5K2.13 (diminished capacity).  Essentially, he argued that he engaged in drug dealings so he could buy drugs and avoid the perceived greater harm imposed by the severely uncomfortable symptoms of withdrawal.  The Court quickly dismissed those arguments - but it did make two interesting findings.

First, “although the court has found no case law specifically addressing this issue, [the Court concluded] that the drug offenses should not be deemed crimes of violence because the Guidelines themselves treat ‘controlled substance offenses’ and ‘crimes of violence’ as distinct categories in § 4B1.4(b)(3)(A).”  (Id., at 1450).  Second, the Court did note that a downward departure for drug addiction may be permitted “where the addition was the result of a pre-existing mental illness . . . or was not the sole cause of the defendant’s impaired mental capacity, but may have acted in addition to, or in concert with, a different source.”  (Id.)

United States v. Rivera, 131 F.3d 222 (1st Cir. 1997) (En Banc) (Judge Coffin)

This case is noted because it involves an attempt by the Government to expand its realm of already broad criminal statutes.  Here, it seized upon on a little-known statute, originally enacted in 1840 and which never before has led to any criminal charges, as the basis for its prosecution.  The statute in question, 46 U.S.C. § 10908, provides that a person who “knowingly sends or attempts to send . . . a vessel of the United States to sea, in an unworthy state that is likely to endanger the life of an individual, shall be fine not more than $1,000, imprisoned for not more than 5 years, or both.”

The defendant in this case was a tug-boat captain who was towing an oil barge from San Juan to Antigua when the barge broke loose from its towing line, ran aground, and subsequently spilled its cargo into the seas.  Because it was established that the tug-boat captain was aware that the towing wire needed replacement, he was charged with violating this hither-to unused statute.  After his conviction, he argued that the conviction was invalid both because certain procedural prerequisites of the statute were not met, and because a literal interpretation of the statute would result in unfair, irrational or absurd results that would raise “the specter of thousands of prosecutions based on wide-ranging claims of unseaworthiness.”

While recognizing that the use of this ancient statute did pose some “puzzling ramifications”, it took an en banc court to conclude that the “novelty of this prosecution” did not suggest that the use of the statute was either unfair or absurd.  Judge Torruella strongly disagreed with the majority’s “insular interpretation” of the statute, concluding it posed “a substantial threat of converting an untold number of unsuspecting persons into prospective felons.”  (Id., 236).

Perhaps recognizing that the scope of its ruling could lead to chaos at every yacht club in America, the Court did reverse the conviction on the more limited grounds that the evidence presented was insufficient to support the conviction.  It concluded that the Government’s evidence showed only that the deteriorated towing wire could pose a risk to human life - not that the defendant had sent a vessel to sea “knowing that its unseaworthy condition was likely to endanger life.”  (Id., at 231).  Whatever the outcome, having learned that this case was not laughed out of existence by the courts, we can now expect massive snooping from FBI agents and Navy Seals at all of America’s seaside playgrounds.

Museitef v. United States, 131 F.3d 714 (8th Cir. 1997) (Judge Murphy)

This case shows another of the many vindictive sides of Big Brother.  Here, after the Government failed in its efforts to convict the defendant, it promptly moved to bankrupt him.  Here’s what happened.  The defendant was acquitted of a charge of  using a communication facility to obtain possession of ephedrine [which is not an illegal drug] “with reasonable cause to believe that it would have been used to manufacture methamphetamine” in violation of 21 U.S.C. §§ 841(d)(2) and 843(b).

As we all know, the Government hates to lose; so it promptly moved, under 18 U.S.C. § 3006A(f), for reimbursement of the costs advanced for his defense.  The Court quickly accepted that invitation.  It directed the now-innocent defendant to pay $830.25 to reimburse the Clerk of the Court for expenses it incurred; $6,851.31 for costs that the U.S. Marshal’s Office had expended guarding him; and an unstated amount to cover the costs incurred by the Federal Public Defenders’ Office unless he could prove his indigence to the satisfaction of the court within 15 days.  To top it off, the unnamed district judge also ordered that a judgment be entered against the defendant for any deficiency.

The defendant protested.  First, he argued that the court had already properly determined that he was unable to pay the costs of his defense.  Next, citing a number of cases in support, he argued that “once an individual has demonstrated an inability to pay the costs of his defense, repayment should be ordered under § 3006A(f) only after a full inquiry into his actual ability to bear those costs.  Finally he disputed the court’s reliance on evidence produced at trial that the defendant owned three convenience stores, a partial interest in two other stores and a California liquor license.  He noted that he had been forced to sell his interests in his stores at a loss and that his liquor license had been revoked so it had no value.

“Tut-tut” said the Court.  While it agreed that “inability to pay is not the same as indigence or destitution” and that the proper test was “whether repayment would cause such financial hardship as to make it impractical or unjust” (id., at 716), it trumped all of the defendant’s arguments by stating that he was appealing from an order that was not “final” within the meaning of 28 U.S.C. § 1291.  Thus, it concluded that it was without jurisdiction to hear the appeal.  It never mentioned its oft-used inherent equitable powers to remedy an injustice; (see, e.g., Government of the Virgin Islands v. Roberts, 756 F.Supp. 898 (D.V.I. 1991) where the court cited its inherent power to protect the criminal justice system from “abuses, oppression and injustice”; and 28 U.S.C. § 2106 which grants any court of appellate jurisdiction the right to cause the entry of “such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”).  Instead, the Court merely opted to force the defendant to use more of his limited resources to fight the deficiency judgment.  Ah . . . justice in America.

QUOTE OF THE WEEK  -     Is any sentence of 2,581 months in Federal prison ever justified - or does                                                  the Government just need such sentences for propaganda purposes as a                                                  means of justifying its “race to federalize state crimes?”

          "The current race to federalize state crimes epitomizes the very tendency most feared by
     those who wrote and ratified the Constitution:  a strong central government relegating to
     itself all power.  That concern led them to assure future generations that the central
     government would be restrained by a constitution giving it only powers there expressly
     granted and enumerated.  The Tenth Amendment reserved to the states and the people
     all powers not so granted.  Those farsighted constitutional draftsmen foresaw that locally
     elected prosecutors were more likely to respect the liberties of the people than officials
     appointed by, and answerable only to, a far off national government . . . . If the Tenth
     Amendment retains any validity in the area of criminal law, that remnant is fast being
     eroded."  District Judge Jim R. Carrigan, in United States v. Ornelas, 841 F.Supp. 1087,
     1093 at n. 11 (D.Colo. 1994).  

Scorecard of published criminal cases reviewed by our staff this year:

Cases in the Federal Reporter:              This week:     43       Year to date:         137
Cases in the Federal Supplement:         This week:     11       Year to date:           61