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Richard Levitt's 2nd Circuit Criminal Law
- A Special Compilation of Unpublished Decisions and Other Documents They Don't Want You to See
- Editor's Note: A number of the decisions listed below have been stored in a format known as Portable Document Format (PDF). To view those decisions you will need to use the Adobe Acrobat Reader, a software program that can be downloaded - free of charge - from the Internet. If you don't have the Adobe Acrobat Reader installed on your computer, you should. You will find that utility useful on many different Internet sites. To download that program, simply click here
. The one drawback of the PDF format is that, unless you configure your Adobe Acrobat Reader Program to permit what is called "page-at-a-time-downloading" it can take a long time to bring up the full text of even small documents. If you want instructions on how to configure your Adobe Acrobat Reader Program to permit page-at-a-time downloading, click here.
- Table of Contents:
- U.S. v. Solorio - (PDF Format
) - This decision was actually published initially - in the Advance Sheets - at 37 F.3d 454 (9th Cir. 1994). Suddenly - and mysteriously - the Ninth Circuit decided (was ordered?) to expunge this decision from human memory. Without further explanation, it advised the world that the original decision was being withdrawn because "an unpublished disposition is being filed." (U.S. v. Solorio, 52 F.3d 827 (9th Cir. 1995)).
- When you read the original decision, you will understand why it was withdrawn; but Punch and Jurists does not believe that the interests of justice are served by expunging embarrassing decisions from the case books - or that the Government should ever have the right to bury such decisions at private funerals just so it can pretend that they were never written. Thus, we feel that it is both our duty and our right to publish the full text of the original decision for those who want to find out why the Ninth Circuit initially and publically ruled that the Government's misconduct in this case was so outrageous that a conviction had to be reversed.
- U.S. v. Bradfield - Government thought control? You decide. In early 1997, a panel of Fifth Circuit judges wrote a decision, originally reported at 103 F.3d 1207 (5th Cir. 1997) ("Bradfield I"), in which it discussed at length the dangers of letting a jury hear testimony from compensated witnesses. The Court noted that until 1987 the longstanding rule in the Fifth Circuit was that an informant who was paid a contingency fee was not competent to testify. Then, in U.S. v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987), the Fifth Circuit concluded that a contingency fee should not automatically disqualify a witness from testifying in a Federal criminal trial, but that the jury should evaluate the credibility of the witness's testimony in light of the fee arrangement. The new rule applied to all witnesses who were compen sated for their testimony "whether by a contingency fee, a sentence reduction, or some other quid pro quo." (Bradfield I, at 1217). The Court further concluded in Bradfield I that the district court had "plainly erred" by failing to give the jury specific instructions on evaluating the credibility of a compensated witness.
To make sure that future courts would not make the same error, Judges Politz, Wiener and Stewart ruled that if the district court fails to give the appropriate instruction on its own, and if the defendant fails to request such an instruction, then the Government must request that instruction. That ruling obviously riled up a lot of people; and, because testimony from compensated witnesses is so important to the Government, something had to be done. An unspecified "member in active service" on the Fifth Circuit approached the original panel and "suggested" that the original opinion be withdrawn and reissued in a watered-down version. Dutifully, Judges Politz, Wiener and Stewart reissued a new decision, now reported at 113 F.3d 515 (5th Cir. 1997) ("Bradfield II"). The new decision eliminated in its entirety the discussion about safeguards that should be used when compensated witnesses testify. Apparently, the Court's discussion about what a jury should be told when evaluating testimony from compensated witnesses was just too dangerous to survive; and now Bradfield I will simply disappear as if it had never been written.
While "they" may be able to purge Bradfield I from the case books and from the Internet, Punch and Jurists strongly believes that "they" should not be able - by simple edict - to delete that decision from our minds just so they can pretend that it was never written. Thus, we have posted the full, unexpurgated text of Bradfield I on this site to preserve it for posterity. When you read what the judges originally wrote, you will understand why so much pressure was exerted on the original panel to revise its opinion.
U.S. v. Luther Langford Taylor, 956 F.Supp. 622 (D.S.C. 1997)
- Attorney Lionel Lofton from Charleston, South Carolina initially sent us this extraordinary decision written by Judge Hawkins from the District of South Carolina. Because it was so significant, Punch and Jurists immediately published the decision on the Internet. Much later, the decision finally appeared in the Advance Sheets of the Federal Supplement at 956 F.Supp. 622 (D.S.C. 1997). Since that no longer assures that the case will be published in the final bound volumes of the Federal Supplement, Punch and Jurists has decided to keep the decision posted on its Unpublished Decisions Page - just to make sure the case won't be removed from the lexicon of significant criminal justice opinions.
In his 86 page decision, Judge Hawkins dismissed with prejudice a series of indictments against a number of members of the South Carolina State House due to "egregious prosecutorial misconduct" that was "so outrageous as to offend the sensibilities of the court." The case arose out of an FBI sting operation, code-named "Operation Lost Trust" in which the Government attempted to ensnare various legislators based on the efforts of its star witness, an erstwhile lobbyist-turned-snitch, who was basically allowed to "choose the legislators he wished to solicit . . . for whatever purpose - . . . and to protect those he wished . . . - as he saw fit." The snitch was well paid for his services, initially receiving $2,000 a month and later $4,000 a month from the Government, and he was even promised a bonus of $150,000 for the juicy convictions that were so desperately craved. The defendants charged a pattern of misconduct that extended beyond the local FBI and U.S. Attorney's offices to a pattern of dissembling by FBI Headquarters and the Department of Justice (and its infamously impotent Office of Professional Responsibility) as well. Specifically the defendants alleged that the Government had withheld key exculpatory evidence and had lied to the Court about the existence of Brady materials; that the Government had allowed perjured testimony to be presented to the Court; that the Government had engaged in improper pretrial publicity and in fundamentally unfair investigative practices; and that the Government had withheld evidence of its star witness' drug usage during the entire six year course of the proceedings.
Judge Hawkins agreed that the "nature and breadth of [the Government's] misconduct is indicative of the drastic steps the prosecution took to win these cases" (Order, at p. 3); that "the involvement of an FBI agent in this entire incident was - and is - shocking to this court" (Id., at p. 57); that it was "evident" that the star witness had "purchased and/or used cocaine at least periodically during the time he was employed in the sting through the times he testified" (Id., at p. 62); that the Government had "lost control of its star witness" (Id., at 82), who "at times . . . literally took over the investigation and directed its course" because the Government was afraid he would pull out of the investigation and "ruin their cases" (Id. at p. 67); that the Government had withheld "volumes of exculpatory materials" (Id., at p. 79); and that the witness had perjured himself at earlier trials and before the Grand Jury and that "the government had taken no steps to correct the matter." (Id., at p. 12). Judge Hawkins concluded with this harsh condemnation: "Most offensive to this court, however, is that the government sat silent — when it knew that its silence would not only foil the efforts of the defendants to fully develop defenses to which they were entitled, but would misrepresent facts to both the Grand Jury and the trial jury, and mislead the court to such an extent as to effect its rulings at trial and in collateral proceedings. As reluctant as this court is to call it such — this silence in several instances constitutes subornation of perjury." (Id., at 84). Just click on the case name above for the full text of this decision.
This tax protester case was tried before Judge R. Allen Edgar in Tennessee, commencing on October 12, 1993. The defendant was charged with willfully failing to file his income tax returns for 1989 and 1990. He was represented by Attorneys Lowell H. Becraft, Jr. of Huntsville, Alabama and Russell Leonard of Winchester, Tenn. His defense was that he had an innocent, good faith reason for not filing his tax returns, namely after reading the Internal Revenue Code and the Constitution, he came to the belief that the real nature of the income tax is that it is an excise tax which can only be imposed on corporations - not individuals. The jury apparently accepted that defense because it acquitted the defendant on both counts. Although the case is unreported (as are most if not all tax protester cases where the defendant wins) the full text of the transcript of the trial in that case is available by clicking on the highlighted name of the case above.
U.S. v. Rafael Mercedes, Docket No. 90 CR 450 (S.D.N.Y. 1997) (PDF Format
The defendant in this case was serving a State sentence when he was indicted on a Federal charge. He pled guilty to the Federal charge and was sentenced to an additional 30 months in prison, to run consecutively to his State sentence. When he finished his State term of imprisonment, he was released without being turned over to the Federal authorities. More than three years later, the Feds decided to pick him up and make him serve his Federal sentence. The defendant appealed to Judge Robert Sweet, arguing that the Government's failure to execute his Federal sentence until more than three years after he was released from State prison effectively invalidated his Federal sentence, and that the reimposition of the sentence would amount to a violation of constitutional dimension. The Court agreed and vacated the Federal sentence - which is probably precisely why this decision was never published.
Punch and Jurists has frequently commented on the BOP's policy of inducing prisoners into entering substance abuse rehabilitation programs with promises of sentence reductions, only to deny the prisoner any of the benefits of such programs after they have completed their assigned 500 hours of courses. (See, for example, the discussion of Cort v. Crabtree, 133 F.3d 1081 (9th Cir. 1997), which appeared in the June 23, 1997 issue of Punch and Jurists [Vol.4, No.25]). At that time we commented that many of the decisions that uphold the prisoners' claims that their rights have been violated are never published in the case books. It may just be coincidence; but it also could be that the Government does not want the general prison propulation (and the public) to know how the BOP regularly blind-sides the prisoners. This decision by Judge Rambo is one of the many unreported decisions in which a Federal Judge berates the BOP for the arbitrary abuse of power; and orders the BOP to grant the prisoner the benefits that Congress contemplated when it enacted 18 U.S.C. Section 3621(e)(2)(B). It is presented here in the hope that it may be of some assistance to defense counsel in fighting future mandates of the BOP.
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