Vol. 5, No. 11       As Published in the Advance Sheets on March 16, 1998          Copyright © 1998

Highlights of this Issue:

Leading Case 

The Campbell decision is one of three cases this week that deal with long delays in the administration of justice - a concept that doesn't seem to perturb the courts very much.  In Campbell, the court held that a judge has the right to impose a new and harsher sentence on a defendant - even long after the defendant has completed serving the original sentence that was imposed - if the defendant was aware, or should have been aware, that the original sentence was invalid - a proposition that raises serious questions about the validity of the principle that defendants are entitled to an expectation of finality in their sentences.
 

 
The Ceja case is another case that deals with long passages of time; and it is one of those chilling cases that raises the disturbing question of whether there can ever be any legitimate penological reason for executing a person who has spent 23 years on death row.

The Pardue case also deals with the slow-grinding wheels of justice - this time a mere ten year delay between the commission of a crime and the indictment of the defendant - which the court concluded imposed no prejudice on the defendant.
 

The Enjady decision contains a comprehensive review of some of the constitutional issues involved with the new Rules 413-15 of the Federal Rules of Evidence, which deal with sex abuse crimes, and which dramatically depart from the long tradition of prohibiting the use of prior bad acts and character evidence in criminal proceedings.

The Kahoe case raises an interesting question about whether a prior conviction is necessary to support a felon-in-possession of a gun charge - or whether a mere indictment is sufficient.

The Andrade case confirms the disturbing trend, recently reported by The New York Times, that defendants' Miranda rights are slowing, but inexorably, being chipped away by both the police and the courts.
 

The Tocco case is noted for its holding that a sentence that is close to a person's life expectancy, it is not the "functional equivalent" of a life sentence.

It is rare that we feature, as our lead case, a decision that contains relatively nondescript and perfunctory recitations judicial platitudes; but we do so this week because there is far more behind the troubling saga of this case than is visible at first glance.  First of all, this case ("Campbell II") shows continued rumblings of open hostility among the judges from the D.C. Circuit.  Last week, for example, we noted how the D.C. Circuit lashed out, with uncharacteristic and unrestrained anger, at Judge Sporkin, who dared to criticize - or, worse, publicize - the lunacy of some aspects of the Guidelines.  When he exercised his judicial discretion and granted a substantial downward departure to a drug addict because "it makes no sense to turn our jails into long term addict housing", the Court fearfully screamed that he had "wreaked havoc in the administration of justice".  United States v. Webb, 134 F.3d 403, 409 (D.C.Cir. 1998).  In this case, the D.C. Circuit treated Judge Oberdorfer in a similar manner.  In a previous decision, he, too, had voiced serious concerns and severe criticisms about the "emanations" of racism and the "racist implications" of some of our drug laws and sentencing policies.  The Court curtly rejected those characterizations as "untenable."  Effectively telling him to "shut-up", the D.C. Circuit directed Judge Oberdorfer to sentence the defendants in this case according to what the Guidelines called for - not for what he felt was fair and just.

The history and ultimate disposition of this case also raises other significant Guidelines/sentencing issues; and to appreciate those issues it is necessary to understand the facts of this case.  In early 1991, two undercover DEA agents began to make purchases of drugs from four co-defendants involved in this case, Riley Walls, Jerome Jackson, Karen Blakney and Charles Campbell.  Although the defendants wanted to supply cocaine, the DEA agents insisted that the defendants supply crack.  The defendants were indicted and tried for their drug crimes.  Their first trial ended in a mistrial because of some unspecified "juror intimidation."  The second trial resulted in convictions of all four defendants.  Walls and Jackson received mandatory life sentences; but, in the case of Blakney and Campbell,  he refused to apply the mandatory minimum sentences of 10 years for Blakney and 20 years for Campbell and he sentenced each of them to 33 months in prison.

The details of Judge Oberdorfer's sentencing decision were reported in the case entitled U.S. v. Walls, 841 F.Supp. 24 (D.D.C. 1994) ("Walls I").  Essentially, Judge Oberforfer concluded that both Blakney and Campbell had played undisputed minor roles in the crimes for which they were convicted and that the crack sentencing laws were manifestly unfair.  In the end, he concluded that the imposition of the mandatory minimum sentences would be "arbitrary and capricious" and so "grossly harsh" that it would constitute cruel and unusual punishment in violation of the Eighth Amendment.  The D.C. Circuit promptly reversed that decision in U.S. v. Walls, 70 F.3d 1323 (D.C.Cir. 1995) ("Walls II"); and it remanded the case for resentencing in accordance with the mandates of its ruling.

On remand, Judge Oberdorfer was clearly disturbed.  He noted that, by the time of her resentencing, Blakney had already completed her 33-month sentence for a crime committed some six years earlier; and that she had been living back in society for some 19 months!  Seeking guidance from the Sentencing Commission, he learned that, out of some 40,000 appeals since the inception of Guideline sentencing, only 5 cases involved defendants who had been incarcerated for a substantial period, then released, only to be resentenced back to prison.  Concluding that the imposition of a new term of imprisonment would, under those circumstances, be grossly unfair and play havoc with the concept of finality of sentences, he resentenced Blakney to time served.  [That decision was promptly reversed by the D.C. Circuit in a two- page unpublished decision, noted at U.S. v. Blakney, 132 F.3d 1482 (D.C.Cir. 1997).  The Court ruled that Blakney could not have had any legitimate expectation of finality in her original sentence because "she knew from the start that the legality of her sentence was in dispute."  (Campbell II, id., at 159, n. 4)].

On remand in Campbell's case, Judge Oberdorfer surveyed his options.  He still felt that the imposition of a 20-years sentence on this "a 53-year old defendant . . . who is an addict" would be intolerably harsh and would be "equivalent to a life sentence."  He noted that it was the DEA agents who had demanded crack after Walls and Jackson had offered to sell powdered cocaine; and, with obvious disgust, he even noted that the DEA agents had directed that Campbell be given a piece of crack "to feed his addictions."  (U.S. v. Campbell, 959 F.Supp. 20, 21 (D.D.C. 1997) ("Campbell I").  Campbell, too, had completed service of his 33-month sentence by the time of his resentencing; but he was not released.  Instead, he was held, under the bond statute, 18 U.S.C. § 3143(a)(2), "in a post-conviction/pre-sentencing status."  For those reasons, Judge Oberdorfer suggested to Campbell's counsel, in open court, that they seek a pardon for Campbell.  He also considered postponing his sentence until the Sentencing Commission and Congress had acted on proposals to change the 100-to-1 disparity between sentences for crack and powder cocaine offenses.  In the end, he concluded that such a postponement would be viewed by others - "particularly prosecutors and the Court of Appeals" - as "an appearance of bias within the meaning of 28 U.S.C. § 455(a)."  To avoid that, he simply withdrew from the case, and asked that it be reassigned to another judge.

The resentencing of Campbell was assigned to Judge Joyce Hens Green; and in Campbell II, she carefully "framed"  the issue at stake as "whether it would be fundamentally unfair, and thus violative of due process, for this Court to correct the illegal sentence and thereby substantially increase Mr. Campbell's term of incarceration after he has served a significant [sic!] portion of his original sentence."  (Id., at 159). [For the record, we note again that by the time of his resentencing, Campbell had not only fully served his original 33-month sentence, he had also spent more than an additional year in prison in what Judge Green euphemistically described as a "post-conviction/pre-sentencing status."  (Id.)].

In answering her own rephrased issue, Judge Green did acknowledge that "several Circuits have recognized that ‘there must be some limitation on the power of the trial court to enhance punishment by resentencing after the defendant's commencement of sentence'."  (Id., at 159).  However, she then commented that "they have not defined its contours with precision."  That "lack of precision" helped her conclude that Campbell's "expectations of finality cannot be said to have crystalized prior to the Court of Appeals remand."  Totally ignoring Judge Oberdorfer's finding in Campbell I that Campbell "convincingly asserts that it was his reasonable expectation that the 33-month sentence originally imposed was all he would be required to serve (Campbell I, id., at 21), Judge Green concluded that Campbell "was aware from the very moment of sentencing that the Court's decision to depart downward so radically from the statutory mandatory minimum sentence was considered by government counsel to be most unusual and would be immediately challenged by the United States."  (Campbell II, id., at 160).

The messages from all this?  Well, the escalation of hostilities among the judges from the D.C. Circuit has become both bitter and public; but America can sleep better because two minor players got severe drug sentences.  The lessons we learned from the fairy tale, "The Emperor's New Clothes," about reading between the lines of all Government pronouncements - including judicial decisions - are still alive and wonderfully instructive; but the  concept of finality of sentences may have been mortally wounded.  And despite concerted efforts to silence all protests about the Guidelines, the many murmurings about their inherent fairness rage on; and to show another example of that chorus we have set forth, in the Quote of the Week below, the views of another senior judge (and a former prosecutor), from a different Circuit, who also dared to speak out about the "failed experiment" of the Federal Sentencing Guidelines.

This case is another eye-opener about the purposes and goals of capital punishment in America.  In this case, the petitioner had been incarcerated on death row since December 19, 1974 - a total of some 23 years.  At least five times, an execution date was set; and four times it was postponed.  With his latest execution date scheduled for January 21, 1998, Jose Jesus Ceja petitioned the Ninth Circuit for another stay, asserting principally that the length of his stay on death row violated the Eighth Amendment's prohibition against the infliction of cruel and unusual punishment.

District Judge Broomfield denied the petition, holding that the claim was covered by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), and that because the petitioner had failed to seek or obtain permission from the Court of Appeals to file a successive petition concerning that claim, the court was without jurisdiction to act.  When that decision was appealed to the Court of Appeals, that Court affirmed the denial of any stay - stating that "no Supreme Court or Ninth Circuit authority recognizes such a claim as an exception to AEDPA."  As a result, Ceja was executed on January 21, 1998.

Judge Fletcher dissented; and to say that she was appalled by the intransigent and technical rigidity of that decision would be a gross understatement; but her dissent is a thought-provoking masterpiece.  She started by noting that when Ceja was first incarcerated, he was "an irresponsible, street tough teenager without a high school degree.  He is now a middle-aged man with a GED and several college courses to his credit who has held employment . . . as a law clerk in the law library at the prison. . . . For 23 years, Ceja has lived in solitary confinement, much of it in the typical death row cell on Cell Block 6 at the Arizona State Prison in Florence.  Those cells are little more than a 7' x 10' windowless concrete box with a metal sink and toilet and a concrete slab for a bed. . . . If Ceja is executed, his de facto sentence will be 23 years of solitary confinement in the most horrible portion of the prison - death row - followed by execution.  There has never been such a sentence imposed in this country - or any other to my knowledge.  Neither Arizona nor any other state would ever enact a law calling for such punishment."  (Id., at 1369).

From there, Judge Fletcher launched into a compelling analysis of the purposes of capital punishment.  She noted that the Supreme Court has repeatedly articulated an important qualification on the power of Government to impose "the ultimate sanction upon our most serious offenders": the imposition of the death penalty . . . must serve some legitimate penological end that could not otherwise be accomplished.  If ‘the punishment serves no penal purpose more effectively than a less severe punishment' . . . then it is unnecessarily excessive within the meaning of the Punishments Clause."  (Id., at 1373).  She continued  that the only justifications that can support the imposition of the death penalty are "retribution and deterrence of capital crimes by prospective offenders"; and she followed with a brilliant discourse on the  proper role of both those goals in our legal system.

Deterrence, for example, had no role in this execution because "[f]or capital punishment to deter anybody it . . . must . . . follow swiftly upon completion of the offense."  (Id., at 1376, quoting from Justice Marshall.)  Retribution, in turn, connotes two different concepts: an expression of moral outrage by a community; and a "primitive, eye-for-an-eye [exaction] of blood vengeance."  The former, she explained, is a valid and permissible penological goal; but the latter is never a legitimate basis for the imposition of the death penalty.  "Retaliation, vengeance and retribution have been roundly condemned as intolerable aspirations for a government in a free society."  Furman v. Georgia, 408 U.S. 238, 343 (1972) (Marshall, concurring.).  Under those standards, she questioned what "healing or stabilizing effect Ceja's execution [would] have twenty-three years after the date of his original conviction."  (Id., at 1374).

Judge Fletcher would have granted Ceja a hearing on his claims; and her decision is a valuable and comprehensive review of the purposes of capital punishment that is well worth reading and studying.   For the convenience of our subscribers, a copy of the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, which was filed by Attorney Michael W. Patten of Phoenix, AZ, has been posted on the Briefs and Motions Section of this site.

It is not too difficult for the average layman to understand why the Government would wait ten years before indicting a defendant for a crime that occurred ten years before.  Normal people don't keep records that long; witnesses die; people's recollections about what really happened become fuzzy and pale; and the costs of recreating the proof needed to defend against the charges are usually prohibitive for everyone but the Government, which can outspend anyone in reconstructing the facts as needed for a conviction.

From their isolated ivory towers, the Courts don't see those disadvantages very clearly.  For example, the Supreme Court held, in U.S. v. Lovasco, 431 U.S. 783 (1977), that the primary protection against overly stale criminal charges is the applicable Statutes of Limitation; and that to establish the type of preindictment delay that violates the Due Process Clause, a defendant must show first that the delay caused actual and substantial prejudice, and then he must show that the Government delayed the proceedings to gain some tactical advantage or for some other impermissible reason - which, absent a career-ending admission from a prosecutor, it virtually impossible to prove.

Following those principles, the Court in this case had little difficulty concluding that the defendant was not prejudiced by a ten-year delay between the closing of a bank that made unsecured loans to his real estate business and his prosecution for embezzlement and misapplication of bank funds, even though five potential witnesses had died during that period.  Thus, it affirmed the denial of his motion to dismiss the indictment due to the failure to prove "concrete evidence of material harm."

Aroused by the growing surge of sex crimes in America, in 1995 Congress enacted a series of new amendments to the Federal Rules of Evidence designed to make it easier to obtain convictions.  Those rules, contained in Rules 413-15 of the Fed.R.Evid., relate to the admission of evidence of similar crimes and acts in various types of sex cases.  Congress decided that it was necessary to lower the obstacles to the admission of "propensity" evidence in most sex-crime cases.  In enacting those rules, Congress overrode serious concerns expressed by the Judicial Conference and its Advisory Committee on the Federal Rules of Evidence; and numerous commentators have expressed the view that the new Rules are unconstitutional because they violate the historical exclusion of prior bad acts evidence to prove propensity to commit the crime charged.

Since the enactment of those Rules, a number of cases have addressed those constitutional concerns; and while most have ultimately upheld the new Rules as constitutionally valid, they have done so only after concluding (as the Court did in this case) that before a district court permits the use of the types of evidence called for by Rules 413-15, the court must apply the "balancing test" set forth in Rule 403, despite the lack of any reference in the new Rules to Rule 403.  Rule 403 provides that evidence, even if relevant, may be excluded if its probative value "is substantially outweighed by the danger of unfair prejudice . . . ".

In the instant case the defendant was convicted of aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, 2241(a)(1) and 2245 (2)(A).  After his conviction, he appealed, arguing that the district court had erred by admitting testimony from witness who claimed that the defendant had raped her approximately two years earlier.  The Tenth Circuit held that the evidence of the prior alleged rape was both relevant and admissible under Rule 413; and that the district court had properly applied the balancing test of Rule 403.
The precise issue before the court was whether Rule 413's presumption in favor of admission of such evidence violates fundamental fairness; and the decision contains one of the better discussions of the legal problems and issues relating to the new Rules, among other reasons because it attempts to explain the elusive and difficult to comprehend distinctions between propensity evidence (which is not permitted) and evidence that is offered to prove "motive, opportunity and intent" (which is permitted under the provisions of Rule 404(b)).  For example, quoting from Michelson v. U.S., 335 U.S. 469, 475-76 (1948), the Court explained the rationale for the historical ban on the use of prior bad acts as propensity evidence:

"The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime.  The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over-persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.  The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice."

Of course, as this case proves, when public passion directs Congress to act, politically popular laws seem to take precedence over historically important protections against confusion of issues, unfair surprise and undue prejudice.

The gun activists often claim that the Government lives in abject fear of anyone (except, of course, Government employees) possessing guns - because an armed citizenry poses a threat to its base of power.  They argue that the Government wants to make sure that never again will there be a chance of a revolution in this country - no matter how oppressive, despotic and arbitrary the Government may become.  Well, true or not, the sophistry evidenced by this case certainly shows that the Government is a wee bit jumpy about guns in the hands of the populace.

The defendant in this case was convicted as a felon in possession of a gun, in violation of 18 U.S.C. § 922(g)(1).  The underlying, or predicate, crime for that offense was another gun conviction under 18 U.S.C. § 924(c).  However, the disabling § 924(c) conviction was subsequently vacated by the courts because that crime did not satisfy the "active use" prong of such a crime, within the meaning of Bailey v. U.S., 516 U.S. 137 (1995).  The defendant then moved to vacate the § 922(g) conviction, arguing that the latter conviction could not stand, once the underlying conviction had been set aside.

The Fourth Circuit rejected the logic of that argument.  It noted that the Supreme Court had analyzed a similar (but now repealed) gun statute in the case entitled Lewis v. U.S., 445 U.S. 55 (1980); and in that case it held that it's not the conviction that counts, but the indictment.  Defying the plain language of the statute that called for a prior conviction, the Supreme Court effectively attempted to change the law by stating that, due to the sweeping language of the gun laws, they "impose a disability not only on a convicted felon but also on a person under a felony indictment, even if that person subsequently is acquitted of the felony charge."  (Lewis, id., at 64) (Emphasis added).  Justice Brennan commented that the decision itself "defies reason."  But, the major flaw of the quoted statement, upon which the Kahoe court relied, it that it simply circumvents the plain language of the statute.  Although we hesitate to give the Government any ideas, under that broad ruling Lewis could be read as meaning that if the Government obtained one mass-indictment against every man, woman and child in the United States, it could then argue that because they had all been indicted they could no longer possess guns.

Ah, but Lewis is not applicable here, argued the defendant, because in 1986 Congress amended the gun laws to include a provision that defines a qualifying prior felony conviction for purposes of a conviction under § 922(g). That section states, in part, that: "Any conviction which has been expunged, set aside or for which a person has been pardoned or had his civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provided that the person may not ship, transport, possess, or receive firearms." (18 U.S.C. § 921(a)(20) (emphasis added).

As we often learn in the field of criminal law, whenever something seems that clear, it just isn't.  The Court ruled that the plain language of § 921(a)(20) merely means "that a conviction that has been set aside can no longer be disabling.  The language does not provide that such a conviction was not disabling between the time it was obtained and the time it was set aside."  (Id., at 1233) (Emphasis added.)  Not even the rule of lenity was applicable in this case because, in the court's mind, there was no "grievous ambiguity or uncertainty."  Thus, because the defendant's earlier conviction was a disabling predicate offense when he possessed a gun under the then-understood parameters § 924(c), he was entitled to no relief.

Just as The New York Times has completed a series of front-page articles entitled "Police Tactics Chipping Away at Suspects' Rights", comes this case from the First Circuit which gives credence to the Times conclusion that "Case by case, the United States Supreme Court and state courts have narrowed the definition of when the police must give [Miranda] warnings, relaxed the standards for what passes as a waiver of rights, said that a request for a lawyer must be explicit, and even allowed prosecutors to make moderate use of incriminating statements taken after a suspect has asked for a lawyer."  (The New York Times, March 29, 1998, p. A-1)

In that setting it is perhaps not surprising that the First Circuit joined the trend and held that it was not improper for the police to resume questioning of the defendant while he was in custody, after he had first asserted his Miranda rights (See, Miranda v. Arizona, 384 U.S. 436 (1966)).  The Court reasoned that there was a reasonable interval between the two periods of questioning and there was no "repeated attempt to reverse a refusal to talk through undue pressure."  (Id., at 107).  That decision would appear to be in conflict with the so-called Edwards rule (See, Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), where the Court unequivocally held: "We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."
 

There were many issues raised in this complex appeal from multiple convictions based on arson- homicide, mail fraud and witness tampering; and two of those were issues of first impression in the Second Circuit.  The first was a challenge, based upon the Supreme Court's ruling in U.S. v. Lopez, 514 U.S. 549 (1995), that the evidence presented was insufficient to support the interstate commerce element of the arson homicide offense.  That challenge was quickly rejected by the Court, which ruled that Lopez did not apply to statutes, such as the arson statute, that contained a "jurisdictional element."  Thus, "to satisfy § 844(i) the government need only prove that the arson in question destroyed or damaged property either ‘used in' or ‘used in any activity affecting' interstate commerce."  (Id., at 124).

The more interesting issue related to the defendant's claim that the sentence he received (435 months) was improper since it exceeded his life expectancy.  He argued that the plain language of the version of the arson-homicide statute applicable to him at the time of his crime (18 U.S.C. § 34(1988)) authorized the imposition of a life sentence only by jury recommendation - and that such a recommendation was never requested from the jury.  Judge Weinstein was aware of the limitations of the then version of § 34 at the time he imposed the sentence.  Although he acknowledged that the sentence was five years more than the defendant's life expectancy, he reasoned that the defendant would receive 64.3 months of good- time credit while in prison, and that the actual term of imprisonment would "only" be 371 months, one month short of the defendant's life expectancy.  The defendant argued that he was not yet entitled to any good-time credits, and that they might never be earned.

The Second Circuit responded: "While it is true that a defendant is not entitled to such credit, see 18 U.S.C. § 3624(b) (a prisoner ‘may receive' good-time credit subject to the Bureau of Prisons' determination that he has displayed ‘exemplary compliance with such institutional disciplinary regulations'), we decline to adopt [the defendant's] interpretation of § 34 that would, in effect, allow defendants to argue that they should receive a shorter formal sentence because they plan to disregard prison rules and thus fail to earn good-time credit. . . . [Besides, a] sentence that is close to a person's life expectancy based on actuarial tables is not the functional equivalent of a sentence for the actual life of the person."  (Id., at 132).  Functional equivalent or not, does it really make sense to eke out the last months of a prisoner's life, virtually assuring that he will die in the cold confines of a prison cell, or is that simply "blood vengeance?"

"[G]iven the frequency with which the guidelines result in sentences of numerous decades, combined with the fact that forty year old defendants are not uncommon, logic would seem to dictate that the members of the [Sentencing] Commission were unconcerned about de facto life sentences. . . . [M]y careful and painstaking reflection over the consequences of the proper application of the guidelines . . . leave me overwhelmingly convinced that, except for increased uniformity of sentences, the guidelines are a failed experiment. . . . I feel they are ‘[unable] to balance the distant guidance of a bureaucracy against the detailed responsibility of the individual sentencer' . . . . Furthermore, I find the authority given by the guidelines to United States Attorneys, enabling them to control the sentencing  process, to be entirely inappropriate and an invasion of the historical role of judges as the final arbiters of justice.  Incredibly, we now have the inflexible prosecutorial mind which, all too often, caters to public passion, dictating sentencing parameters."  Senior District Judge Pettine [himself a former prosecutor, as are most of today's judges], concurring in U.S. v. Jackson, 30 F.3d 199, 205 (1st Cir. 1994)

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

Cases in the Federal Reporter:              This week:     29       Year to date:         405
Cases in the Federal Supplement:         This week:     26       Year to date:         215