Vol. 13, Nos 35 & 36	Covering Cases Published in the Advance Sheets through Sept. 4, 2006

Anti-Terrorism Issues

• In the Muslim Community case, Judge Denise Hood of the E.D.Mich. ruled that a challenge to the constitutionality of certain provisions of the USA Patriot Act may proceed, and she granted the plaintiffs the right to amend their complaint to address recent amendments to that Act.
  
  
  
• The Sixth Circuit granted a stay of Judge Taylor’s landmark decision in the NSA eavesdropping case, which allows the Bush administration to continue monitoring the international calls of suspected terrorists without a court ordered warrant, at least until the Circuit has had a chance to review the case.
  
  
  
• We have posted a copy of a new habeas petition filed by the Center for Constitutional Rights in Mohammed v. Rumsfeld on behalf of 25 alleged terrorists being held without charge at an American air force base in Afghanistan, in what appears to be the first direct test of the constitutionality of the new Military Commissions Act that withdraws habeas rights from detainees being held in U.S. custody.
  
  

Fourth Amendment Issues

• In Shaw, a divided panel from the Sixth Circuit held that a three year old boy’s claims of sexual abuse, as reported by his mother, were not sufficient to establish probable cause to arrest the suspected molester; and thus it vacated his conviction which was based in large part on a confession he made while under that unlawful arrest.
  
  
  
• In Harris, the Seventh Circuit reversed a drug conviction and remanded for a Franks hearing after concluding that the district court had erred when it allowed the Government to bolster the magistrate's probable cause determination through post-hoc filings and when it denied the defendant the opportunity to cross-examine the police officer who intentionally or recklessly made false statements to procure the search warrant at issue.
  
  
  

The Use of Acquitted Conduct to Increase a Sentence

• The Ibanga decision from the E.D.Va. is noted for Judge Kelley’s outstanding condemnation of both the inherent unfairness and the impropriety (post-Booker) of using conduct for which the defendant has been acquitted to increase his sentence.
  
  
  

The "Innocent Possession" Defense Denied to a Dedendant in a Felon-in-Possesssion Case

• In Johnson, the Ninth Circuit held that a defendant in a felon-in-possession case is not entitled to assert an innocent possession defense based on his claim of an innocent and transitory possession of a firearm.

Can a Defendant Receive a Bench Trial Over the Objection of the Government?

• In the U.S. District Court case, the Ninth Circuit granted a writ of mandamus and held that the district court had erred when it granted the defendants’ motion for a bench trial over the objections of the Government.

Muslim Community Ass’n v. Ashcroft, No. 03-CV-72913-DT (E.D.Mich. Sept. 29, 2006) (Judge Hood)

In 2003, the ACLU filed this lawsuit on behalf of the Muslim Community Association of Ann Arbor and five other non-profit groups, charging that Section 215 of the USA Patriot Act (18 U.S.C. § 1861(c)(1)) (a) violates the Fourth Amendment by authorizing the FBI to execute searches without criminal or foreign intelligence probable cause; (b) violates the Fourth Amendment by authorizing the FBI to execute searches without providing targeted individuals with notice or an opportunity to be heard; (c) violates the Fifth Amendment by authorizing the FBI to deprive individuals of property without due process; (d) violates the First Amendment by categorically and permanently prohibiting any person from disclosing to any other person that the FBI has sought records or personal belongings; and (e) violates the First Amendment by authorizing the FBI to investigate individuals based on their exercise of First Amendment rights, including the rights of free expression, free association, and free exercise of religion.

The lawsuit was the first legal challenge to the provisions of the Patriot Act, which was enacted after the 9/11 terrorist attacks and which amended the provisions of the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50 U.S.C. § 1801 et seq., to grant the Government access to any “tangible things” such as books, records and documents with the necessity of showing probable cause.

The Government moved to dismiss the lawsuit on various grounds, including arguments that the plaintiffs lacked standing to bring the lawsuit and that the issues raised were not ripe for judicial review. In addition, in March 2006, while the case was under advisement, Congress passed substantial amendments to Section 215 of the Patriot Act; and the Government claimed that those amendments cured any and all of the constitutional deficiencies claimed by the plaintiffs.

In the instant ruling, issued nearly three years after hearings were held in the case, Judge Denise Page Hood rejected the government's motion to dismiss the case; ruled that the challenges to the constitutionality of Section 215 may proceed; and granted the plaintiffs 30 days to decide whether to file an amended complaint in light of changes to the law. Judge Hood also specifically noted that her ruling does not apply to the current, reauthorized version of the Patriot Act.

In a press release issued shortly after this ruling was released, the ACLU stated that the ruling constitutes judicial recognition that the Patriot Act threatens the free speech rights of persons who are the targets of investigations because of their ethnicity, religion and political associations. It also noted that, while the recent amendments to the Patriot Act had addressed some of the issues raised in its lawsuit, the Act “still fails to comply with the Constitution. . . . For instance, as a result of reforms, the law now makes explicit that any business that receives an order for records of employees or customers has a right to consult with a lawyer. [However], the law continues to gag recipients automatically for a year. Businesses may challenge gag orders they receive after a year, but challenges would be difficult if not impossible because judges must defer to the FBI's view that secrecy is necessary.”

A.C.L.U. v. National Security Agency, 438 F.Supp.2d 754 (E.D.Mich. Aug. 17, 2006) (Judge Taylor)
A.C.L.U. v. National Security Agency, No. 06-2085 (6th Cir. Oct. 3, 2006) (Per Curiam)

In August, Judge Taylor issued her landmark ruling in this case, holding that the National Security Agency’s (NSA) warrantless domestic surveillance program violated both the Constitution and existing law; and she ordered it shut down. The NSA’s program monitors international phone calls and email messages to or from the United States involving people whom the Government says it suspects of having links to terrorists - and it does so without obtaining any warrants from the courts.

The Government quickly moved for a stay of Judge Taylor’s ruling, claiming that it faced “potential irreparable harm” if it was required to suspend the monitoring program while an appeal, that could take months to resolve, was pending.

On October 3, 2006, a three judge panel from the Sixth Circuit issued a brief order granting a stay of Judge Taylor’s ruling, pending the outcome of the appeal before the Circuit. Effectively, the stay allows the Government to continue its eavesdropping program on the international communications of some Americans without a court warrant; but the unsigned ruling gave no indication of the ultimate outcome of the case.

Mohammed v. Rumsfeld, No. 06-1680 (D.D.C. Sept. 28, 2006) (Judge Leon)

Although this lawsuit makes no direct reference to the new Military Commissions Act of 2006 (see P&J, 08/21/06) which withdraws habeas rights from detainees being held in U.S. military custody, it could be the first court test of the constitutionality of that provision. The petition argues that, to the extent the Government contends that these detainees may not challenge the legality of their detention through habeas corpus, those actions constitute "an unlawful suspension of the writ of habeas corpus" under Article I of the Constitution.

The lawsuit was filed by the Center for Constitutional Rights on behalf of 25 individuals now being held at the Bagram Air Base in Afghanistan. According to the complaint, not one of the 25 detainees has been ruled to be an "enemy combatant"; none has committed any hostilities toward the U.S. or is any part of Al Qaeda or the Taliban; none has been charged with any crime; and they are not "properly subject" to President Bush's Nov. 13, 2001, order authorizing indefinite detention of war-on-terrorism suspects

The lawsuit claims, inter alia, that the prisoners at Bagram have a right to bring habeas challenges to their original capture and their prolonged detention. They rely upon the Supreme Court's 2004 decision extending habeas-filing rights to the many detainees being held at the military prison at Guantanamo Bay, Cuba. (Rasul v. Bush, 542 U.S. 455 (June 28, 2004)). The lawsuit asserts that, like Guantanamo, the military prison at the Bagram Air Base is "subject to the complete jurisdiction and control of the United States military," and U.S. constitutional and statutory law applies there, making the air base "answerable to the federal judiciary."

The lawsuit also alleges various violations of rights, including a violation of the detainees' rights under habeas not to be detained "with no means to test the legal and factual basis" for their captivity; a violation of the due process clause for their continued and "indefinite" detention; and a violation of U.S. military regulations on the treatment of military prisoners of war, and of the various Geneva Conventions on prisoners' rights.

The case has been assigned to U.S. District Judge Richard J. Leon, who previously has ruled on the habeas claims of a number of Guantanamo detainees, in Khalid v. Bush, 355 F.Supp.2d 311 (D.D.C. Jan. 1, 2005) (P&J, 01/03/05). In that case, which is presently on appeal, Judge Leon concluded that the detainees, while allowed to file for habeas, could claim no legal remedies for their detention.

U.S. v. Shaw, No. 05-6110 (6th Cir. Sept. 26, 2006) (Judge Wiseman)

In this case, the Sixth Circuit addressed the difficult question of whether a three year old boy’s claims of sexual abuse, as reported by his mother, were sufficient to establish probable cause to arrest the suspected molester.

Defendant Brendan Shaw was an eighteen year old who lived with his brother’s family, which included three children ages 1, 3, and 5. Shaw’s sister-in-law told police that her son told her that Shaw had sexually abused him. Police did not interview the child, and his medical reports were inconclusive. Nonetheless, the police proceeded to frisk Shaw, handcuff him, and hold him incommunicado for twenty hours, interrogating him periodically. Eventually, Shaw confessed to molesting all three of his nephews.

Following his indictment, Shaw moved to suppress the confession, arguing that his arrest and detention violated the Fourth Amendment. The district court denied his motion, at which point Shaw pleaded guilty while reserving his right to appeal.

A divided panel from the Sixth Circuit reversed. The majority concluded that Shaw was in fact under arrest at the time of his confession, and that the arrest was unlawful. Specifically, the majority held that the police lacked probable cause to arrest him based only on the uncorroborated hearsay of a three year old. At the very least, the majority concluded, the police should have interviewed the child to try to determine whether the mother was telling the truth in reporting the allegations and, if so, whether the boy’s claims were credible.

Judge Sutton dissented, essentially arguing that there was probable cause to make an arrest in this case because the facts of this case gave rise to what he deemed to be a clear presumption of guilt. After reviewing the facts of the case, he explained:

“Conspicuously missing from this sequence of events is any evidence that diminishes the likelihood that Shaw committed the crime. . . . As I read the majority's opinion, it rejects the district court's finding of probable cause on one ground and one ground alone: that the police could not believe the statements of a three year old. I realize the majority disclaims announcing such a bright-line rule, but I cannot see any other reason for the decision. While I share the majority's anxiety about premising an individual's deprivation of liberty on the observations of a three year old, it is well to remember that that is not all that happened. The police interviewed the mother, who knew both the victim and the perpetrator; they interviewed the medical staff; they learned that Shaw had the opportunity and necessary access to the child to commit the crime; and they learned nothing inconsistent with the accusation. And of course we are not being asked to affirm a criminal conviction. We are being asked a question of probabilities - whether a trained law enforcement officer could reasonably believe that Shaw had committed a crime.”

U.S. v. Harris, No. 05-3808 (7th Cir. Sept. 27, 2006) (Judge Williams)

This decision is noted for it helpful guidance to the rules governing how courts should handle false information in a warrant affidavit in general, and more particularly to the circumstances under which a defendant may attack the veracity of a warrant affidavit and whether he is entitled to a Franks hearing (named after Franks v. Delaware, 438 U.S. 154 (1978)).

Here, the defendant, Antone Harris, was convicted of drug charges based on evidence obtained during a search of an acquaintance’s home. The officers had a warrant to search the home, but the affidavit used to obtain the warrant was less than accurate. Among other problems, the swearing officer stated that he had observed Harris and his brother entering the home on several occasions, but it turned out that the brother had been incarcerated during the entire period at issue. The officer also gave exact dates and times for relevant incidents but later admitted that he was uncertain of precisely when the incidents in question had taken place. In fact, several of the incidents - like a tip on a crime hotline and observations by a confidential informant - had occurred far earlier than initially claimed.

The district court agreed with Harris that the officer’s affidavit contained false information, and that the officer acted intentionally or recklessly. However, in response to Harris’ request for a Franks hearing, the court concluded that Harris could not show that the false statements were material. In view of a new affidavit submitted by the officer, the district court found that there was still probable cause to search. Accordingly, the evidence was admitted without a Franks hearing, the case proceeded to trial, and Harris was convicted.

On appeal, a unanimous panel from the Seventh Circuit reversed. The Court explained that the district court erred by considering the officer’s new information in determining probable cause. The Government already had its chance to establish probable cause; it cannot supply additional information after the fact to justify an already-executed warrant. Moreover, given the officer’s inconsistent statements, Harris has earned the opportunity to cross-examine him about his current version of events. Accordingly, the Court vacated the conviction and remanded the matter so that the district court could conduct a Franks hearing.

In reaching that conclusion, the Court explained that a defendant who wants to challenge the basis for a warrant needs to show that the affiant acted intentionally or recklessly with respect to the contents of the warrant affidavit. The defendant must also show that any misinformation likely affected the magistrate’s determination of probable cause. In other words, would the magistrate have issued the warrant if law enforcement had provided accurate information?

If a defendant can make this preliminary showing, he is then entitled to a Franks hearing, where the district court excises the false or misleading portions of the affidavit and then considers whether the remaining information is sufficient to establish probable cause to search. If not, then any evidence seized must be suppressed.

U.S. v. Ibanga, No. 2:04cr227 (E.D.Va. Oct. 5, 2006) (Judge Kelley)

One of the most significant debates generated by the Supreme Court’s ruling in U.S. v. Booker, 543 U.S. 220 (2005) is whether or not that decision mandates any changes in the Guidelines’ artificial rule that, when sentencing a defendant, the court must take into account not only the conduct for which the defendant has convicted, but also crimes that have never been charged and even crimes for which the defendant has actually been acquitted. (See, U.S.S.G. § 1B1.3, comment. (backg'd.): “Conduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.”)

While the Supreme Court specifically endorsed that approach in U.S. v. Watts, 519 U.S. 148, 157 (1997), and while the lower appellate courts have uniformly rejected all types of constitutional challenges to enhancing a sentence based on acquitted conduct, since Booker, a number of judges have questioned the continuing validity of Watts in the post-Booker world and have concluded that a sentencing court may no longer use conduct for which a defendant has been acquitted as the basis for increasing a defendant’s sentence.

The instant decision is a brilliant example of such a ruling. In this case, Judge Walter Kelley thoughtfully explains why acquitted conduct should no longer be used at sentencing now that Booker mandates that the provisions of 18 U.S.C. § 3553(a) guide sentencing decision-making. While the highlights set forth below do not do justice to all of the legal points made by Judge Kelly, they do give the flavor of his decision and they certainly help frame the major issues involved in this debate:

“Sentencing a defendant to time in prison for a crime that the jury found he did not commit is a Kafka-esque result. . . . The continued validity of Watts and its progeny recently was called into question by the Supreme Court's decision in U.S. v. Booker, 543 U.S. 220 (2005). The Court held in Booker that a Guidelines sentence violates the Sixth Amendment to the United States Constitution when the sentencing judge makes findings of fact that result in a sentence higher than the statutorily prescribed maximum. . . . .

“Although Justice Stevens's constitutional majority opinion in Booker expressly questioned the continuing validity of Watts, subsequent appellate cases have relied on the supposedly "advisory" nature of the Guidelines to hold that enhancing a defendant's sentence for acquitted conduct remains constitutional. . . . A number of district courts have reached precisely the opposite conclusion. (Citing, inter alia, U.S. v. Kandirakis, 441 F. Supp. 2d 282 (D. Mass. Aug. 8, 2006); U.S. v. Pimental, 367 F. Supp. 2d 143, 150 (D. Mass. 2005); U.S. v. Coleman, 370 F. Supp. 2d 661, 668 (S.D. Ohio 2005); U.S. v. Huerta-Rodriguez, 355 F. Supp. 2d 1019, 1028 (D. Neb. 2005); and U.S. v. Gray, 362 F. Supp. 2d 714, 720 (S.D. W. Va. 2005)). . .

“Punishing defendant Ibanga for his acquitted conduct would have contravened the statutory goal of furthering respect for the law and would have resulted in unjust punishment for the offense for which he was convicted (i.e., money laundering). 18. U.S.C. § 3553(a)(2)(A). From defendant Ibanga's perspective, a Guidelines sentence would certainly have resulted in confusion as to the law, and confusion breeds contempt. Defendant Ibanga is an immigrant to this country who has not had the benefit of extensive education, much less an intensive law school seminar on post-Booker sentencing practices. What could instill more confusion and disrespect than finding out that you will be sentenced to an extra ten years in prison for the alleged crimes of which you were acquitted? The law would have gone from something venerable and respected to a farce and a sham. . . .

“The jury as an institution not only guards against judicial despotism, but also provides an opportunity for lay citizens to become both pupils of and participants in our legal and political system. . . . A sentence that repudiates the jury's verdict undermines the juror's role as both a pupil and participant in civic affairs. The juror as pupil learns that the law does not value the results of his or her participation in the judicial process and may reject it at will.” (Numerous internal citations omitted).

This is a must-read decision for anyone facing a sentencing hearing at which acquitted conduct will be used to enhance the sentence because it highlights that issues that should be preserved for appeal.

U.S. v. Johnson, 459 F.3d 990 (9th Cir. Aug. 29, 2006) (Judge O’Scannlain)

In this case, the Court was asked to decide whether there exists an "innocent possession" defense that would excuse a defendant for being a felon in possession of a firearm if he had obtained it innocently and his possession was transitory. To date, such a defense has been recognized only in the D.C. Circuit (U.S. v. Mason, 233 F.3d 619 (D.C.Cir. 2001)); although both the Second and Tenth Circuits have suggested that there may be a “fleeting possession” defense where the defendant’s possession of a firearm was momentary (see, U.S. v. Williams, 389 F.3d 402 (2nd Cir. 2004) and U.S. v. Adkins, 196 F.3d 1112 (10th Cir. 1999)).

In this case, the defendant, William Johnson, was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to 77 months in prison. On appeal, he argued that the district court had erred in refusing to give the jury an “innocent possession” instruction. Johnson claimed that he found the gun in question and a bag containing some ammunition in a garbage bin in an alley near a school; and that he picked up those items in order to turn them in to the police, thinking that was “the best thing to do . . . ‘cause it was right by a school.” In fact, he did file a report with the police, explaining the circumstances under which he claimed he had found the gun and the ammunition.

Citing the D.C. Circuit’s decision in Mason, Johnson argued that he obtained the firearm innocently and with no illicit purpose, and that he took adequate measures to rid himself of the gun as promptly as reasonably possible. The Ninth Circuit concluded that Johnson had provided “plausible, albeit debatable” grounds for the innocent and transitory nature of his gun possession - but, for a number of reasons, it declined to adopt the "innocent possession" defense as articulated in Mason.

Citing decisions from the First, Fourth, Sixth, Seventh and Eleventh Circuits, the Court agreed with the Government’s argument that the “innocent possession” defense “would undermine the statutory scheme that governs felon-in-possession offenses, which expressly avoids inquiring into the motive of a felon caught possessing a firearm." The Court further concluded that the proposed defense was not only absent from the text of § 922(g) and its legislative history, but that “Congress also explicitly adopted a mens rea requirement that negates it.” Finally, the Court stated that, “[a]s a policy matter, the proposed defense would invite perjury and thus unduly increase the government’s burden in litigating these cases.”

U.S. v. U.S. Dist. Court for the E.D.Cal., No. 06-72498 (9th Cir. Oct. 3, 2006) (Per Curiam)

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” A defendant, however, can waive his right to a jury trial, pursuant to Rule 23(a) of the Fed.R.Crim.P., but the government must consent and the court must approve of the waiver. The instant case addressed an interesting variant of those principles: can a district court grant a defendant’s motion for a bench trial over the government’s objection? The answer appears to be no, according to this per curiam decision.

That issue arose when the Government sought a writ of mandamus to require the district court to hold a jury trial in a criminal case in which four defendants were charged with multiple acts of “ritualistic sexual abuse” of young children over a ten year period. The defendants did not contest that the acts occurred; rather, they indicated that their defense would focus on “lack of knowledge or intent as to the purpose of transporting the children in interstate commerce.”

Before trial, the defendants filed a "Motion to Waive Jury and to be Tried by Judge," which the government opposed. As stated by the Court: “The gist of the motion was that the defendants' actions were so horrific that, in the face of evidence regarding the [sexual abuse alleged], no jury could fairly consider defendants' argument that the government could not prove knowledge and intent at the time the children were transported in interstate commerce.” In the interests of giving both sides “as fair a trial as possible,” the district court granted the defendants’ motion for a bench trial despite the Government’s refusal to consent to the jury waiver pursuant to Rule 23(a).

While the Court held out the possibility that “there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial,” it concluded that this was not such a case. Thus, after reviewing the record in this case and the law relating to Rule 23(a), the Court stated that the district court was “clearly erroneous” in ordering a non-jury trial without the consent of the prosecution. Accordingly, it granted the writ of mandamus and directed the district court to rescind its order granting the defendants’ motion for a bench trial.

The Court noted that, while some lower courts have allowed bench trials over the government’s objections, “no United States Court of Appeals appears to have approved a defendant’s waiver of a jury over the government’s objection. Indeed, the circuits that have considered this issue have uniformly upheld the trial courts’ refusals to grant such waivers without governmental consent.”

New Resources of Interest on the Internet

We note the following new resources of interest that we have posted on our Website:

• Stephen R. Sady, the Chief Deputy Federal Public Defender from Portland, OR has once again posted an invaluable contribution to the criminal defense bar. This time it’s his 44-page opus entitled “Developments in Search and Seizure Law, Sept. 2006" - and even though it concentrates on the law in the ever-exciting and often-reversed Ninth Circuit, it is an extremely helpful resource.
  
  
• In the 07/10/06 issue of P&J, we noted some resources relating to “The Emerging Debate Over President Bush’s Use of Signing Statements.” To that list, we now add the following additional items: “Presidential Signing Statements: Constitutional and Institutional Implications,” a special Report to Congress, dated Sept. 20, 2006, prepared by the Congressional Research Service; “Bush signings called effort to expand power,” by Charlie Savage, Boston Globe, Oct. 5, 2006; “Bush cites authority to bypass FEMA law,” by Charlie Savage, Boston Globe, Oct. 6, 2006; and “Bush Balks at Criteria for FEMA Director,” by Spencer S. Hsu, Washington Post, Oct. 7, 2006.
  
  
• People for the American Way has produced a startling 102-page, updated analysis of the voting record of President Bush’s appointees to the Federal Bench, entitled “Confirmed Judges, Confirmed Fears.” This detailed report shows how these new judges, who have been exceptionally activist in rewriting the law, have been instrumental in changing long-standing legal precedents in many areas, particularly in upholding the rights of big business and the Executive Branch of the Government at the expense of the rights, liberties and legal protections of the vast majority of American citizens.

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