Vol. 14, No. 42	Covering Cases Published in the Advance Sheets through Oct. 15, 2007

Prosecutorial Misconduct: Misleading the Jury About a Snitch's Sentence In Only Harmless Error

• In Morris, the Seventh Circuit held that, even though the prosecutor had unquestionably engaged in misconduct by flatly telling the jury that there was no way a cooperating witness could get less than 10 years in prison in exchange for his testimony (when, in fact, he was ultimately sentenced to 70 months in prison), the misconduct was not so egregious as to warrant a new trial.
  
  

The Growing Use of "Clockwork Orange" Punishments for Sex Offenders

• In Cope, the Ninth Circuit held that there are significant liberty interests at stake when a court orders a defendant to undergo forced medication (such as “chemical castration”) as a special condition of supervised release in sex offense cases. Accordingly, it established that, before a district court may not impose a condition that the defendant take “all prescribed medications,” it must, among other things, make specific factual findings that the prescribed medications that are reasonably related to the defendant’s offense conduct and that they are reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553.
  
  
  
• In Doe, a divided panel from the Sixth Circuit concluded that the retroactive application of a new GPS tracking system to convicted sex offenders did not violate the Ex Post Facto Clause, since the requirement that such offenders wear a visible black box is non-punitive in nature. In a strong dissent, Judge Keith scoffed at that reasoning, and concluded that the wearing of the GPS monitoring system was “a catalyst for public ridicule” akin to traditional forms of community shaming or humiliation; and, as such, was clearly punitive in nature.
  
  

Court Holds that NSA Eavesdropping Case Is Subject to the 'State Secrets' Privilege

• In Al-Haramain, the Ninth Circuit held that the Government’s Terrorist Surveillance Program (TSP) is protected by the “state secrets” privilege; and, accordingly, it held that the plaintiff Foundation in this case would not be allowed to use a top secret document (which the FBI had inadvertently produced to its lawyers and then quickly taken back) as evidence of the Government’s illegal activities. However, the Court also rejected the Bush administration's sweeping claim that the TSP was entirely protected by a state secrets claim, a ruling that could pose significant problems for the Government in most to the 40-odd related cases that have been filed against the telecommunication companies who secretly turned over data to the Government without warrants.
  
  

Sentencing/Guidelines Issues

• In Taylor, the First Circuit generally affirmed a district court’s broad use a defendant’s “extraordinary good works” pursuant to U.S.S.G. § 5H1.11 as the justification for imposing a non-Guidelines sentence; although, in this case, it also rejected as unreasonable the district court’s imposition of a non-jail sentence of five years of probation.

U.S. v. Morris, 498 F.3d 634 (7th Cir. Aug. 20, 2007) (Judge Wood)

To use the oft-quoted words of Judge Jerome Frank (see the Quote of the Week below), this is another one of those all-too-common cases in which the Court gave a “purely ceremonial . . . ritualistic verbal spanking” to a prosecutor for engaging in outrageous prosecutorial misconduct to obtain a conviction; and then decided that it would not reverse the conviction despite the disapproved misconduct.

Denard Morris was convicted at trial of various drug crimes; and he was sentenced to 262 months in prison. On appeal, he argued principally that he had been denied a fair trial because of prosecutorial misconduct. At trial, Morris’s cousin, Tramayne Peterson, pled guilty to a single count of the indictment; and, as part of his plea agreement, Peterson testified against Morris. When questioned about his plea deal with the Government, Peterson asserted that the mandatory minimum sentence for his plea was 10 years. Building on that testimony, AUSA Robert Trgovich argued on multiple occasions that Peterson could not get than 10 years in exchange for his testimony.

In fact, following Morris’ conviction, the Government moved under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 for Peterson to be sentenced below the mandatory minimum to a 70-month sentence; and the district court imposed a 70 month sentence - which was 50 months less than AUSA Trgovich had assured the jury would be the minimum sentence Peterson could receive.

The Court agreed that AUSA Trgovich had clearly engaged in prosecutorial misconduct, stating:

“He told the jury flatly that there was no way that Peterson could get less than 10 years in prison, emphasizing that ‘mandatory means . . . has to be imposed, and minimum means this is the lowest he can get, ten years.’ This goes beyond any comment about what Peterson's understanding of his plea agreement was . . . . No competent Assistant U.S. Attorney is unaware of the existence of U.S.S.G. § 5K1.1. Trgovich plainly knew that it was within the government's discretion to ask the judge to impose a sentence below the normal statutory minimum, if Peterson lived up to his end of the plea agreement - that is exactly what wound up happening. It was therefore improper both to give the jury the impression that Peterson's sentence could not go below 10 years during his examination of Peterson, and then later to argue the same thing to the jury, at least when it is obvious that the United States had not firmly rejected the possibility of the § 5K1.1 motion.” (Id., at 639).

Nevertheless, despite those findings, the Court declined to grant Morris a new trial, stating “we cannot conclude on this record that AUSA Trgovich’s improper comments were material and therefore deprived Morris of a fair trial. The picture the jury had before it of Peterson's plea agreement made it aware that he was receiving a substantial benefit for his testimony and, more importantly, that he had strong incentives to please the government. . . . In addition, the court stressed that the jury would have to evaluate Peterson's credibility carefully. Although the jury might have recognized the potential for an additional reduction in Peterson's sentence as a marginally greater incentive for Peterson to tailor his testimony in favor of the government, the information that the jury had before it was not different enough to lead us to believe that there was a ‘reasonable likelihood’ that the result would have changed.” (Id., at 640).

As Judge Frank observed: “If the prosecutors win verdicts as a result of ‘disapproved’ remarks, we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.” U.S. v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946).

U.S. v. Cope, No. 06-50441 (9th Cir. Nov. 5, 2007) (Judge Thomas)

Gordon Cope was arrested in September, 2003 by the San Bernardino Sheriff's Department, and charged with various sex offense crimes arising out of their discovery of over 600 images and 20 videos of child pornography on Cope's home computers, including "videos of sadistic and masochistic acts." Ultimately, Cope pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Cope’s plea agreement stipulated to a total offense level of 28 under the Guidelines; and it provided that Cope had to waive his statutory right to appeal "any sentence imposed by" the district court, provided certain requirements were met. Cope did however retain his right to appeal most of any special conditions of his supervised release.

At the time of his sentencing, Cope was fifty-eight years old; and he had a prior conviction for attempted sexual assault on a child some 20 years earlier. The district court (Judge Schiavelli of the C.D.Cal.) imposed a sentence of 120 months in prison, the statutory minimum, and a lifetime term of supervised release. In addition, Judge Schiavelli also imposed a number of special conditions of supervised release, including a condition requiring Cope to participate in sex offender treatment. As part of that treatment, the district court imposed conditions requiring Cope to submit to polygraph testing, penile plethysmograph testing, and to take “all prescribed medication” - without specifying what those medications were or who had the authority to prescribe them. Prior to the imposition of those special conditions, Judge Schiavelli had made no mention of the special conditions relating to testing or medication

On appeal, Cope challenged, inter alia, the requirement that he submit to penile plethysmograph testing and the vague and indiscriminate requirement that he submit to “all prescribed medication.”

In an important and well-reasoned ruling, the Ninth Circuit vacated Cope’s sentence and remanded the case back to the district court to permit that court:

“(1) to provide notice to the parties of any special condition of supervised release not contemplated by the Sentencing Guidelines; (2) to articulate specific, medically informed findings on the record regarding the need for Cope to undergo plethysmograph testing and take medications that implicate particularly significant liberty interests; and (3) to clarify that any condition requiring Cope to take all prescribed medications is limited to those medications reasonably related to sex offender treatment.”

On the issue of forcing Cope to submit to penile plethysmograph testing, the Court essentially relied on its seminal decision is U.S. v. Weber, 451 F.3d 552 (9th Cir. June 20, 2006), which established the standards and criteria for the use of penile plethysmograph testing; and which required the district courts to articulate, based on evidence in the record, why such a condition "is necessary to accomplish one or more of the factors listed in § 3583(d)(1) and involves no greater deprivation of liberty than is reasonably necessary."

The more interesting part of the Court’s opinion related to Judge Schiavelli’s almost nonchalant order that Cope submit to “all prescribed medication.” Cope argued, for example, that Judge Schiavelli’s order was so vague that could be ordered to undergo so-called "chemical castration," or the taking of hormonal drugs to reduce his sex drive and cause temporary impotence. In response to that claim, the Court wrote:

“We have no doubt that chemical castration would, if prescribed against the will of a defendant on supervised release, implicate a particularly significant liberty interest. Like antipsychotic medication, chemical castration interferes with mental processes and alters behavior. . . . It may also cause serious side effects, such as cancer and depression. As a result, chemical castration is certainly as intrusive as antipsychotic medication or penile plethysmograph testing. In fact, chemical castration may be found at the extreme end of the spectrum of intrusive medications and procedures, and there may well be other conditions of supervised release that qualify for . . . Weber findings without reaching that level of intrusion. We do not doubt that there will be other types of medication or procedures designed to rehabilitate or deter, either extant or not yet in existence, which, if forced upon a defendant as a condition of supervised release, would implicate particularly significant liberty interests. Cf., e.g., Anthony Burgess, A Clockwork Orange (W. W. Norton & Co. 1962). . . .

“Given these considerations, we remand this case . . . to permit the district court to make the necessary . . . Weber findings with regard to the condition requiring Cope to "take all prescribed medication," insofar as that condition may require Cope to take medication that implicates a particularly significant liberty interest.”

The Court also agreed with Cope that the requirement that he "shall take all prescribed medication" is “overbroad insofar as it is not clearly limited to medications that are reasonably related to sex offender treatment” and it tied any such medication into the factors set forth in 18 U.S.C. §§ 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). It then continued that each of those factors “points primarily to the underlying sex offense committed by Cope and the resulting need for treatment and deterrence. In accordance with the congressional intent, any medication Cope is required to take as a condition of his supervised release must be reasonably related to his treatment as a sex offender. Indeed, were the rule otherwise, a person on supervised release could arguably violate the terms of his release by neglecting to take prescribed cold medications. Therefore, we hold that any medication condition that the district court imposes on remand must be limited to medications reasonably related to Cope's treatment as a sex offender.”

Doe v. Bredesen, No. 06-6393 (6th Cir. Nov. 16, 2007) (Judge Griffin)

Appellant John Doe pled guilty in a Tennessee state court to various crimes including two counts of sexual battery. At the time of his conviction, Doe’s sexual battery offenses were termed by Tennessee law as “sexual offenses” and he was classified as a “sexual offender.” Under the then Tennessee, Doe had the right, ten years after the termination of his probation, to petition the circuit court to relieve him of the continued filing of registration and monitoring forms and to expunge all data stored in the central record system about him.

After Doe was convicted and sentenced, the Tennessee Legislature enacted a Sexual Offender and Violent Sexual Offender Registration, Verification, and Tracking Act (the “Registration Act”). The Registration Act reclassified Doe as a violent sexual offender and required him to comply with the requirements of the Tennessee Sexual Offender Registry for the rest of his life. The Tennessee Legislature also enacted a Sex Offender Monitoring Pilot Project Act (the “Monitoring Act”). The Monitoring Act authorized the Tennessee Board of Probation and Parole to subject convicted sexual offenders to a satellite-based monitoring program for the duration of their probation. In August 2005, Doe’s probation officer notified him that he would be required to wear a global positioning (“GPS”) device at all times beginning in September 2005.

Doe brought suit in the Federal District Court for the E.D.Tenn. arguing, inter alia, that because he was convicted before the effective date of the Registration and Monitoring Acts, the application of the Acts’ requirements to him violated the Ex Post Facto Clauses of the U.S. Constitution and the Tennessee Constitution, as well as various other constitutional rights including his right to due process and his privacy rights. The district court held that Doe’s claims were meritless; and it dismissed his complaint.

On appeal, the Sixth Circuit concluded that Doe’s ex post facto arguments with respect to the Registration Act were foreclosed by prevailing precedent, principally because of the generally accepted principle that the Ex Post Facto Clause is implicated only when a new law punishes retrospectively. All of the Judges agreed that, because the purpose of the Registration Act was civil and non-punitive, Doe’s ex post facto claims with respect to that statute were without merit.

The Judges on the panel, however, strongly disagreed in their legal analysis of the Monitoring Act. Doe argued that the GPS tracking device was a real burden on him and that it had a marked effect on his lifestyle and freedom of movement and action. He explained that he was required to carry at all times a relatively large box that contained the electronics necessary for the monitoring to take place. The had to be worn on the outside of any coat or other outer garment and therefore was obvious to any onlooker. The device is not waterproof, as a result of which Doe was not allowed to swim or participate in any other water activity; and baths at home were impossible.

The majority responded to those arguments by stating that the box was “relatively unobtrusive,” and it predicted that, over time, it would “only become smaller and less cumbersome as technology progresses.” For those, and similar reasons, the majority concluded that the mandated use of the GPS tracking device was not “punishment” because” there was no evidence to suggest that the observer knew the device to be one that monitored sex offenders, as opposed to criminals generally.” Based on those conclusions, the majority held that the retroactive application of the Monitoring Act to Doe did not violate the Ex Post Facto Clause.

Judge Damon Keith disagreed, and he wrote a strong dissent. He characterized the wearing of the GPS monitoring system as “a catalyst for public ridicule” akin to traditional forms of community shaming or humiliation; and he concluded that it bore “a striking resemblance to historical forms of punishment.” He wrote:

“I cannot, in good conscience, join my colleagues’ opinion which finds no constitutional violation in requiring Doe to wear a relatively large box as a symbol of his crime for all to see. The [Monitoring] Act, particularly the satellite-based monitoring program, as applied to Doe, is punishment, excessive, and indeed, the modern day ‘scarlet letter.’ I vigorously dissent.”

Al-Haramain Islamic Foundation v. Bush, No. 06-36083 (9th Cir. Nov. 16, 2007) (Judge McKeown)

The plaintiff in this case, a Muslim charitable foundation based in Oregon but operating in 30 countries around the world, sued the Government for various constitutional violations arising out the NSA’s Terrorist Surveillance Program, or TSP. The critical issue before the Court was the plaintiff’s proposed use of a document labeled “Top Secret” which the FBI had accidently given to the Foundation’s lawyers in 2004 and which apparently revealed that the Government had tapped the phone lines of members of the organization without a warrant. Once the Government realized its error, it confiscated the document, placed it under seal, and argued that it could not be used in the lawsuit since it was protected by the “state secrets” privilege.

In an earlier decision reported at Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006), Judge Garr King of the D.Or. denied the government's motion to dismiss the lawsuit based on the “state secrets” privilege, found that the existence of the TSP was not a secret, and ruled that "no harm to the national security would occur if plaintiffs are able to prove the general point that they were subject to surveillance as revealed in the [secret document], without publicly disclosing any other information contained in [that secret document]."

On appeal, the Government argued, inter alia, that the state secrets privilege mandates the dismissal of the lawsuit on the grounds that (a) the very subject matter of the litigation was a state secret; (b) the plaintiff could not establish a prima facie case (since, without the secret document, it could not establish that it suffered a “concrete and particularized” injury); and (c) and the government could not defend the lawsuit, without resorting to state secrets.

After reviewing the secret document in camera, the Ninth Circuit agreed that it was covered by the “state secrets” privilege and that the plaintiff was therefore precluded from introducing it to establish standing in this case, stating: "We acknowledge the need to defer to the executive on matters of foreign and national security and surely cannot legitimately find ourselves second-guessing the executive in this arena."

While that ruling was a partial victory for the Bush Administration, the Court also flatly rejected the Government’s extraordinary claim that the very subject matter of the lawsuit was a state secret. Writing for the Court, Judge McKeown wrote:

“In light of extensive government disclosures about the TSP, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret. Unlike a truly secret or ‘black box’ program that remains in the shadows of public knowledge, the government has moved affirmatively to engage in public discourse about the TSP. Since President Bush's initial confirmation of the program's existence, there has been a cascade of acknowledgments and information coming from the government, as officials have openly, albeit selectively, described the contours of this program. Thus, we agree with the district court that the state secrets privilege does not bar the very subject matter of this action.”

Clearly, this ruling will have a major impact the plaintiff foundation’s ability to prove its case against the Government, since it will not be able to use the very document that the Government inadvertently turned over to it which all but admitted that the Government had unlawfully spied on it. However, the ruling will probably have little impact on the more than 40 other lawsuits that have been brought against the telecommunication companies for their roles in helping the Government carry out its unlawful surveillance programs. It is those separate cases that have caused great alarm in the Government to the point that it is demanding retroactive immunity for the telecom companies for their role in helping the Government - but without detailing what those companies did.

U.S. v. Taylor, 499 F.3d 94 (1st Cir. Aug. 17, 2007) (Judge Torruella)

This decision is noted for its unusually broad endorsement of the use of U.S.S.G. § 5H1.11 - a policy statement of the U.S. Sentencing Commission which states: “Military, civic, charitable, or public service; employment-related contributions; and similar prior good works are not ordinarily relevant in determining whether a departure is warranted."

Talmus Taylor, was a much-admired, African-American elementary school music teacher in Massachusetts who took a second, part-time job as an income tax preparer. He was convicted at trial in that latter capacity on 16 counts of aiding and assisting the preparation of false tax returns, in violation of 26 U.S.C. § 7206(2). Taylor’s Guideline sentencing range was 30-37 months; but the district court (Judge Patti Saris of the D.Mass.) imposed a non-jail sentence of five years probation and a $10,000 fine.

In support of that sentence, Judge Saris noted that Taylor’s “level of service to the community is extraordinary community involvement which involves a traditional departure ground”; and she noted that Taylor had submitted 48 letters from teachers, administrators, students and friends extolling his many good works.

The Government appealed, arguing, inter alia, that Judge Saris had “misinterpreted” § 5H1.11; that the sentence was unreasonable; and that not only had Taylor failed to take responsibility for his actions, but “he had lied about his role in the fraud throughout the case.” (Id., at 97).

In the end, the Court concluded that it could not sustain a totally non-jail sentence, particularly since Taylor “repeatedly obstructed justice during the course of the investigation and trial by asking his clients to misinform the IRS and provide inaccurate testimony.” (Id., at 102). It also noted that “persons convicted of white collar crimes ‘are often expected, by virtue of their positions, to engage in civic and charitable activities.” (Id., at 104).

Nevertheless, the Court also firmly rejected the Government’s contention that Judge Saris had “misinterpreted” § 5H1.11, stating: “The district court appears to have properly interpreted the policy statement.” (Id., at 99). It then continued:

“In light of the testimony at Taylor's sentencing hearing and the vast number of letters documenting Taylor's extensive service to his community, we believe that the district court reasonably interpreted the facts to find that Taylor had engaged in extraordinary good works, and that as such, U.S.S.G. § 5H1.11 militated in favor of a lower sentence.” (Id., at 100).

In Brief

Tenth Circuit Holds That a General Waiver of Appeal Bars Appeal of Restitution Awards: U.S. v. Cooper, 498 F.3d 1156 (10th Cir. Aug. 21, 2007) - In a case of first impression for the Tenth Circuit, the Court held that a general waiver of the right to appeal a “sentence” includes the right to challenge all aspects of a restitution award imposed as part of the sentence. In its ruling, the Court noted that a majority of Circuits have concluded that such general waivers do not cover the right to appeal a restitution award (citing cases from the Second, Sixth, Seventh and Eighth Circuits). Notwithstanding the position taken by its sister Circuits, the Tenth Circuit pointed to the exceptionally broad language of the waiver of appeal at issue in this case as conclusive evidence that the parties intended to include all aspects of the sentence as part of the waiver of appeal that the defendant signed.

Court Holds That the Government’s Refusal to File a § 5K1.1 Letter In Retribution For a Defendant Exercising His Right to a Trial Constitutes an Unconstitutional Motive: U.S. v. Dorsey, 497 F.3d 1221 (11th Cir. Aug. 31, 2007) - Joining with similar rulings from the Third and Ninth Circuits, the Eleventh Circuit held that, when the Government refuses to file a motion for a downward departure under U.S.S.G. § 5K1.1 in retribution for a defendant exercising his constitutional right to a jury trial, such a reason constitutes an unconstitutional motive within the meaning of Wade v. U.S., 504 U.S. 181 (1992). In this case, since the district court denied, without any explanation, the defendant’s motion for a downward departure, the Court could not be sure whether or not the district court believed it had the authority to depart downward absent a motion by the Government. Accordingly, the case was remanded back to the district court for that determination.

Quote of the Week

"This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we had declared in effect 'Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If the prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court -- recalling the bitter tear shed by the Walrus as he ate the oysters -- breeds a deplorably cynical attitude towards the judiciary." Judge Jerome Frank, dissenting in U.S. v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2nd Cir. 1946).

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