Vol. 5, No. 12       As Published in the Advance Sheets on March 23, 1998          Copyright © 1998

Highlights of this Issue:

Leading Cases

The Campo and Kaye decisions shed important light on the powerful (and often secret) Government policies and practices that affect the rights of defendants who decide to provide the Government with substantial assistance.  The Kaye case is particularly noteworthy because it is the first decision we have seen from a Court of Appeals in which the concept of a sentence departure, under U.S.S.G. § 5K2.0, was approved, without a Government motion, based on cooperation given to local authorities.
 

The Wilson case is a terrifying example of prosecutorial misconduct during closing argument.  In this case, to assure a conviction, the prosecutor began to accuse a defendant, during his closing statement and after all the evidence was completed, of committing a murder even though he knew that someone else had already been convicted of that very murder.
 

The Sandra Court decision presents a comprehensive review of the Circuit law on the issue of whether courts may consider evidence that a proposed forfeiture violates the Excessive Fines Clause because it is grossly disproportionate to the crime committed.
 

The Paniagua-Ramos case contains a detailed analysis of the proper elements of the so- called Allen-charges, which are used in cases where the jury is deadlocked.
 

The Pielago case is a telling example and a stern warning of the foils and foibles of proffer agreements.
 

The Tankleff case is noted for its holding that a defendant may object to race-based exclusion of jurors whether or not the defendant and the excluded jurors share the same race.

Both of these cases are significant because they make important statements about the policies and legal principles that control the fate of those defendants who seek sentence reductions by providing "substantial assistance" to the Government.

Campo deals with Judge Platt's long battle to force the Government to be more honest with the courts (and with defendants) in dishing out its infamous § 5K1.1 letters.  As we all know, U.S.S.G. § 5K1.1 authorizes a sentencing court to impose a sentence below the applicable Guidelines range if it determines that the defendant-turned-snitch has cooperated fully with the Government and has provided substantial assistance to law-enforcement authorities.  In this case, the Government entered into a second cooperation agreement with Campo after he had apparently breached an earlier cooperation agreement.  When it came time to sentence the defendant and two co-defendants, the Government did file § 5K1.1 motions with the district court, requesting the court to consider the defendants' cooperation in determining appropriate sentences for the three defendants - but none of the motions recommended a specific below- Guidelines sentence.  In addition, in the case of defendant Campo, the Government sent mixed signals to the court because it also asked the court to consider his earlier breach of first cooperation agreement.

Annoyed with such open ambivalence, Judge Platt stated: "The 5K letters are meaningless because the government refuses to make any recommendations.  And I have told the government this and I have said it for 20 years in this court that until the government writes a meaningful 5K1 letter, I have just no obligation in this court to do anything about it."  When defense counsel argued that it would be unfair to defendants to refuse to impose a below-Guidelines sentence based on the Government's failure to recommend a specific sentence, Judge Platt responded:

"I think it is unfair, too, but I am not the Government.  And the Government has been taking this unfair position for twenty-two and a half years, for as long as I have been on the bench.  When I was a prosecutor 40 years ago, we stood up before a judge and said this man deserves this because he's done thus and so.  Or this man has done nothing and he deserves that.  There is not a man or woman in the prosecutor's office who has the guts to do it today. . . . They first used to tell me it was a departmental policy.  I went down and talked to the department and they said there was no such policy.  What am I supposed to do?"  (Emphasis added). 

The court then asked the prosecutor whether she wished to respond.  She explained that she was "constrained by the [non-existent?] policies of the U.S. Attorney's Office for the Eastern District of New York not to make a specific sentenc[ing] recommendation."  When the Court continued to press, she finally relented a bit by stating that the only statement she could make was that the Government would not oppose probationary sentences for Campo's two co-defendants; but that she would make no specific recommendation with respect to Campo.  Based on that, Judge Platt then sentenced the two co- defendants to five years probation, and he sentenced Campo to six years imprisonment.

The next day, the Government filed an application, pursuant to Fed.R.Crim.P. 35(c), seeking to have Campo resentenced.  Its grounds?  None other than the usually strenuously-fought contention that Judge Platt had failed to advise Campo of his right to appeal his sentence - which only goes to show the rank hypocrisy of the sentencing games that are so often played.  (For more on that topic, see the Quote of the Week below).  When Campo appealed to the Second Circuit, it agreed that Judge Platt had been wrong because judges may not "interfere with the prosecutor's decision either to make or not to make a § 5K1.1 motion, as prosecutorial discretion is traditionally exclusive and absolute."  Thus, it held Judge Platt's refusal to exercise his discretion when presented with a 5K1.1 motion (notwithstanding the Government's cowardice in refusing to take a position on what sentence should be imposed) resulted in a sentence that was "imposed in violation of law" within the meaning of 18 U.S.C. § 3742(a)(1).  The sentence was vacated and the case was then remanded to a different judge in order to "preserve the appearance of justice."  Essentially, the case sends the message that, because snitching is such an important part of law enforcement, even the perplexed courts have to put up with the whims and infinitely variable inconsistencies of the Department of Justice.

The Kaye decision is a landmark; and, if followed by other courts, it could have major repercussions on the Government's "exclusive and absolute" power to determine the fate of cooperating defendants.  In this case, although there was the usual joint task force of Federal and State officials, the Government took the disingenuous, but common, position that the defendant was not entitled to a downward sentencing departure because he cooperated primarily with Nassau County law-enforcement officials.  The defendant then asked the district court (Judge Mishler) to grant him a downward departure, pursuant to U.S.S.G. § 5K2.0 based on his assistance to the Nassau officials.  Judge Mishler refused to grant such a departure on the grounds that he lacked the authority to do so; and, on appeal, the Second Circuit initially affirmed in a decision reported at U.S. v. Kaye, 65 F.3d 240 (2nd Cir. 1995).

The defendant then filed a petition for a rehearing.  The case promptly fell into a judicial limbo: nothing happened for more than two years.  Finally, the Court realized the case had been in limbo when Judge Winter readily acknowledged that the long delay in ruling on the petition was "entirely" his responsibility due to his failure to keep track of whether the case was still pending.  It is often said that it takes a big person to admit a mistake.  Consistent therewith, this time around, the same panel reconsidered the merits of defendant's argument and reversed its earlier decision.  Over the strong dissent of Judge Van Graafeiland, the Court endorsed in principle a downward departure under § 5K2.0, based on the defendant's cooperation with local law enforcement officials.

The essence of the Court's decision was that the term "offense" as used in § 5K1.1 "is properly interpreted to refer only to federal offenses and that § 5K1.1 addresses assistance only to federal authorities."  That factor, coupled with the "tension" between Federal and State law enforcement authorities, led the court to conclude that the Federal Government is "ill-suited" to evaluate a defendant's cooperation with local authorities.  Thus, concluding that Judge Mishler was wrong when he stated that he lacked the authority to grant a sentence reduction pursuant to § 5K2.0 on the basis of cooperation with state and local authorities, the Court remanded the case back to Judge Mishler with instructions to consider a departure on the basis of the defendant's cooperation with such local law enforcement authorities.

As can be expected, the decision infuriated the Justice Department, and it has already filed for an en banc rehearing.  The Justice Department simply cannot stomach the idea that it might have to share any sentencing authority and discretion with an underling local county law enforcement department.  Such a ruling strikes at the very heart of its "exclusive and absolute" power and autonomy that was casually affirmed in the Campo case.  Because of the importance of this decision, we will soon be posting on the Briefs and Motions Section of our legal research center on the Internet a copy of the brief filed in this case by Attorney Allan Sturim of Kew Gardens.

Speaking of Government misconduct, this case gives one scary example of how far some prosecutors will go to achieve a conviction - even if it means fabricating crimes and deliberately withholding material exculpatory evidence.  In this case, William Talley was one of a number of defendants who were jointly indicted and convicted for running a major drug organization in Fayetteville, North Carolina from 1988 to 1994.  The leader of the gang began cooperating with the Government immediately after his arrest; and he openly admitted that he "was cooperating with the Government to avoid a life sentence."  He became the Government's main witness against Talley, providing the "only" evidence that Talley had ever possessed drugs, and providing the "key" evidence of Talley's participation in the drug conspiracy.  (Id., at 301).

Perhaps concerned about the paucity of its evidence against Talley, the Government decided to take what the Fourth Circuit described as "a deliberate, calculated decision to assert facts not in evidence in order the divert the jury from the real issues in the case."  (Id., at 302).  Based solely on some very vague testimony from one of its witnesses that Talley had, one day, "shot at" a car after the driver had allegedly snatched some drugs from Talley, the Government decided to create a murder and to accuse Talley of being the murderer.  Shrewdly, it waited till all the evidence had been presented and until Talley no longer had any opportunity to present any rebuttal evidence or to cross-examine the Government's witnesses about the alleged shooting.  Then it pounced.  During its closing and rebuttal arguments to the jury, it repeatedly told the jury that Talley had "shot [a man] dead."  With those words ringing it its ears, the jury quickly convicted Talley on all counts.

It didn't matter that the Government's witnesses weren't even sure whether the fleeing car had been hit by any bullets.  It didn't matter that there was no evidence that the driver had been hit by any bullets.  It didn't even matter that there was no evidence that a body had been recovered.  Indeed, as the Court observed, "there was no hint of what had become of the driver" who was allegedly shot.  And it didn't matter that Talley had never been charged with, or indicted for, the murder.  There was, after all, a good reason for that.  As the Court icily explained, at the very time that the prosecutor was accusing Talley of committing the murder, he knew that someone else had already been convicted of murdering the very same man!  That little fact was never disclosed to the jury or to defense counsel; and Talley's lawyer never learned about it till after trial.

This wasn't the typical case where the prosecutor could argue that his statement was an "honest mistake", made in the heat of a lengthy trial; this trial lasted only eight hours.  And this wasn't the type of case where the Government could pull its usual ploy and argue that the false accusation should be excused because it was too isolated to be prejudicial, especially in light of the rest of the "overwhelming" evidence against the defendant; the prosecutor's argument was "prominent and thoroughly developed" (id., at 300) - and all the evidence against him came from the lips of witnesses who "were aiming to get a lighter sentence by cooperating and testifying."  (Id., at 301).  Of course, in pitching its murder argument, the prosecution was greatly assisted - if not bolstered - by the astonishing actions of the trial court (Judge Boyle) who repeated overruled all of the defendant's objections to the prosecutor's unsupported and false allegations.

When the case was appealed to the Fourth Circuit, it concluded that the prosecution's argument was a "significant diversion" that was "extraneous and indefensible overkill that we cannot write off as harmless. . . . [T]he risk is too great that Talley was convicted because the jury thought he was a murderer, a reason wholly irrelevant to his guilt or innocence on the charges in the indictment."  (Id., at 302).  Thus, the Court reversed Talley's convictions on all counts and remanded the case for a new trial.  Sadly, there was not a word of condemnation about the judge's conduct; and the prosecutor will probably soon be elevated to run the Department of Justice's Office of Professional Responsibility.

This case is noted because of its comprehensive review of the concept of "proportionality" when examining claims that the Excessive Fines Clause of the Eighth Amendment bars a criminal forfeiture of property.  In this case, claimants Matthew Enoch and Deana Lyons pled guilty in November, 1995 to an Illinois charge of unlawful production of marijuana.  Following a joint investigation by State and Federal authorities, the couple was caught growing 85 marijuana plants in their basement.  As part of their plea agreement, the couple agreed to pay restitution, fines, and costs in the amount of $6,298 and to forfeit certain unspecified property seized during the search of their house.

In January 1996, the Feds filed for a civil forfeiture of the couple's house (valued at some $120,000), pursuant to 21 U.S.C. § 881(a)(7), on the grounds that it had been used to commit a felony drug crime.  The couple then filed a motion to dismiss the civil forfeiture on the grounds that (a) they had been mouse- trapped by the DEA agent who participated in the State investigation by leading them to believe that the penalties imposed in the State criminal proceedings would be the only penalties they would receive; and (b) the forfeiture would violate the Eighth Amendment principles of proportionality by imposing an excessive fine.

The Court quickly dismissed both claims.  On the first issue of whether the DEA agent had laid a trap for the claimants, it cited, of course, the long-established rule that two separate sovereigns are free to prosecute a defendant for the same crime.  Citing U.S. v. Fuzer, 18 F.3d 517 (7th Cir. 1994), it did acknowledge the possibility, at least in theory, that one jurisdiction could formally "adopt" the prosecution of another jurisdiction in such a way as to preclude it from bringing its own subsequent and successive prosecution on the same grounds.  However, it also concluded that any such "adoption" would require the consent of the Federal Government, or at least that of a state officer acting as the Federal Government's agent.  (Id., at 464).  In the end, however, the Court ruled that the claimants' argument was built on "quicksand" because they failed to present any evidence "suggesting a promise, either explicit or implicit, on the part of the United States."  (Id.)

The more substantive argument dealt with the claim that the crime of growing a mere 85 plants of marijuana did not justify a forfeiture of a house worth $120,000.  The Government countered by citing Justice Scalia's concurring opinion in Austin v. U.S., 509 U.S. 602 (1993) where he suggested that the sole focus of the inquiry should be upon the connection between the confiscated property and the crime committed, ignoring entirely the relation between the value of the property and the severity of the property.  Essentially, the Government argued that the Seventh Circuit had adopted Justice Scalia's "instrumentality" approach and had rejected a "proportionality" test, when it decided U.S. v. Plescia, 48 F.3d. 1452 (7th Cir. 1995).  The Court rejected such a broad reading of Plescia; and observed that to date only the Fourth Circuit, in U.S. v. Chandler, 36 F.3d 358 (4th Cir. 1994) has adopted Justice Scalia's "instrumentality" approach as the sole inquiry in forfeiture cases.  It observed that the Second, Third, Eighth, Ninth, Tenth and Eleventh Circuits have adopted tests that combine both instrumentality and proportionality inquiries; that the Sixth Circuit has addressed the question but, to date, it has declined to adopt any formal standard; and that the First, Fifth and D.C. Circuits have not yet ruled on the issue.  (Id., at 465).

In the end, the Seventh Circuit opted for the combined test.  However, it still refused to dismiss the forfeiture case at issue because "the claimants utterly failed in the district court to present evidence showing that the forfeiture was disproportionate to the crime they had committed."  (Id., at 466).  Thus, the claimants lost their house first because they naively believed that the Federal Government would ever be satisfied with penalties of only $6,000; and, second, because they failed to present the type of evidence that would support their claim of an excessive fine under the Eighth Amendment.

This case is significant because it helps to clarify some of the legal principles that apply to jury instructions that are given when a jury appears deadlocked.  Such instructions are commonly called "Allen-charges", a name derived from Allen v. U.S., 164 U.S. 492 (1896), and, as the Court in this case noted, they are also often referred to as "dynamite charges" which can prejudice a defendant in a number of ways, so they must be used with "great caution, and only when absolutely necessary." (Id., at 197).

The defendant in this case was tried on both a drug conspiracy charge and an underlying aiding and abetting charge.  Several times after it retired to consider a verdict, the jury sent the judge notes indicating that it was unable to reach a unanimous verdict.  Ultimately, the trial judge (Judge Fusté) gave a modified Allen instruction based in part on the Pattern Criminal Jury Instructions for the District Courts of the First Circuit.  (Both the Pattern Instructions and the actual charge given to the jury are set forth in the text of the decision at pages 194-96).  Immediately after giving the charge, the court informed counsel that the charge given was the suggested Pattern Instructions.  The defendant raised no objection to those instructions at that time; and, within a short time after they were given, the jury resolved its doubts and convicted the defendant on the conspiracy charge, but acquitted him of the underlying substantive charge.

The defendant then compared the instructions that were given with the Pattern Instructions and determined that they were different, principally because they failed to advise the jury that it had the right to fail to agree on a verdict.  He filed a motion for a new trial and the district court granted that motion, concluding that it had "failed to communicate the notion that the jury has a ‘right' to deliver an inconclusive verdict."  (Id., at 198).

The Government appealed, and on appeal, the First Circuit affirmed.  Citing its decision in U.S. v. Manning, 79 F.3d 212, 222 (1st Cir. 1996), the Court emphasized that any Allen instructions should include three elements to ameliorate their potentially prejudicial effect, namely: "(1) members of both the majority and the minority should reexamine their positions, (2) a jury has the right to fail to agree, and (3) the burden of proving guilt beyond a reasonable doubt remains with the government."  (Id., at 197).  It then cited a number of cases in which it had determined that "where the substance of [those three] elements [were] not communicated to the jury, this court has found reversible error without more."  (Id., at 197-98).

Of particular interest, the Court criticized the "coercive" nature of the instructions that were given.  Judge Fusté told the jury that it was their "mission" to "try to resolve this case. . . . That is what the system requires" and that "I am going to beg you to go back and give it a try because I am pretty sure that you can."  He also emphasized that the jury's indecision "is no verdict".  The First Circuit commented that those statements "infer that it would be reasonable, perhaps even expected, for the jurors to come to a decision on the evidence submitted, and that our system of justice required and depended on their arriving at such a decision."  It then stated that "this court has expressly disapproved of statements that ‘directly imply that it would be reasonable for the jury to reach a decision on the evidence before them'."  (Id., at 198).

The Government contended that the defendant's failure to object in a timely manner indicated that the charges were not erroneous.  The Court rejected that contention, noting that the parties were not provided with a copy of the draft charges before they were issued.  The Government also argued that any error that occurred was not so "plain."   Again, the First Circuit disagreed.  Applying the Supreme Court's four-step analysis of plain error in U.S. v. Olano, 507 U.S. 725 (1993), it held here that there was error; that the error was "obvious" or "clear under current law"; that the error had affected the defendant's substantial rights; and that the failure of the court to take notice of that error would have resulted in a miscarriage of justice.

A careful reading of this case will make any careful defense lawyer think twice about proffers: first about whether a client should even consider making a proffer; and, second, whether the traps that are inherent in the "take-it-or-leave-it" proffer agreements are just too risky to accept.  Certainly, as will be seen,  even the clearest of proffer agreements can be twisted and turned with the most tortured semantical nuances to accomplish just about whatever the Government wants - particularly if it wants to punish a defendant for conduct it deems to be offensive.

In this case, a joint task force identified Jose and Maria Verona as principals in a cocaine distribution ring and they were indicted and arrested.  They agreed to cooperate with the Government, and Maria signed a proffer agreement, agreeing to give the Government information about the conspiracy in return for a promise to consider leniency.  The agreement provided for "use immunity", specifying that none of the statements or information provided by her would be used against her in any criminal proceeding, although it reserved the right to pursue investigative leads derived from her proffered statements and to use any derivative evidence against her.

In her immunized debriefing, she correctly identified a drug dealer who the Government knew only as "Carlos" and whom it had assumed was a man named Rolando Caceras.  In fact, the real "Carlos" was a man named Carlos Hechavarria.  Notwithstanding the Government's promise of immunity, and Maria's satisfactory performance of her side of the agreement, the Government took the information learned from her, shared it with the Grand Jury, and secured a superceding indictment, which redefined the conspiracy charge against her to correctly identify the fourth conspirator, and added an additional charge against her.

Shortly after that Jose Verona was murdered for cooperating with the Government, and the terrified Maria Verona, and her children, were taken into protective custody.  The Government then insisted that Maria fulfill her deceased husband's commitment to testify at trial.  When she refused, the Government rescinded her plea agreement and then vindictively proceeded to prosecute her for the very crimes she had admitted in her debriefing under the protective cloak of her proffer agreement.  Ignoring the murder of Maria's husband and her fear for the lives of herself and her children, the Government crassly and quickly turned to the highly-motivated and equally vindictive Hechavarria - whom it never would have known about except for Maria's "immunized" identification - and it persuaded him to introduce the very testimony that the Government was precluded from using directly under the express terms of the proffer agreement.  Maria was, of course, promptly convicted and sentenced to eight years in prison.

On appeal, she contended first that her indictment should have been dismissed because the grand jury that issued the superseding indictment heard her immunized statements; and, second, that her conviction should be reversed because it was obtained in violation of the letter and the spirit of her proffer agreement.  (For the benefit of our subscribers, copies of Attorney Benjamin Waxman's brief on these important issues will be posted on the Briefs and Motions page of our Internet site.)  In a brief discussion of the first issue, the majority somehow concluded that the use of the proffer testimony did not prejudice her.  On the second issue, Maria argued that Hechavarria should never have been allowed to testify against her, indirectly using precisely the same evidence for which she had been promised immunity.  Dancing through a maze of not-so apparent distinctions and hyper-technical subtleties, the majority concluded that the Government had dishonored neither the plain language nor the spirit of the proffer agreement - a conclusion that caused Judge Kravitch to gasp.  She argued in her dissent that, unlike common proffer agreements which bar only the use of immunized statements, this proffer agreement barred the Government from using Maria's "statements or information" against her.  She then continued that "Absent [Maria's] immunized statement, the government had no independent means of securing Hechavarria's indictment and thus no means of obtaining his testimony"  (Id., at 717); and that to conclude otherwise was to permit the Government to do indirectly what it was prohibited from doing directly.

All of which just goes to confirm that, when convictions are at stake, never, never, ever trust the plain meaning of what's written on a piece of paper!

This multi-issue habeas case is noted principally because of its affirmation of an important ruling on so- called Batson-challenges (see, Batson v. Kentucky, 476 U.S. 79 (1986) to race-related peremptory challenges when the defendant is not of the same race as the excluded jurors.  In this case, District Judge Platt overruled defense objections to the prosecution's removal of African-American jurors from the jury panel, on the grounds that the petitioner was "obviously not black" and therefore could not raise a Batson challenge.  Citing the Supreme Court's decision in Powers v. Ohio, 499 U.S. 400, 402 (1991), the Court reversed.  It emphasized that a defendant may object to race-based exclusion of jurors "whether or not the defendant and the excluded jurors share the same race."  Thus, it remanded the case back to the district court for a determination whether the Government had valid race-neutral explanations for its removal of the jurors in question; and, citing Brown v. Kelly, 973 F.2d 116, 121 (2nd Cir. 1992), it specifically directed that if the passage of time impaired the court's ability to make a reasoned determination of the prosecutor's state of mind when the jury was selected, the district court must order a new trial.

 In a recent case in which the Government did not dispute that the defendant had been fraudulently induced to enter into a plea agreement through misrepresentation, Judge Samuel Kent took the Government to task by observing:  "And this happens with some frequency, where there is lots of talk of Section 5K1.1 motions at the time of plea, and then that magically disappears at the time of sentencing.  . . . [T]his is an epidemic problem that's occurring in this court. . . . Every time I take a plea with the United States Attorney's office, there's lots of discussion about 5K1.1 at the time of taking the plea and then once in a while a Section 5K1.1 motion is, in fact, filed, but much more often than not there isn't. . . . [ ] I'm troubled by the notion that a defendant is seemingly induced to pleas on the implied promise of a motion which is then not forthcoming at the time of sentence."  United States v. Amaya, 111 F.3d 386, 388 n. 4 (5th Cir. 1997).
 

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

Cases in the Federal Reporter:              This week:     31       Year to date:         436
Cases in the Federal Supplement:         This week:     27       Year to date:         242