Vol. 5, No.
24 As Published in the Advance Sheets
on June 15, 1998
Copyright © 1998
Highlights of this Issue:
Supreme Court
Cases
This is an important Fifth Amendment decision, although its import was little-noted in the press. The Supreme Court has reversed a decision of the Second Circuit, reported at U.S. v. Baysys, 119 F.3d 122 (2nd Cir. 1997) (Balsys I), which was originally discussed in the Sept. 8, 1997 issue of Punch and Jurists.
The defendant in this case, a suspected wartime Nazi collaborator, was an 84 year old Lithuanian who had lived in the United States for some 36 years. As part of an investigation seeking to deport him, he was served with a subpoena by the Department of Justice, which charged that the defendant had lied on his visa application papers about his activities during World War II. The defendant objected to the subpoena, arguing that he was entitled to assert his Fifth Amendment privilege against self-incrimination because his answers could subject him to prosecution by the governments of Lithuania, Germany and Israel.
The district court ruled that Balsys could not assert any Fifth Amendment privilege because "[a]lthough Balsys does indeed have a real and substantial fear of prosecution by Lithuania and Israel, the laws of the United States should not be sacrificed where the government has established an independent and legitimate need for his testimony." U.S. v. Balsys, 918 F.Supp. 588, 599 (E.D.N.Y. 1996). The Second Circuit disagreed with that analysis and emphatically rejected the contention that the defendant could have waived his privilege against self-incrimination when he filled out his visa application in 1961 and answered questions about his activities during World War II. Observing that when he completed his visa application he had no Fifth Amendment rights, the Court concluded that: "It is problematic, to say the least, to suggest that Balsys could have implicitly waived constitutional rights that he did not yet possess." (Id., at 140).
In a concurring opinion, Judge Block observed that it is "inappropriate to ‘bend the Constitution solely to promote foreign policy objectives of the executive branch, however laudatory, by compelling the cooperation of a witness in a proceeding that does not have as its fundamental purpose the vindication of the domestic laws of the United States'. In my opinion, the privilege against self-incrimination is too principled a proposition to be dependent upon the quantification of governmental interests and the unpredictability of ad hoc adjudication." (Balsys I, id., at 141).
A 7 to 2 majority of the Supreme Court was unpersuaded by Judge Block's logic. Essentially, relying principally on its decision in Murphy v. Waterfront Commission of N. Y. Harbor, 378 U.S. 52 (1964), the Court held that the Fifth Amendment applies only to criminal proceedings brought by the Federal Government and the States - but not to criminal proceedings brought by a foreign sovereign. It also suggested that deportation is a civil proceeding and that the defendant had no basis for claiming the privilege in civil immigration proceedings.
Justice Ginsburg dissented, stating "just as our flag carries its message . . . both at home and abroad, so does our Constitution and the values it expresses." Justice Breyer also dissented. He found no historical precedent for concluding that the Fifth Amendment privilege was limited to domestic prosecutions; and he noted that the majority, as well as the Government, openly feared that application of the privilege to foreign prosecutions might unreasonably interfere with the work of law enforcement. However, after commenting that "surmountable practical concerns should not stand in the way of constitutional principle" he concluded that the majority's decision "illustrates the danger of copying one's precedents directly from the brief of counsel."
Arbitrary and selective sentencing enhancements continue to be one of the horrors of modern day criminal law. As this decision shows, they enable the courts to increase a defendant's sentence beyond the maximum possible sentence for the crime of conviction even though the factors supporting the enhancement were never proven by proof beyond a reasonable doubt, were never presented to a jury, were established in violation of the Rules of Evidence and the Fourth Amendment, and now, were even established in violation of the Fifth Amendment's Double Jeopardy Clause.
Justice Scalia summarized the essence of the issue presented to the Court in his strong dissent. He explained that "Petitioner Monge was convicted of the crime of using a minor to sell marijuana, which carries a maximum possible seven years under California law. He was later sentenced to eleven years in prison, however, on the basis of several additional facts that California and the Court have chosen to label ‘sentence enhancement allegations'. [The extra four years were attributable to a different, prior crime of assaulting a victim with a stick.] Monge [however] was functionally acquitted of that crime when the California Court of Appeal held that the evidence adduced at trial was insufficient to sustain the trial court's ‘enhancement' findings [in the instant case." Undeterred by that fact, California asked for a second chance to retry Monge on the old assault charges. The trial court refused to allow that retrial on the grounds that it would violate the Double Jeopardy Clause. The State Supreme Court reversed the double jeopardy ruling holding that the Double Jeopardy Clause does not extend to noncapital sentencing proceedings. A divided Supreme Court agreed, essentially holding that sentencing enhancements are not additional punishment for the previous offense; rather, citing U.S. v. Watts, 519 U.S. 148, 154 (1997) "they act to increase a sentence ‘because of the manner in which [the defendant] committed the crime of conviction."
Justice Scalia responded: "However California chooses to divide and label its criminal code, I believe that for federal constitutional purposes those extra four years are attributable to a conviction of a new crime. . . . Giving the State a second chance to prove him guilty of that same crime would violate the very core of the Double Jeopardy prohibition."
The principal (and disturbing) issue raised in this major drug prosecution case was the defendant's claim that the Government's payment of witnesses, grants of immunity, and plea bargaining so distorted the adversarial process at his trial that the proceedings were rendered fundamentally unfair. It didn't take the Court long to predict the outcome of this case and justify its decision. The second paragraph of its decision stated: "For approximately two decades, Juan Garcia Abrego was the hub of a narcotics smuggling syndicate of staggering dimension." (Id., at 147).
The defendant contended that the Government's extensive use of incentives such as motions for downward departure pursuant to U.S.S.G. § 5K1.1, sentence reductions pursuant to Rule 35 of the Fed.R.Crim.P., immigration permits, cash payments, and grants of immunity from prosecution to motivate many Government witnesses to testify denied him his constitutional right to due process. He argued that, because he was denied the opportunity to offer similar incentives to obtain testimony, "the adversarial process was skewed to an exceptional degree in the government's favor and that his constitutional right to due process was thereby violated." (Id., at 151). Perhaps the most persuasive argument he made was his contention, shared by many members of the bar, that "due process, fundamental fairness and an accused's meaningful right to some parity in the compulsory process of witnesses will [not] tolerate a system that permits only one side of the adversary process to utilize . . . non-reciprocal incentives to entice witnesses." (Id., at 152). [The core of that argument is the inherent unfairness of 18 U.S.C. § 6003 - a statute that grants to the Government alone the uninhibited power to grant immunity to a witness. Since the courts have generally agreed that they have no power to order the Government to grant comparable immunity to defense witnesses under § 6003, the Government effectively has the power to deprive defendants of valuable testimony from witnesses who are fearful of testifying for the defense.]
The Court quickly, and with almost no discussion, dismissed these claims as meritless. In support of its conclusion that high payments to witnesses do not skew the scales of justice, the Court cited U.S. v. Cervantes-Pacheco, 826 F.3d F.2d 310, 315 (5th Cir. 1997) (en banc), where the Fifth Circuit held that "[n]o practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence." In support of its conclusion that the Government's sole ability to award immunity in exchange for testimony does not create an uneven playing field, the Court simply noted that way back in 1982 it had rejected a "virtually identical argument."
Neither of those rationales really addressed the validity or the substance of the defendant's claims; and thus it was not surprising that the Court also did not quote from Judge Goldberg's strong condemnation of bartered testimony in the initial Cervantes-Pacheco case. In that decision, reported at 800 F.2d 452, 460-61 (5th Cir. 1986), Judge Goldberg wrote: "One of the basics of our jurisprudence is the search for truth, and by this is meant not the purchased truth, the bartered-for truth, but the unvarnished truth that comes from the lips of a man who is known for his integrity. . . .The government in its prosecutorial efforts should be like Caesar's wife, above or beyond reproach. . . . It may be that we must live with informers. It may be that we must live with bargained-for pleas of guilty. But we do not have to give a receipt stamped 'paid in full for your damaging testimony' or 'you will be paid according to how well you can convince the jury even though it may be in the face of lies'. It is true that the precedents we cite are timid in their approach to this problem, fearful that somehow the condemnation of contingent fee arrangements will destroy our criminal justice system. If that be true, then our system of finding the truth is pallid and weak and not to be trusted. Trustworthiness is a keystone and a hallmark of any judicial system that seeks recognition for its role in a civilized society. The time has come to announce boldly and firmly that our juridical search for truth cannot be reconciled with the virtual purchase of perjury." (For more on the subject of the questionable and pernicious value of "bartered testimony" - and an interesting example of how the courts sometimes answer the call for bold and firm responses to the uses of such evidence - see the Quote of the Week below.)
While not labeled as such, this case raises a prime example of the extremes to which the Government will go to increase the number of convictions against a defendant. The defendant Delagarza was charged with both conspiracy to distribute marijuana and possession with intent to distribute. He was convicted on both counts and he received concurrent 120 month sentences for each conviction. He appealed both convictions on the grounds of insufficient evidence; and, perhaps because its ruling made absolutely no difference in the sentencing results, the Court agreed that the conviction for possession should be reversed due to insufficient evidence.
The possession charge was actually structured under an aiding and abetting theory - that is, Delagarza aided and abetted a co-defendant in possessing marijuana with intent to distribute it. That theory was used because there was no evidence that Delagarza ever possessed any marijuana. The Government however contended that the co-defendant had "possession" of a 4½ pound brick of marijuana. The only evidence to support that possession claim was that an undercover agent "handed [the co-defendant] a sample of marijuana . . . for his inspection" during negotiations. (Id., at 140). The Court concluded that "no rational trier of fact" could have found that Delagarza that could be convicted of aiding and abetting a possession charge. "The simple fact is that [the co-defendant] never possessed the 4½ pound sample. . . . [The co-defendant's] mere inspection in this instance did not constitute possession, especially when [the co-defendant] did not purchase the brick and returned it to the undercover agent." (Id.).
This is an appalling tale about one of those mythical hanging judges from Texas, State Judge Larry Baraka. In 1986, the petitioner, Jose Gonzales, was charged with three counts of aggravated robbery. He pled guilty and Judge Baraka sentenced him to a "deferred adjudication probation" for five years. He also warned Gonzales that if his probation was revoked he would sentence Gonzales to life imprisonment and would object to any parole. (Id., at 762). That practice was apparently consistent with Judge Baraka's custom and practice in other deferred adjudication cases; and, on this habeas appeal, Judge Kendall pointedly observed that: "This is not the only case where Judge Baraka predetermined punishment prior to a probation revocation hearing. At least two state appellate courts and one federal district court have criticized the judge for his propensity to prejudge cases without listening to the evidence." (Id., at 764, n. 3).
In 1988, Gonzales violated his terms of probation in three ways: (a) he failed to report to his probation officer for three months; (b) he did not pay his probation fees for nine months; and (c) he did not make any installment payments on his fine for nine months. For those heinous crimes, Judge Baraka promptly clapped Gonzales in prison for life. Ten years later, after exhausting his state remedies, Gonzales sought help from the Federal courts through a petition for habeas corpus.
Judge Kendall granted the writ "unless petitioner is afforded a new revocation hearing before a different judge." (Id.). Citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) he noted that "due process guarantees a defendant the right to a hearing before a ‘neutral and detached hearing body'." (Id., at 762). He then concluded that: "The record in this case clearly shows that Judge Baraka was not neutral, detached or impartial. . . . Judge Baraka interrupted petitioner's testimony and verbally taunted him with questions about his ‘toughness'. . . . These facts lead to the inescapable conclusion that the judge predetermined punishment in this case." (Id., at 763-64).
No jail time for three aggravated robberies - but life for failing to pay some installments on fines - and the poor bloke has already spent ten years in prison fighting that sentence. Wow!
We often wonder how the Founders would have written the Fourth Amendment had they been aware of the intrusiveness of some of the spying techniques of modern day law enforcement. The subject matter of this case was those "thermal imaging scanning devices" which permits the user to observe and record the activities of people from the infrared heat "signatures" they produce while behind closed doors. While some of the early versions of these devices were "unable to reveal . . . intimate details", this Court noted that "more powerful and sophisticated thermal imagers are being developed which are increasingly able to reveal the intimacies that we have heretofore trusted to take place in private" and that such devices "strip[ ] the sanctuary of the home of one vital dimension of its security: ‘the right to be left alone' from the arbitrary and discretionary monitoring of our actions by government officials." (Id., at 1254).
The simple issue presented in this case was whether thermal image scanning is a search within the meaning of the Fourth Amendment. Surprisingly this was an issue of first impression for the Ninth Circuit, although a number of other Circuits have previously addressed the same issue.
The defendant in this case was convicted of growing marijuana in his home. Although a warrant was ultimately obtained, the basis for the warrant was a thermal image scan of the defendant's home which showed abnormally high levels of heat generated by the high intensity lights used to grow the marijuana. The defendant argued that the initial use of the scanning device constituted an improper warrantless search that violated the Fourth Amendment and that all the evidence subsequently seized was the tainted fruit of an illegal search and should have been suppressed.
To resolve the question presented, the Court applied the two-prong test enunciated by the Supreme Court in Katz v. U.S., 389 U.S. 347 (1967): does the defendant have a subjective expectation of privacy, and is that expectation one that society is prepared to acknowledge as reasonable? To date, most of the cases that have addressed this question have determined either that the defendants have failed to manifest a subjective expectation of privacy in the excess heat generated by their bodies (see, e.g., U.S. v. Robinson, 62 F.3d 1325 (11th Cir. 1995)); or that, because of technical inadequacies of the thermal heat imager used, the scan of the defendants' homes did not reveal enough intimate details to raise constitutional concerns (see, e.g., U.S. v. Ishmael, 48 F.3d 850 (5th Cir. 1995)).
Here, citing the Tenth Circuit's conclusion that "our follow circuits have, we think, misapprehended the most pernicious of the [thermal imager] device's capabilities" (U.S. v. Cusumano, 67 F.3d 1497, 1504 (10th Cir. 1996)), the Ninth Circuit emphatically concluded that "the details unveiled by a thermal imager are sufficiently ‘intimate' to give rise to a Fourth Amendment violation." (Id., at 1254). Thus it vacated the conviction, holding that the warrantless use of the thermal imager violated the Fourth Amendment; and it remanded the case for a new trial.
We originally reported on this civil rights suit for damages case in the May 19, 1997 issue of Punch and Jurists. Essentially, a SWAT team of Federal and State law enforcement personnel invited a newspaper reporter and photographer seeking a story to accompany the officers during the execution of an early morning search warrant. "The police allowed the reporters to enter the private home of Dominic Jerome Wilson's parents without their permission, to observe the execution of the warrants issued to the police, and to photograph the Wilsons in a state of undress and under humiliating conditions." (Id., at 119). When the police finally ascertained that the person they were seeking (the Wilson's son) was not present in the house, they left. The Wilsons subsequently brought a lawsuit for damages, charging that their Fourth and Fourteenth Amendment rights had been violated. The officers quickly moved for summary judgment on the grounds of qualified immunity, but the district court declined to grant the motion with respect to the claim that the police had violated the Wilsons' Fourth Amendment rights by inviting the reporters to enter the Wilson's home.
The police officers appealed that ruling, and the Fourth Circuit, in a decision reported at 110 F.3d 1071 (4th Cir. 1997) (Wilson I), held that "Because in April 1992 it was not clearly established that permitting media representatives to accompany law enforcement officers into a private residence to observe and photograph their attempt to execute a warrant would violate the homeowner's constitutional rights, we hold that these officers are entitled to qualified immunity." (Wilson I, id., at 1076). Subsequently, the full court decided to re-hear the case en banc. In the instant decision, a slim majority of the full court affirmed the decision in Wilson I; but that decision evoked a strong and vigorous dissent from Judge Murnaghan and four other judges; and, as is often the case, it is the dissent that is most interesting.
With unusually blunt words, Judge Murnaghan called the majority's decision "speculative and disingenuous at best" (id., at 125) and wrote that it was based on "posthoc rationalizations" that departed from existing precedent. (Id., at 119). He particularly labeled as "absurd" the majority's creative suggestion that the reporters had been brought along to afford the police some measure of "protection." Pure and simple, he wrote, "the police brought the team [of reporters] along in the hope of getting some good press; that is all" (id., at 125); and the majority's decision "seeks to convert qualified immunity to absolute immunity." (Id., at 120).
In support of his conclusion that the majority had plainly departed from existing precedent, he was also highly critical of the majority's reliance on two unpublished district court decisions which had held that inviting the news media to observe the execution of a search warrant did not violate any federally protected right. Citing Hogan v. Carter, 85 F.3d 1113, 1118 (4th Cir. 1996), he noted that: "We have previously observed that ‘[s]ince unpublished decisions are not even regarded as binding precedent in our circuit, such opinions cannot be considered in deciding whether particular conduct violated clearly established law for purposes of adjudging entitlement to qualified immunity."
Judge Murnaghan also emphasized that "The
Fourth Amendment confines an officer executing a search warrant strictly
within the bounds set by the warrant." (Id., at 123).
In the end, he wrote: "Because no reasonable police officer could have
believed that inviting the reporters into the home or allowing the photographer
to take pictures either was authorized by the warrant or was reasonably
necessary to accomplish its legitimate law enforcement purposes, the police
officers' actions amounted to unreasonable searches and seizures in violation
of clearly established Fourth Amendment law. I vigorously dissent."
(Id., at 120).
This case is noted not just because the Court reversed a drug conviction on the basis of lack or probable cause to detain the motorist in the first instance, but also because of the Court's open criticism of the overly-used concepts of "drug source cities" and "drug source states" as the basis for the initial stop of the defendant. The Court found, inter alia, that (a) the fact that the defendant was traveling from California did not support a reasonable suspicion of criminal activity; (b) the fact that the police noticed no luggage and observed fast food wrappers in the passenger's compartment did not justify detention; and (c) the fact that the defendant was searching in a distant location for a job when similar employment opportunities existed in a closer proximity to one's residence did not give rise to a suspicion of criminal activity.
The more interesting analysis came on footnotes 2 and 3 on pages 1137 and 1138, where the Court examined the concepts of drug source states and cities. The Court, for example, noted that if all the drug source states were combined, the total population of those states exceeded 76 million people, or more than one-fourth of the country's total population. (Id., at 1113, n. 2). The Court tartly observed: "Clearly, the vast number of people coming from [those states] must relegate this factor to a relatively insignificant role." The Court also listed, in footnote 3, dozens of cases in which drug agents have attempted to designate a significant number of the largest cities and states as "drug sources" - including such preposterous claims as "the entire West coast" as well as Texas, Florida, Arizona, Colorado, Washington, New Jersey, and numerous cities in each of those states and more. (Id., at 1138, n. 3).
Punch and Jurists is pleased to announce that Carmen D. Hernandez, Esq. of the Federal Public Defender's Office in Washington, D.C. has made available to us a revision of her masterly study of Federal case law following the Supreme Court's decision in Koon v. U.S., 518 U.S. 81 (1996). That study, entitled "Downward Departures After Koon - A Fact Based Inquiry" has now been posted on our Web site at www.fedcrimlaw.com in both PDF format and WordPerfect format (for easy downloading).
"This type of arrangement creates perverse incentives for confidential informants. . . . [T]here is too great an incentive for informants to fabricate evidence and to maximize the amount of drugs involved.
"The government's conduct in this case is reminiscent of the infamous 'Reward Statutes', enacted by the English Parliament in 1692, which promised monetary rewards - so called 'blood-money certificates' - to those who would provide information leading to the conviction of criminals. This perverse structure was sharply criticized, and eventually abandoned. . . .
"When, as in this case, the government gives a confidential informant the authority to develop the crime and his monetary reward depends on getting people convicted and on the magnitude of the drug transaction, the informant has too great an incentive to fabricate evidence and distort the truth. . . .[T]here is too high a risk that the defendant will be tried on the basis of false information. . . . The inherent danger of basing a paid informant's compensation on the rate of convictions and the quantity of drugs is exacerbated when the government engages in 'sting operations', which accord the government almost exclusive control over the information relating to the criminal activity. The danger is further exacerbated where the party with the financial incentive is the person orchestrating the crime.
"When looking at this operation as a whole and at the behavior of the government agent, which ranged from improper conduct to outright criminal acts, it is undeniable that the government's conduct was outrageous." United States v. Solorio, 37 F.3d 454, 458-60 (9th Cir. 1994).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal
Reporter:
This week: 31
Year to date: 874
Cases in the Federal
Supplement: This
week: 23
Year to date: 526