Vol. 6, No. 14 As Published in the Advance Sheets on April 5, 1999
Highlights of this Issue:
Leading Case:
Miscellaneous Issues:
U.S.S.G. and Sentencing Issues:
United States v. Scheer, 168 F.3d 445 (11th Cir. 1999) (Judge Birch)
This is not your average case of outrageous prosecutorial misconduct. It has at least four features that make it stand out as a significant case in American jurisprudence. First, A.U.S.A. Lothar Genge clearly exhibited a brand of insolence that - even for prosecutors - is astonishing. Second, the case proves beyond doubt the absolute impotence of the Justice Department's infamous Office of Professional Responsibility (OPR). Third, the case may well represent the high-water mark of, and the turning point for, an agency that has, for far too long, treated with contempt Justice Sutherland's admonition that in a criminal case it is not that the Government shall win but that "justice shall be done." (See the Quote of the Week, below). Finally, the Eleventh Circuit's courageous ruling casts an important - if oft-forgotten - light on the power of the courts to deal with abuses that undermine our confidence in the outcome of trials.
This case involved a prosecutor's dream - the continuation of a never-ending, take-no-prisoners, career- making prosecution. This case really began in the mid-1980's with the demise of the Sunrise Savings and Loan Association (Sunrise) in South Florida. The failure of that bank led to several prosecutions. The first prosecution, reported at U.S. v. Jacoby, 955 F.2d 1527 (11th Cir. 1992), involved Jacoby, who had served as the President of Sunrise, and several other bank officers. Jacoby was convicted and sentenced to five years for numerous bank fraud crimes. After he was convicted, he began to cooperate with the Government, in exchange for which he received a substantial reduction in his sentence and a grant of immunity from future prosecution.
With the assistance of Jacoby, the Government next proceeded against three partners and one associate at the Philadelphia based law firm of Blank, Rome, Comiskey & McCauley (Blank Rome), one of whom (Michael Foxman) had founded Sunrise and had served for a time as its Chairman. Before trial, District Judge Hoeveler dismissed the single count against Foxman on the grounds that he had been prejudiced by a ten-year delay between the period that he ceased to have any connection with Sunrise and the date of his indictment. That decision was affirmed by the Eleventh Circuit in a decision reported at U.S. v. Foxman, 87 F.3d 1220 (11th Cir. 1996). A.U.S.A. Genge proceeded against the other lawyer defendants. However, one of them had his case severed for medical reasons. That left Kenneth Treadwell, another partner, and Dana Scheer, an associate, at Blank Rome, who were charged with some thirteen counts of bank fraud and related crimes.
Early on, Treadwell had been granted full immunity in the hopes that he would implicate other lawyers at Blank Rome. When Treadwell failed to give Genge the information he wanted, Genge, true to form, revoked Treadwell's immunity agreement and reinstated his indictment. At the conclusion of the ensuing four-month trial, Judge Hoeveler found that Genge had nullified Treadwell's immunity agreement in bad faith and had breached the terms of that agreement. Thus, he reinstated Treadwell's immunity and dismissed the indictment against him. (Id., at 458, n. 14).
Genge was left in an embarrassing and awkward position in his case against the remaining defendants, Treadwell and Scheer. His principal witness, Jacoby, was "a witness whose credibility was central to the prosecutorial effort here" - but Genge had already called Jacoby a "brazen perjuror" when Jacoby was sentenced. (Id., at 456). Moreover, Jacoby was still on probation at the time of the trial in the instant case - a factor that became critical to this case, as will be seen.
Undaunted and unbowed, Genge proceeded with a vengeance against Treadwell and Scheer. A lengthy and highly acrimonious trial ensued; and the defendants were convicted on some - but not all - of the counts - despite the Eleventh Circuit's evaluation that the evidence "was neither uniform nor overwhelming in showing that Scheer knowingly misapplied funds." (Id., at 455).
After fifteen years of fighting, Scheer was sentenced to a term of probation; and, as noted above, Treadwell's indictment was dismissed. It is also worth noting that, immediately following the trial, Treadwell's counsel asked the OPR to investigate the allegations of prosecutorial misconduct. Typically, that investigation was quickly shot down. As the Eleventh Circuit curtly observed: "The Justice Department declined to press criminal charges against the prosecutor." (Id., at 451). [We have learned that Scheer's counsel recently won a Freedom of Information Act suit against the Justice Department to disclose the basis for its refusal to press criminal charges; and we will watch that case carefully. In the meantime, we merely ask our frequently repeated question: Are there any circumstances under which the "whitewash-everything" OPR will take action against any prosecutor?]
That bring us to the instant decision. Scheer's counsel filed a motion for a new trial, raising numerous issues concerning the fairness of the trial, several of which related to alleged prosecutorial misconduct. In his post- trial order, Judge Hoeveler set aside the conspiracy convictions, after finding a variance in the indictment and the proof adduced at trial that substantially prejudiced the defendant. (Id., at 448). He also remarked upon "multiple instances of prosecutorial overzealousness and excess" and warned "we must never, however, sanction the excesses which result [from] unchecked enthusiasm - excesses which lead to justifications of the type presented [by the prosecution] here." (Id.). However, Judge Hoeveler refused to grant a new trial, concluding that even if the Government had committed misconduct by, inter alia, suppressing evidence, the other evidence against Scheer was "sufficiently compelling to convict [him]." (Id., at 452).
The Eleventh Circuit addressed only one of the many instances of prosecutorial misconduct that were alleged. Since it reversed the convictions on that ground alone, it decided that it was unnecessary to examine or even recite the many other examples cited by the defendant and by Judge Hoeveler. The one example it focused on was a lollapalooza. It involved an instance of prosecutorial intimidation of the Government's own key witness - Jacoby. Apparently, prior to trial Genge told Jacoby that if he didn't "come through", the FBI case agent "is going to put the cuffs on you and you are going to be out of there in 45 seconds." (Id., at 449). That threat - to revoke Jacoby's probation if he didn't help convict Scheer and Treadwell - was, of course, never disclosed to defense counsel.
The Eleventh Circuit concluded that the threat had "actually occurred"; and it pointedly noted that Genge had refused to testify at the evidentiary hearing, but that the "government has never argued that the incident did not occur." (Id., at 451). Clearly, Jacoby understood the import of the threat. During the evidentiary hearing that ensued, he acknowledged that he had "embellished" his testimony to "help" the prosecutors obtain a conviction in this case. (Id., at 449). The Eleventh Circuit likewise concluded that the clear import of what Genge had "intimated" to Jacoby was that any "failure to testify in a ‘cooperative' fashion might result in his return to prison." (Id., at 458).
The important legal significance of this case is that the Eleventh Circuit concluded that Judge Hoeveler had used the wrong legal standard in assessing both the "materiality" of the prosecutorial misconduct at issue and the "reasonable probability" of a different outcome. In short, while some instances of prosecutorial misconduct may be resolved on the basis of a harmless error "sufficiency of evidence" analysis, that is not the case when the error charged relates to the suppression of impeachment and exculpatory evidence. Citing both Kyles v. Whitley, 514 U.S. 419 (1995) and Hays v. Alabama, 85 F.3d 1492 (11th Cir. 1996), the Court held that "a showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal" and that "undisclosed evidence can require a new trial even if it is more likely than not that a jury seeing the new evidence would still convict." (Id., at 452).
Applying those rules to this case, the Court concluded that "Scheer need not prove that Jacoby in fact changed his testimony [as a result of the threat]. Scheer is also not required to show that, had the government not suppressed this evidence, other evidence in the case standing alone would have been insufficient to convict. The relevant inquiry, rather, is whether the suppression of this information undermines our confidence in this trial. . . . Although an evaluation of whether there is a reasonable probability of a different result may necessitate an examination of the other evidence presented at trial, the Supreme Court expressly has disavowed a simple ‘sufficiency of the evidence' test in the Brady/Bagley context [Brady v. Maryland, 373 U.S. 83 (1963) and U.S. v. Bagley, 473 U.S. 667 (1985)]." (Id., at 452) (Emphasis in original.)
In the end the Eleventh Circuit ruled: "[W]e are convinced that Scheer's knowledge of the incident . . . was material information that might have substantially undermined the critical value of Jacoby's testimony. As a result, the government's failure to communicate this information to Scheer effectively undermines our confidence in the integrity of the verdict. Had Scheer been able to use knowledge of this incident to impeach the credibility of this critically important witness, whose credibility had already been called into question by the Government, there is a reasonable probability that the outcome of the proceeding would have been different." (Id.)
Thus, some 15 years after the events in question occurred, Scheer's convictions were reversed and the case was remanded for a new trial. The unscathed Lothar Genge has resigned from the U.S. Atorney's Office. He is now a criminal defense attorney in Fort Lauderdale, Florida, resting on his statement that his threat was intended as a "joke." But his legacy lives on; and, in that connection, we are pleased to advise our subscribers that defense counsel is forwarding to us some of the briefs filed in this important case. Within the next two weeks those briefs will be posted on the Briefs and Motions section of our legal research center on the Internet.
United States v. Holland, 34 F.Supp.2d 346 (E.D.Va. 1999) (Judge Morgan)
In theory, this case is about the recently enacted Hyde Amendment, a statute that allows criminal defendants to recover attorneys' fees in cases where the court finds that the prosecutor acted vexatiously, frivolously or in bad faith. That statute, which is presently found at 18 U.S.C. § 3006A, Note, was discussed at some length in our review of U.S. v. Gardner, 23 F.Supp.2d 1283 (N.D.Okla. 1998), (see P&J12/28/98). While this decision does contain a meaningful review of the Hyde Amendment, it really is another example of some astonishing prosecutorial misconduct.
The case began in 1991 when Richard Holland, Jr., an officer of the Farmers Bank of Windsor (the bank), wrote a letter to the thin-skinned Regional Director of the FDIC in which he was "strident in his criticism of the FDIC in general and [the Regional Director] in particular." (Id., at 348). That criticism turned out to be a big mistake - because the Regional Director took that matter personally and, in typical power-crazed governmental style, he used the power of his office to commence a campaign of harassment and persecution against Holland and his father, who happened to be a Virginia State Senator. As Judge Morgan explained: "On December 7, 1991, one month to the day after the Holland, Jr. letter, a team of FDIC investigators . . . appeared at the bank and began an investigation, the aftermath of which lasted until April 16, 1998." (Id., at 348).
The details of that investigation are lengthy and convoluted; and they resulted, ultimately, in the return of a 31 count indictment, involving 57 separate criminal charges, against the Hollands. On April 30, 1998, Judge Morgan granted the defendants' Motion for a Judgment of Acquittal as to each count; and his lengthy opinion on the facts of this case is interspersed with comments showing why he concluded the case was "vexatious" - the critical buzzword for purposes of the Hyde Amendment. "Neither the FDIC nor the U.S. Attorney's investigation uncovered any evidence that the Hollands personally benefitted or sought to benefit" from the activities charged; and "[n]either the FDIC's nor the Prosecution's investigation uncovered any evidence of concealment on the part of the Hollands." (Id., at 349).
His conclusion was certainly bolstered by various candid admissions of some of the many players who were involved in this case. One chap, the regional attorney for the FDIC, observed that "Realistically, the U.S. Attorney's office will not prosecute this kind of case energetically unless they are attracted by some non-legal consideration, such as the prominence of the respondents." (Id., at 350). Later, the same attorney testified that he "found another way to skin these cats" by using the criminal law as the basis for seeking civil monetary penalties and restitution from the Hollands. (Id., at 350). Even the Regional Director who started the whole charade concluded, in a memorandum that he wrote, that due to "the identification of a Virginia State Senator as a primary suspect in the alleged criminal activity, it is probable that the referral will receive an active and timely review for possible prosecution." (Id.).
Judge Morgan's criticisms were not limited to the FDIC. He forcefully attacked the U.S. Attorney's Office for its puppet-like support of the FDIC Regional Director's personal vendetta. "The Prosecution expanded seven questioned loans and the bank's response to the FDIC's questions into fifty-seven criminal charges . . . . The duplications in and excessiveness of the indictment violate the Department of Justice's own guidelines." (Id, at 367). Finding that the prosecutors relied upon evidence "which it knew the FDIC deemed insufficient to pursue civil monetary penalties" and that the prosecutors "obviously had insufficient evidence upon which to find or infer specific criminal intent which is an element of each count" (id., at 365), he concluded that the prosecutors had simply "followed the ‘in terrorem' policy of the FDIC when it obtained an indictment containing thirty-one counts." (Id., at 367).
When the counts were finally dismissed, the Hollands sought legal fees and expenses against the Government under the provision of the Hyde Amendment. Concluding that "the enormous power invested in prosecutors and government agencies may not go entirely unchecked" (id., at 360, n. 24), and that "the totality of the FDIC conduct which led to its criminal referrals was vexatious", Judge Morgan granted their motion to the tune of a whopping $570,668 - two-thirds of which he assessed against the Department of Justice and one-third of which he assessed against the FDIC. Judge Morgan's decision is a veritable guide to actions under, and the elements of, the Hyde Amendment, which could become a potent weapon in helping to control prosecutorial excesses and abuses.
United States v. Zvi, 168 F.3d 49 (2nd Cir. 1999) (Judge Walker)
This is a significant case that explores two important issues. The first was whether a superseding indictment "relates back" to the filing date of the original indictment for the purposes of the statute of limitations. It has long been the law in the Second Circuit that a superseding indictment will relate back to the date of the original indictment only if the superseding indictment does not "broaden or substantially amend the original charges." U.S. v. Gengo, 808 F.2d 1, 3 (2nd Cir. 1986). Thus, the relation back theory applies where the superseding indictment does not present new factual allegations or require the defendant to prepare new evidence or defenses. (Gengo, id., at 3-4).
In the instant case an indictment was filed against Luiz Ben Zvi on August 11, 1993; and a superseding indictment was filed on September 15, 1993 which essentially added her brother Roz Ben Zvu, who, had signed a stipulation on July 2, 1993 tolling the limitations period as to him until October 2, 1993. (We have often wondered how much of the Government's power over the people ultimately stems from such forced "consents"). Those initial indictments charged one count of conspiracy to commit wire fraud and one count of substantive wire fraud arising out of an alleged scheme to defraud Lloyds of London out of $3,995,000 based on a staged robbery at the defendants' jewelry business. On August 15, 1988, Lloyds made an electronic transfer of the $3,995,000 to the defendants' bank account in New York.
On March 9, 1994, a second superseding indictment was filed. It added, inter alia, 14 counts of money laundering (seven counts each of domestic and international money laundering) stemming from six international fund transfers, three counts of laundering proceeds from narcotics trafficking, two counts of filing false tax returns, a series of additional objects of the initial wire fraud conspiracy charge, and it sought criminal forfeiture of all the property involved in the money laundering offenses. Still not satisfied, the Government filed a third superseding indictment on May 5, 1994, which added two more counts each of domestic and international money laundering for two additional fund transfers that took place on November 21, 1988 and March 1, 1989.
Before trial District Judge Platt dismissed as time-barred the money laundering counts based on all fund transfers that took place before August 15, 1998; and the jury acquitted the defendants of the three counts of laundering proceeds from narcotics trafficking (so we don't know the grounds on which the Government attempted to justify its drug charges). The defendants were found guilty on most of the remaining counts; the brother was sentenced to ten years in prison and the sister five; they were each ordered to pay $6,624,512 in restitution; and they were both subjected to criminal forfeitures of $1,370,000 in cash and two properties. They appealed their convictions on a number of grounds, but principally on the grounds that many of the charges were time-barred and that many of the counts were multiplicitous.
The Second Circuit agreed with both challenges and held that (1) all of the money laundering counts against the sister, and most of the money laundering counts against the brother were time-barred and must be dismissed; (2) the judgment of criminal forfeiture against the sister, which was based on money laundering statute, therefore also had to be dismissed; and (3) all of the domestic money laundering charges must be dismissed as multiplicitous with the international money laundering charges for the same transactions. (Id., at 52).
On the second issue of multiplicity, it should be noted that the Department of Justice's own Criminal Resource Manual (the full text of which is available on our Website) provides that U.S. Attorneys should charge in indictments "as few separate Counts as are reasonably necessary . . . [and] to the extent reasonable, should be limited to fifteen Counts or less . . . " As will be seen that is a rule that is followed more in its breach than its observance, as "count-hungry" prosecutors vie to maximize the total counts that defendants must face.
Here, the Court rejected the Government's broad assertion that the money laundering counts that were added "did not broaden or substantially amend the original indictment" because money laundering was part and parcel of the scheme to defraud Lloyds. The Court responded: "While money laundering may have been a part of the scheme to defraud, the sixteen counts of money laundering added by the superseding indictments required the defendants to defend against additional charges that alleged violations of a different statute, contained different elements, relied on different evidence, and exposed the defendants to a potentially much greater sentence." (Id., at 55).
In this case, each of the money laundering
fund transfers was charged twice - once as domestic money laundering in violation of 18
U.S.C. § 1956(a)(1)(B)(i), and once as international money laundering in violation of §
1956(a)(2)(B)(i). The Government argued that the two offenses required different
elements to be proved, and thus they satisfied the Blockburger test (Blockburger
v. U.S., 284 U.S. 299 (1932)). The defendants argued, and the Court
agreed, that it was multiplicitous to convict them for both brands of money laundering.
The Court held: "Although the
statutes may literally require different elements to be proved, we have previously held
that statutory distinctions may not always satisfy Blockburger, and that sometimes
the facts at hand may requires a finding of multiciplity. See, e.g., U.S. v. Holmes, 44 F.3d 1150 (2nd Cir. 1995). . . In the context of this case, the ‘financial transactions'
that the government had to establish in order to prove domestic money laundering were the
very same international ‘transmittals' of funds that were necessary elements of the
international laundering counts. The only fact not common to both counts was the
additional requirement of § 1956(a)(2)(B)(i) that the funds transferred be
international. Blockburger is not satisfied where the elements of one charged
offense are subsumed within another charged offense." (Id., at 57)
Bass v. Perrin, Docket No. 96-3428 (11th Cir. 4/1/99) (Judge Tjoflat)
The great Russian novelist Fydor Mikhailovich Dostoyevsky once wrote "the degree of civilization in a society is revealed by entering its prisons." F. Dostoyevsky, The House of the Dead 76 (C. Garnett trans., 1957). Apropos that comment, the Eleventh Circuit held in this case that, while unrelieved solitary confinement does inflict "pain", the keeping of two prisoners in solitary confinement for years with no opportunity for outdoor exercise does not constitute cruel and unusual punishment under the Eighth Amendment, because the infliction of such pain was not "totally without penological justification."
McCandless v. Vaughn, Docket No. 97-1585 (3rd Cir. 3/30/99) (Judge Stapleton)
Citing Pennsylvania's "casual" and "half-hearted" efforts to locate a critical witness in this case, the Third Circuit held that the state court had violated the petitioner's Sixth Amendment Confrontation Clause rights by admitting into evidence at trial a statement made by that witness at a preliminary hearing, on the grounds that the witness was "unavailable" within the meaning of the state's counterpart of Fed.R.Evid. 804.
The petitioner was found guilty in 1982 of a murder and he was sentenced to life imprisonment. At his preliminary hearing, the sole witness to the shooting was the witness in question, who testified that the petitioner was the triggerman. That witness was also implicated in the murder and, in fact, had been arrested for the crime before the petitioner. The witness agreed to testify against the petitioner after the prosecutor promised to facilitate his release on bail and, at the successful conclusion of the case against petitioner, to drop all charges against the witness. Despite that favorable arrangement, the witness absconded before the petitioner's trial. The state trial judge found that the witness was "unavailable", and allowed the witness's prior testimony to be read to the jury, which then convicted the petitioner of the murder.
The Court noted that the prosecutor had checked police and prison records for signs of the witness, and twice visited his home, once slipping a subpoena under the door. Worse, despite the fact that the witness's father was the surety on his bond, the police never even telephoned the father to locate the witness. Such failures made the prosecution's efforts to locate the witness, who had already given them the testimony they wanted, look insincere, the Court concluded. Addressing only the question of the witness's alleged "unavailability" and citing Ohio v. Roberts, 448 U.S. 56 (1980), the Court concluded that the Confrontation Clause requires a showing that the authorities took "affirmative, real and good-faith" steps to secure the witness for trial before asserting that the witness is unavailable. Thus, it ordered the petitioner's release from prison, unless he was retried and convicted within a reasonable time.
Rios v. Wiley, 34 F.Supp.2d 265 (M.D.Pa. 1999) (Judge Caldwell)
The issue raised in this case was whether a prisoner is entitled to any credit against his Federal sentence for time spent in the custody of Federal authorities pursuant to a writ of habeas corpus ad prosequendum before his Federal sentence is imposed. The answer to that question is normally governed by two separate legal principles. First, as a general rule, "when an accused is transferred pursuant to a writ of habeas corpus ad prosequendum he is considered to be ‘on loan' to the federal authorities so that the sending state's jurisdiction over the accused continues uninterruptedly. Failure to release a prisoner does not alter that ‘borrowed' status, transforming a state prisoner into a federal prisoner." Crawford v. Jackson, 589 F.2d 693, 695 (D.C.Cir. 1978).
Second, 18 U.S.C. § 3585(b) allows credit for "any time . . . spent in official detention" before sentencing but specifically prohibits credit for time "credited against another sentence." In U.S. v. Wilson, 503 U.S. 329, 337 (1992), the Supreme Court stated that, by enacting § 3585(b), "Congress has made clear that a defendant could not receive a double credit for his detention time."
In an earlier decision reported at 29 F.Supp.2d 232 (See P&J, 2/15/99), Judge Caldwell held that the Bureau of Prisons had improperly denied the petitioner, Rios, a credit of 22 months against his Federal sentence for time he spent in Federal custody before the imposition of his Federal sentence. The BOP promptly asked for a rehearing, arguing, inter alia, that Judge Caldwell's earlier decision had rested in part on the faulty assumption that Rios' State and federal crimes "arose out of the same operative conduct." Relying on the related nature of the two crimes, Judge Caldwell had cited U.S.S.G. § 5G1.3(b) as his authority "to grant credit for time served on a related state offense that has been taken into account in establishing the offense level for the federal offense."
At the rehearing, the BOP established, for the first time, that the two charges were not related. Nevertheless, Judge Caldwell still affirmed his earlier decision although, since the facts had changed, he modified the basis for his decision.
Citing Brown v. Perrill, 28 F.3d 1073 (10th Cir. 1994), he held that the length of petitioner's stay in Federal custody (22 months) defeated the general rule (fiction?) that Rios was only "on loan" to the Federal authorities for purposes of his sentence calculation; and he reaffirmed that it would be unfair to deny Rios credit for that lengthy period based on the mere "happenstance" of when his Federal sentencing took place.
He also rejected the BOP's argument that his decision was contrary to the Supreme Court's ruling in Wilson. He concluded that Wilson's statement about § 3585(b)'s prohibition against double credits was dictum; and that it was made in an entirely different procedural context than the instant case. He also held that while the prohibition against double credits is normally sound, they are sometimes required to grant "meaningful credit" when the situation demands it. Noting that, while Rios was in Federal custody, his State sentence was completed, and that the BOP conceded that if the 22-month period was taken into account Rios would no longer be incarcerated, he concluded that this was a case that demanded double credits, and he reaffirmed his original decision and directed the BOP to release Rios immediately.
United States v. Granados, 168 F.3d 343 (8th Cir. 1999) (Per Curiam)
To help put the label of "ineffective assistance of counsel" in context, there ought to be a similar label for "ineffective rulings by judges." The reason is that, while judges seem to survive unscathed when they issue an erroneous ruling about the indecipherable and convoluted Federal Sentencing Guidelines (an event that happens frequently based on the cases that are published each week), lawyers seem to take the brunt of the criticism when a Court of Appeals finds that defense counsel was ineffective. One remedy that could be applied would be to select more carefully the attorneys who are appointed to the CJA panels, and to cease the outrageous practice of kicking lawyers off that panel who fight too hard (an event that also happens frequently).
That said, we do not imply that the lawyer who initially represented the defendant in this case was not ineffective. Here, the defendant agreed to plead guilty to a conspiracy to possess not more than 5 kilograms of cocaine and less than 15 kilograms of cocaine. In exchange for that plea, the Government "promised to amend the indictment to charge Granados with one count of conspiracy to distribute more than 3.5 kilograms but less than 5 kilograms of cocaine." (Id., at 345). Under the quantity-oriented Guidelines, that represented a two-level difference in the defendant's base offense level - and an additional 40 to 50 months in prison.
Notwithstanding the Government's agreement, neither counsel for Granados nor the Government objected when the presentence report attributed 5 to 15 kilograms of cocaine to Granados. "His counsel stood mute on the subject at the sentencing hearing." (Id.).
After sentencing based on the higher quantity of drugs, Granados filed a 28 U.S.C. § 2255 motion to correct his sentence on the grounds that his counsel was ineffective and that his guilty plea was involuntary. The district court (Judge Urbom) denied the motion. Relying primarily on the fiction that the court had advised the defendant at his plea colloquy what the statutory maximum penalty could be, the district court held that counsel's error "did not result in [any] prejudice" (id., at 344) - a statement that ignores the extra 40 to 50 months on imprisonment.
The Eighth Circuit reversed. Emphasizing that the Government had agreed that "the scope of the relevant conduct attributable to Grenados would not exceed five kilograms of cocaine" (id., at 346, n. 5), the Court concluded that: "We believe Granados' attorney's failure to read and understand the Sentencing Guidelines prejudiced Granados. . . . Granados was sentenced to serve an additional 40 to 50 months because his attorney was not familiar with the Guidelines and failed to challenge the government's breach of its plea agreement." (Id., at 346). Thus the case was remanded to the district court for a new sentencing hearing.
QUOTE OF THE WEEK - Getting convictions by striking "foul blows."
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor - indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Justice Sutherland in Berger v. United States, 295 U.S. 78, 88 (1934).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal Reporter:
This week: 28 Year to
date: 503
Cases in the Federal Supplement:
This week: 13 Year to
date: 325
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