Vol. 15, Nos. 8 &9	Covering Cases Published in the Advance Sheets through Mar. 3, 2008

New Supreme Court Ruling on the Enforcement of the Vienna Convention

• In Medellin, the Supreme Court, held, by a 6-3 vote, that neither a ruling by the World Court nor a directive by the President, both aimed at enforcing a consular rights treaty signed by the United States, amounted to “enforceable federal law” that could be imposed on Texas. In concluding that the Texas state courts were not required to grant a new hearing to a Mexican national on Texas’ death row who had procedurally defaulted his claims that the treaty had been violated, the Court rejected sweeping claims of Presidential power to force Texas to honor the treaty.
  
  

Guidelines and Sentencing Issues

• District Judge Jack Weinstein, long regarded as a free-thinking judicial maverick, has written another of his outspoken, thought-provoking epics in the Polizzi case. This 288-page long opus is a near-declaration of war on the judiciary’s long-standing abhorrence for anything that even remotely suggests the dreaded concept of jury nullification. Here, in a controversial ruling that is certain to be appealed, Judge Weinstein granted a defendant a new trial in a child pornography case after admitting that he has committed a “constitutional error” in failing to allow the defendant to advise the jury that he faced a five-year mandatory minimum sentence.
  
  
  
• In Ibanga, the Fourth Circuit held that District Judge Walter Kelley had committed “significant procedural error” by categorically excluding acquitted conduct from the information that it could consider in the sentencing process. Showing clear annoyance with Judge Kelley’s suggestion that the use of acquitted conduct at sentencing is now suspect in light of recent Supreme Court decisions, the Court issued a cursory, unpublished, per curiam decision that failed even to address most of the weighty issues that Judge Kelley had raised in his much-heralded decision.
  
  

Fifth Circuit Orders New Trial Based on Improper Witness Bolstering

• In Gracia, the Fifth Circuit reversed a criminal conviction on the ground that the prosecutor had used his closing argument to improperly bolster the credibility of government witnesses. In its ruling, the Court emphasized that it is “impermissible per se” for a prosecutor to offer personal assurances to the jury that government witnesses are telling the truth; and it said “We cannot permit the prosecutor's remarks to be swept under the rug by the broom of the harmless error doctrine."
  
  

Sixth Circuit Declines to Rehear Sex Offender "Scarlet Letter" Ruling

• In Doe, the Sixth Circuit declined, over the dissent of six judges, to rehear a panel’s decision upholding as constitutional a Tennessee statute that retrospectively requires all convicted sex-offenders to wear a highly-visible and obtrusive GPS tracking device. The panel concluded that there was no ex post facto violation because the purpose of device was not punitive in nature. Once again, Judge Damon ridiculed that reasoning, stating that the required use of the tracking device was “a form of shaming, humiliation, and banishment, which are well-recognized historical forms of punishment."
  
  

Medellin v. Texas, No. 06-984 (U.S. Sup. Ct. Mar. 25, 2008) (Justice Roberts)

By a 6-3 vote, the Supreme Court held that neither a ruling by the World Court nor a directive by President Bush, both aimed at enforcing a consular rights treaty signed by the United States, amounted to “enforceable federal law” that could be imposed on the courts in Texas to require them to relax their criminal procedures and grant a new hearing to a Mexican nation on death row. The Court’s decision addressed a number of unresolved issues at the intersection of state, federal and international law regarding the enforcement of both rulings by the World Court and treaties that have been ratified by the United States.

The Court’s ruling in this case came on an appeal by Jose Medellin, a Mexican national, who was convicted in 1994 in a Texas state court of the rape and murder of two teenage girls. Medellin was never informed of his right to seek assistance from Mexican consular officials, as required by Article 36(1)(b) of the Vienna Convention on Consular Relations (the “Vienna Convention”). The Vienna Convention, which was ratified by the United States in 1969, has long raised questions about its effect on domestic law and whether it automatically gives individuals a right that can be enforced in the state and federal courts.

By the time Medellin’s lawyers raised the Vienna Convention issue with the Texas courts, the Texas courts ruled that the claim had been procedurally defaulted because Medellin had failed to raise it at trial or on direct review as required by Texas law.

The Mexican Government then brought suit against the United States before the World Court, known formally as the International Court of Justice (the “World Court” or the “ICJ”), which is located in the Hague. The suit was brought on behalf of Medellin and 50 other Mexicans being held in U.S. prisons who claimed that their rights under the Vienna Convention had been violated.

The ICJ, which was established pursuant to the United Nations Charter to adjudicate disputes between member states, finally ruled that, based on the various violations of the Vienna Convention, the 51 named Mexican nationals were entitled to review and reconsideration of their state-court convictions and sentences in the United States.

After the ICJ’s ruling, President Bush issued a directive, through a Memorandum to the Attorney General (the “President’s Memorandum”), in which he stated: “I have determined, pursuant to the authority vested in me as President by the Constitution and the laws of the United States of America, that the United States will discharge its international obligations under the decision of the International Court of Justice . . . , by having State courts give effect to the decision in accordance with general principles of comity in cases filed by the 51 Mexican nationals addressed in that decision.”

Relying on the ICJ's decision and the President's Memorandum, Medellin filed an application for a writ of habeas corpus in Texas. He argued that, by virtue of the Supremacy Clause, the ICJ’s ruling “is a binding federal rule of decision that pre-empts contrary state limitations on successive habeas petitions.” In addition, he argued that, pursuant to the President’s power "to establish binding rules of decision that preempt contrary state law," the ICJ’s ruling was binding on state courts by virtue of the President’s Memorandum.

The Texas Court of Criminal Appeals dismissed Medellin's application as an abuse of the writ under state law, given Medellin's failure to raise his Vienna Convention claim in a timely manner under state law.

The Supreme Court then granted certiorari and agreed to decide two questions. “First, is the ICJ's judgment . . . directly enforceable as domestic law in a state court in the United States? Second, does the President's Memorandum independently require the States to provide review and reconsideration of the claims of the 51 Mexican nationals named in [the ICJ’s ruling] without regard to state procedural default rules?”

In a complex ruling, the majority concluded that rulings by the World Court do not automatically trump state laws and procedures; and that, while the President “has an array of political and diplomatic means to enforce international obligations, but unilaterally converting a non-self executing treaty into a self-executing one is not among them.”

Writing for the majority, Chief Justice Roberts stated that while no one disputes that the World Court’s decision constitutes an international law obligation on the part of the United States, “not all international law obligations automatically constitute binding federal law enforceable in United States courts.” He explained that the legal effect of a World Court decision is controlled by Article 94 of the United Nations Charter, which provides that “each member of the United Nations undertakes to comply with the decision of the World Court in any case to which it is a party. But, he wrote, “undertakes to comply” suggests no more than a promise by a country to do its best. Enforcement depends upon a diplomatic, not a judicial, remedy; and, he added, to turn over to the judiciary the task of deciding when a treaty becomes domestic law would be to give the courts “the power not only to interpret but also to create the law.”

Turning to the question of the President’s authority to make the World Court decision binding domestically, the Court said that the Chief Executive’s power to act, as with the exercise of any governmental power, must stem either from an act of Congress or from the Constitution itself - and it found no such authorization. In an unusually blunt rejection of the President’s claims of sweeping power, Justice Roberts quoted James Madison, who wrote in The Federalist that the President “in whom the whole executive power resides cannot of himself make a law.” Justice Roberts then commented that would “seem an apt description” of President Bush’s claim that he could unilaterally turn the Vienna Convention into domestic law.

Justice Breyer dissented in an opinion that was joined by Justices Souter and Ginsburg. He warned that the majority’s ruling would “threaten the application of provisions in many existing commercial and other treaties and make it more difficult to negotiate new ones.” He also appended a list of dozens of treaties that he felt might be jeopardized.

U.S. v. Polizzi, No. 06-CR-22 (JBW) (E.D.N.Y. Apr. 1, 2008) (Judge Weinstein)

Throughout his illustrious career, District Judge Jack Weinstein has been considered a free-spirited legal maverick who is unafraid to take on the judicial establishment; and his legacy of memorable and often inspirational opinions is huge. We can now add to that legacy the instant 288-page long opus that addresses a topic that most judges dread even to think about, much less discuss - namely, jury nullification.

In the instant case, Judge Weinstein not only presented a number of compelling arguments in which he dissected some of the conventional wisdom that rejects outright any form of jury nullification, he also issued an open challenge to the courts to reconsider - at least in some cases - their opposition to letting jurors know the impact that their verdicts will have on the sentences that will be imposed.

In the end, Judge Weinstein concluded that he had made a “constitutional error” when he denied defendant’s motions to inform the jury that he faced a mandatory minimum five-year sentence in this child porn case; and he therefore granted the defendant’s motion for a new trial in order to correct that “prejudicial error.” He wrote in part:

“The complexity of modern United States criminal law and the general public’s lack of detailed knowledge of federal statutory provisions require that, in the few cases where necessary, the jury be informed of such matters as the required minimum term of incarceration that will follow from its verdict so that it can exercise its constitutionally mandated historic role. Cases which have rejected this view, on the ground that it permits a form of impermissible ‘nullification,’ have not followed the Sixth Amendment as it must be interpreted after recent Supreme Court originalist holdings.

“Consideration of jury power contemporaneous with the Sixth Amendment’s adoption leads to the conclusion that this court committed constitutional error when it denied defendant’s request to inform the jury of the statutory mandatory five-year minimum applicable to the [child pornography] counts. A new trial on those counts, granted pursuant to defendant’s Rule 33 motion, will be required to correct that prejudicial error. The requested instruction might well have led to a hung jury or a verdict of not guilty or not guilty by reason of insanity.”

The press has already weighed in on this ruling with lots of rabble-rousing hostility. Rupert Murdoch’s New York Post ran an article entitled “Judge’s Bizarre Ruling Aids Perv” in which it asserted that Judge Weinstein’s ruling “turns hundreds of years of legal precedent on its head”; and the New York Daily News quickly chimed in with a featured article under the headline “Father convicted of downloading child porn not given jail time.”

While Judge Weinstein’s ruling will almost certainly be appealed, and while it is probable that the Second Circuit will dismiss much of his reasoning as heretical and incendiary, much of his scholarly analysis deserves critical attention and study - especially in an era when there has been a massive proliferation of mandatory minimum statutes both that the state and the Federal level. [In fact, one notable feature of Judge Weinstein’s ruling is his listing, in some 50 pages of appendices, of most of the mandatory minimum statutes at both the state and Federal level that have literally changed the ground rules and the legal landscape of sentencing in America.]

Peter Polizzi was charged with, and convicted after a jury trial of, twelve counts of receiving and eleven counts of possessing child pornographic images in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). Before it rendered its verdict of guilty, the jury was not informed of the five-year mandatory minimum sentence a conviction on the receipt counts entailed, despite the defendant’s request for such an instruction.
Told of that five-year mandatory minimum after the verdict was delivered, Judge Weinstein wrote that “a number of jurors expressed distress, indicating they would not have voted to convict had they known of the required prison term. They had assumed that the defendant would receive treatment, not long incarceration.”

Polizzi then moved for a new trial pursuant to Rule 33 of the Fed.R.Crim.P.; and he principally raised two issues: First, are the underlying child pornography statutes and the mandatory minimum sentence constitutional facially and as applied? Second, should the jury have been informed of the mandatory minimum before it began its deliberations?

While Judge Weinstein observed that a number of the defendant’s challenges about the constitutionality of the pornography statutes at issue raised some “serious questions” (which he called upon the appellate courts and Congress to revisit), he also concluded that he was bound by prevailing precedent to reject those challenges.

In addressing the second issue, however, he agreed with the defendant’s contention that the failure to allow the defendant to advise the jury of the applicable five-year mandatory minimum sentence constituted a denial of the defendant’s Sixth Amendment jury rights. He wrote: “Defendant’s request that the jury be informed of the five-year mandatory minimum should have been granted. A brief historical review demonstrates the right of the jury in this case under the Sixth Amendment of the Constitution to know the sentencing impact of its decision - - a right shared by the defendant.” (Id., at 159).

Facing the issue of jury nullification head-on, Judge Weinstein noted that the defendant had “repeatedly moved to have the jury informed of something it would not be expected to, and did not, know - - the mandatory five-year minimum prison sentence required were it to find the defendant guilty of receiving as charged.” He then wrote: “Such an instruction is different from one inviting the jury to nullify. It accords fully with Sixth Amendment rights to a jury which understands the effects and implications of its decision.” (Id., at 224).

Much of Judge Weinstein’s rationale for his ruling rests on the premise that recent cases by the Supreme Court, such as Apprendi v. New Jersey, 530 U.S. 466 (2000) and U.S. v. Booker, 543 U.S. 220 (2005) and their progeny, have created a “sea change” in Sixth Amendment law and sentencing practices and have “not left much doubt of the Court’s belief that the right to a jury as embodied in the Sixth Amendment is one of the Constitution’s most cherished liberties.” (Id., at 196) He then concluded:

“[T]he Supreme Court’s new emphasis on colonial and British history contemporaneous with adoption of the Sixth Amendment now requires, in the narrow special group of cases illustrated by the current one, that the jury know of the mandatory minimum. A well-informed jury responsive to the needs of both society and the defendant might well consider, given the special circumstances of the present case, that intensive psychiatric treatment and control outside of prison is the desirable end to this criminal litigation. Such an approach might, in these unusual circumstances, do more to protect society than a long prison term with the rudimentary psychiatric help likely to be available behind prison walls. It would recognize that ultimately prisoners must be released and that the return of unrehabilitated prisoners to society presents a serious danger.” (Id., at 228).

Anticipating the probability that his decision would be appealed, Judge Weinstein also wrote:

“The instant decision, requiring notice to the jury of the applicable minimum sentence, does not contravene precedents of the Court of Appeals for the Second Circuit against nullification suggestions to the jury by court and counsel. An instruction informing jurors of the five-year mandatory minimum sentence if the defendant is found guilty is not the same as a pronullification instruction. ‘This is an argument for the right of the jury to have that information necessary to decide whether a sentencing law should be nullified. This is not an argument for the right to have the jury instructed on jury nullification’.” (Id., at 226) (Citing Judge Wiseman’s brilliant decision in U.S. v. Datcher, 830 F. Supp. 411, 412-13 (M.D. Tenn. 1993)).

Whatever the ultimate outcome of this decision, it is thought-provoking and compelling; and it presents a fresh look at a topic that seems to send tremors of apoplectic fear to the judiciary. Instead of treating that topic as a sacred cow that can’t be discussed, Judge Weinstein has presented a creative argument why juries should be told of some of the obscene sentences now mandated by our mandatory minimum statutes.

For more on this decision, see “Thoughts on United States v. Polizzi,” by Orin Kerr, as posted on the Volokh Conspiracy on April 7, 2008.

U.S. v. Ibanga, No. 06-4738 (4th Cir. Apr. 1, 2008) (Unpublished) (Per Curiam)

In U.S. v. Ibanga, 454 F.Supp.2d 532 (E.D.Va. Oct. 5, 2006) (P&J, 09/04/06) (“Ibanga I”), Judge Walter Kelley thoughtfully explained why he felt that 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. He wrote, in part:

“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 [U.S. v. Watts, 519 U.S. 148 (1997)] and its progeny recently was called into question by the Supreme Court's decision in U.S. v. Booker, 543 U.S. 220 (2005).”

In reversing Judge Kelley’s decision, the Court simply said that he had "committed significant procedural error, . . . by categorically excluding acquitted conduct from the information that it could consider in the sentencing process." In other words, the Court essentially held that a district court must consider acquitted conduct at sentencing, even after Blakely and Booker. The Court’s cursory opinion that starts this way:

“This appeal by the government arises out of a drug trafficking and money laundering prosecution of a group of individuals that included Michael Ibanga. The jury convicted Ibanga of conspiracy to launder money and acquitted him of the drug trafficking charges. Nonetheless, the district court found at sentencing that the government had proven by a preponderance of the evidence that Ibanga had trafficked in 124.03 grams of methamphetamine (meth). Although acquitted conduct proven by a preponderance of the evidence may be taken into account in sentencing, the district court sentenced Ibanga to a prison term that did not reflect any drug trafficking. The government appeals Ibanga’s sentence, arguing that the district court contravened 18 U.S.C. § 3661 by categorically refusing to consider acquitted conduct -- Ibanga’s drug trafficking found by the court -- in determining his sentence. Because it appears that the district court applied a standard that would categorically exclude consideration of acquitted conduct in every case, we vacate Ibanga’s sentence and remand for resentencing.”

One knew that Judge Kelley’s decision would not go over well with the ultra-conservative Fourth Circuit. But who could have imagined the petty and scornful ways the Fourth Circuit would choose to vent its anger at Judge Kelley for his audacity in suggesting that the austere judges on the Court of appeals might have to reconsider some of their embedded principles about the use of acquitted conduct at sentencing?

First, the Court waited some 18 months to release its ruling - leading many to believe that the Court was actually engaged in a serious consideration of some of Judge Kelley’s detailed and scholarly analysis of the issues involved. Second, when it finally did rule on Ibanga I, the Court issued an unsigned and cursory decision that never even addresses most of the weighty issues that Judge Kelley had raised. And finally, to add insult to injury, the Court decided to reject Judge Kelley’s concerns in an unpublished decision - a procedure that effectively leaves the issue of the use of acquitted conduct unresolved for all the district judges in the Fourth Circuit except Judge Kelley.

At a time when many courts are acknowledging that Apprendi and Blakely and Booker have created s “sea change” in sentencing practices, it is disheartening to find a court so anxious to discourage any meaningful discussions about an issue that logically flows from those decisions and that has already generated huge controversy.

U.S. v. Gracia, No. 07-40245 (5th Cir. Mar. 31, 2008) (Judge Wiener)

In a rare ruling, a panel from the Fifth Circuit reversed a criminal conviction on the ground that the prosecutor had used his closing argument to improperly bolster the credibility of government witnesses. The Court concluded that the prosecutorial misconduct was plain error and that it seriously affected the “fairness, integrity, and public reputation” of defendant’s trial.

The defendant in this case, Apolinar Gracia, was a passenger in a border-crossing Impala that contained 50 kilos of cocaine. The key issue for trial was whether Gracia knew that he was sharing a ride with a half a million dollars in drugs; and the key evidence was Gracia’s confession, which he allegedly made in front of two border control agents. The prosecution only had the agents’ testimony on this issue, because the confession was not recorded, nor was there any written statement.

During its closing statements, the prosecution made four sets of comments to prop up the agents’ testimony. First, the prosecutor expressed his opinion to the jury that the agents were "very, very credible" witnesses ("Statement One"). Second, the prosecutor asked the jurors rhetorically whether they thought that an agent "who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia"; and whether the agents "would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury" ("Statement Two"). Third, the prosecutor told the jury: "I'm going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered" ("Statement Three"). Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents "got out of bed" on the day they arrested Gracia and decided that this was "the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia" ("Statement Four").

The Court found those comments offensive - both separately and collectively. After analyzing the impact of each of those statements on the jury in the context of the dearth of evidence supporting the Government’s case, the Court wrote:

“We acknowledge that, more often than not, we have held instances of witness bolstering by prosecutors to be error but have gone on to find such error harmless rather than reversing the jury conviction of a defendant. The instant matter is distinguishable from the cases in which we have refused to reverse convictions, however, because of the degree of the prosecutor's violations in comparison to the dearth of evidence of Gracia's guilty knowledge. As Gracia could not have been convicted without the agents' testimony, we cannot conclude that the prosecutor's bolstering constituted an unprofessional but harmless attempt to right the scale and rebut defense counsel's earlier veiled innuendo that the agents might be less than fully truthful. In this case, the jury's determination of guilt or innocence hinged entirely on whether Gracia had knowledge of the hidden drugs and that, in turn, hinged entirely on the credibility of the agents. The relative strength of the government's case is the telling. The prosecutor's plainly erroneous statements led the jury to substitute the government's credibility assessment of its own agents for the jurors' independent credibility call, thereby casting serious doubt on Gracia's guilty verdict. We are convinced that, under the discrete facts of this case, the prosecutor's remarks affected Gracia's substantial rights and seriously affected the fairness, integrity, and public reputation of his trial.

“Witness bolstering is particularly injurious when, as here, it involves the testimony of the only witnesses (and virtually the only inculpatory evidence) against a defendant. The testimony of the agents was the only evidence tending to prove Gracia's knowledge of the presence of drugs in the car's secret compartment. We cannot permit the prosecutor's remarks to be swept under the rug by the broom of the harmless error doctrine. In this case, a slap-on-the-wrist in obiter dicta will not suffice. The unmistakable misconduct in the bolstering of the government's witnesses at Gracia's trial is precisely the type of conduct that cannot be condoned.”

Doe v. Bredesen, No. 06-6393 (6th Cir. Mar. 31, 2008) (En banc) (Per Curiam)

In Doe v. Bredesen, 507 F.3d 998 (6th Cir. Nov. 16, 2007) (P&J, 10/15/07) (“Doe I”), a divided panel from the Sixth Circuit concluded that a new Tennessee law that required all convicted sex offenders to wear a new GPS tracking device did not violate the Ex Post Facto Clause.

The GPS device at issue allows Tennessee authorities to monitor a sex offender’s movements. Among other things, the device is not waterproof, which means that the offender can’t go swimming and can’t even take a bath. The device is also very noticeable: it measures 6 inches by 3.25 inches by 1.75 inches, and it must be worn outside a person’s clothes or coat, making it a rather prominent badge of one’s sex offender status.

The anonymous plaintiff in this case challenged the retroactive application of the statute to him principally on the grounds that the application of the new statute to him violated the Ex Post Facto Clause. The majority reasoned that the law was not unconstitutional because wearing the visible black box is not punitive in nature, stating in part: “We agree with the district court that the Tennessee Legislature's purpose in enacting the challenged provisions of the [Act] was to create a civil, nonpunitive regime.”

In a strong and eloquent dissent, Judge Keith ridiculed that ruling, arguing that the wearing of the GPS monitoring system was “punishment, excessive, and indeed, the modern day ‘scarlet letter’." He also wrote that the wearing of the GPS monitoring system was "a catalyst for public ridicule" akin to traditional forms of community shaming or humiliation.

After losing his appeal, the plaintiff sought a rehearing en banc; but his motion failed to gain the support of a sufficient number of the active judges to grant him a rehearing. However, Judge Keith picked up the support of five other judges; and he again wrote a notable and vigorous dissent. Amplifying on some of his earlier arguments in Doe I, he wrote:

“I believe that the retroactive application of the Surveillance Act constitutes an Ex Post Facto Clause violation because (1) as a catalyst for public ridicule, it is a form of shaming, humiliation, and banishment, which are well-recognized historical forms of punishment; (2) it promotes the traditional aims of punishment; and (3) it is excessive in forcing Doe to broadcast his sex offender status not only to those who choose to inquire, but also to the general public. The majority, in upholding the Surveillance Act, deliberately turned a blind eye to the obvious effects of forcing Doe to wear such a large box on his person. . . . We must be careful, in our rush to condemn one of the most despicable crimes in our society, not to undermine the freedom and constitutional rights that make our nation great. I dissent.” (Internal citations omitted).

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