Highlights of this Issue:

Leading Cases 

The Santiago-Becerril case is an example of what some might call judicial interference with a defendant's right to call witnesses in his own defense.

The DeFries case is one of those monster RICO cases which involves two issues of note - the "mandate rule" which divests a district court of jurisdiction one a notice of appeal has been filed; and the broad scope of the RICO forfeiture statutes.

U.S.S.G. and Sentening Issues

The Dos Santos case addresses the jurisdictional bases for Writs of Error Coram Nobis; and a district court's broad and somewhat questionable ruling that sentencing entrapment can never be a valid defense in the Second Circuit.

The Norman case explores one of the few limitations on the Guidelines' enhancement for obstruction of justice.

Evidence and Discovery Issues

The Call and Gaines cases explore the issue of the use of DNA and polygraph evidence in criminal trials in the wake of the Supreme Court's 1993 ruling in Daubert v. Merrell Dow Pharmaceuticals.

Constitutional Issues

In the Trainor case, the Court granted a motion to suppress because a search warrant failed to meet the particularity standards of the Fourth Amendment.

Civil Rights Issues

The Spiller case emphasizes some of the critical burdens of proof that must be met in a civil rights action against a municipality for damages arising out of police misconduct.  

United States v. Santiago-Becerril, 130 F.3d 11 (1st Cir. 1997) (Judge Campbell)

Judicial intimidation?  Pshaw!  That just doesn't happen in America.  But here's a case that may test your beliefs.  It's a case that dealt primarily with the many ways in which the Speedy Trial clock can be stopped.  Buried deep at the end of the case is a brief discussion of Judge Hector Laffitte's concept of allowing a defendant to present witnesses in his own defense - without any judicial intimidation or interference.  Read on - and you be the judge!

On November 11, 1994, the defendant in this case was arrested on a charge wrongful taking of a motor vehicle by force and violence, in violation of 18 U.S.C. § 2119(3).  After a 15 month delay (which the court ruled was not presumptively prejudicial), trial began on January 23, 1996.  At trial, the defendant sought to call his stepmother, Wanda Caceres, to the stand to testify about certain matters that he felt would be helpful to his defense, including her post-offense conversations with the defendant and her efforts to purchase airline tickets for them to travel to the mainland.  When the stepmother was called to the stand, Judge Laffitte engaged in what the First Circuit admitted was a "relatively detailed and strongly stated"  warning."  Only a portion of that warning is included in the official text of the case, but what is there is quite revealing.

Judge Laffitte started with this statement: "Caceres [sic], I want to advise you - and listen to me carefully because this may have serious - I would say severe consequences for you.  Listen to this, what I am going to tell you.  If you're going to testify what [defense counsel] said you would, then I have to warn you that you will be incriminating yourself and you will be violating two statutes: One will be accessory after the fact . . . [and] that means you - shall be imprisoned not more than 15 years. . . . Second, . . . there's misprision of a felony. . . .  It seems to me that it is my duty as a judicial officer to advise you, to warn you, that if you testify pursuant to what [defense counsel] said - and that's your decision - you will be incriminating yourself under oath in a record, and you may be exposed to 15 years in prison up to the maximum and also three years but [sic] misprision of a felony which might be served concurrently.  But with your testimony on the record, that will be enough to take it to a grand jury and obtain an indictment against you, and you will be a defendant in this court. . . . And there is no parole, no probation. . . .  I'm not coercing you into not testifying.  I'm telling you may [sic] testify if you wish.  If you wish to testify that's fine.  You just go ahead and testify.  I'm simply telling you the consequences that might ensue . . . ."  (Id., at 23-24) (Emphasis added).

Not surprisingly, the stepmother quickly decided that she would not testify on her son-in-law's behalf.  After he was convicted, the defendant appealed, arguing that the judge's "strongly worded advice . . . exerted such influence on her so as to prevent her from freely choosing whether to testify or not, in violation of [his] due process rights to present witnesses in his own defense."  (Id., at 23).

The First Circuit's decision on that issue suggests a scent of revisionist history.  True, said the Court, the Supreme Court has stated that "in the light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness' mind as to preclude him from making a free and voluntary choice whether or not to testify."  (Webb v. Texas, 409 U.S. 95, 98 (1972)). [The First Circuit distinguished Webb, where the Supreme Court found improper judicial intimidation, principally on the grounds that the witness in Webb never had the assistance of counsel, whereas here the district court finally appointed an assistant Federal public defender to advise her - after he had thoroughly frightened her with his threats.]

True also, the Court acknowledged, "different trial judges might handle the situation differently."  (Id., at 26).  But after all, in this case "there was no repetition of warnings after an informed announcement of an intent to testify, nor did the court keep insisting on a decision not to testify . . . [Thus] we conclude that Caceres was not ‘badgered' by the court into declining to testify.  Rather, the district judge's warnings were meant to strengthen rather than weaken the voluntariness of Caceres's choice by informing her of the risks inherent in her proposed testimony and of her constitutional right not to testify."  (Id.)

Counseled or not, it strikes us that once a Federal judge assures a witness that she "will be" prosecuted if she testifies, no lawyer in the world would defy that threat and advise the client to proceed.  So is that judicial intimidation?

United States v. DeFries, 129 F.3d 1293 (D.C. Cir. 1997) (Per Curiam)

It is little wonder that RICO charges have become the Holy Grail of Federal criminal prosecutions.  The RICO laws are so complex, so confusing and so multi-faceted that they can cover just about anything.  Just consider the statutory definition of the term "racketeering activity".  That definition is set forth in a single clause of 18 U.S.C. § 1961(1) which contains 456 words, separated by 77 commas; which makes reference to 19 separate generic types of crime (both State and Federal)  and 56 (at last count) specific Federal crimes, and which is part of a single sentence that contains 856 separate words.  It is no wonder that one court once described the RICO statute as "one of the most confusing crimes ever devised by the United States Congress."  Casey v. Department of State, 980 F.2d 1472, 1477 (D.C. Cir. 1992).

This is an appeal from numerous RICO convictions obtained after "several months" of trial.  As can be expected, the case has a long and tortured history; and it covers multiple, complex issues.  For example, the case delves into such esoteric concepts as the definition of the word "enterprise" - another gem of universality that includes "any group of individuals associated in fact although not a legal entity."  In the end, the D.C. Circuit vacated the convictions, principally because the district court violated the "mandate rule" and because the jury instructions given were improper in that Judge Jackson removed from the jury's consideration an essential element of the crime, namely whether the Government had proven the existence of an "enterprise."

The case, however, is noted here for two issues: a violation of the "mandate rule" and the Court's discussion of the RICO forfeiture laws, which are, without doubt, among the most far-reaching, yet ill-conceived provisions of Federal criminal law.

The mandate rule stands for the proposition that once a notice of appeal has been filed, including interlocutory appeals, that action " ‘confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal'. . . . The district court does not regain jurisdiction over those issues until the court of appeals issues its mandate."  (Id., at 1302).  The purpose of that rule is to prevent "the waste of judicial resources what might result if a district court, prior to the issuance of the appeals court's mandate, proceeds with a case, ruling on motions and hearing evidence, after which the appeals court reverses its original decision on rehearing."  (Id.).

The mandate rule issue arose in this case as follows: Prior to trial, Judge Jackson dismissed the various mail fraud counts that were part of the case.  The Government immediately filed an interlocutory appeal, challenging that decision and requesting the Court of Appeals to issue its mandate reinstating the mail fraud counts.  As soon as jury selection was completed, Judge Jackson commenced trial, even though the Court of Appeals had not yet issued its mandate.  He did so in large part in reliance on the Government's assurances that the court had proper jurisdiction to proceed, based on the Second Circuit's decision in U.S. v. Salerno,  868 F.2d 524 (2nd Cir. 1989).  That case also involved an interlocutory appeal that was not decided by the time the case was ready for trial.  Nevertheless, the Second Circuit ruled that the district court still had proper jurisdiction when the case went to trial because, in that case, there was "the likelihood that the district court's ruling on [the double jeopardy issue involved in that case] would be affirmed" on appeal.

In the instant case, a week after the trial commenced, the D.C. Circuit issued its mandate in which it reversed Judge Jackson's decision to dismiss the mail fraud counts and reinstated those counts.  (See, U.S. v. DeFries, 43 F.3d 707 (D.C.Cir. 1995)).  The Government argued that because the mandate was issued before the trial had proceeded very far, there was neither confusion nor any waste of judicial resources, and thus the commencement of the trial before the issuance of the mandate did not really contravene the purposes of the general rule on jurisdiction.  It again cited Salerno.  The Court held that Salerno was inapposite because in that case the Second Circuit had "led the district court into believing it had jurisdiction to proceed with the trial.  We gave no such message to the district court."  (Id., at 1303).  It also held: "That we ultimately sustained the district court's jurisdiction in this case is of no moment; district court jurisdiction cannot turn on retrospective examination of appeals court action."  (Id.).  Thus, because the district court never had jurisdiction to commence the trial, it vacated the convictions and directed the Government to retry the case if it so wished.

At the conclusion of the now-defunct trial, the district court had ordered the defendants to forfeit, pursuant to the criminal forfeiture provisions contained in 18 U.S.C. § 1963(a)(1)-(3), huge severance payments they had received during the period between 1985 and 1990.  Because the RICO convictions were reversed, the Court noted that the accompanying forfeitures also had to be reversed.  However, "to facilitate disposition of the cases on remand", the Court addressed two of the RICO forfeiture issues that had been raised by the defendants on appeal.

First, it considered the type of "causal link" that must be established between the property forfeited and the RICO violation. Under the statute, only property "acquired or maintained" through racketeering activity or "derived from any proceeds . . . obtained, directly or indirectly from racketeering activity" is subject to forfeiture.  The defendants, who were accused, inter alia, with ballot tampering during a union election, argued that the Government had failed to establish an adequate causal link between their ballot tampering and the electoral triumphs that afforded them the salaries they forfeited.  In their view, the Government's causal burden obligated it to establish that their allegedly illegal ballot tampering had changed the outcome of the elections they won.

The Court disagreed.  It acknowledged that the D.C. Circuit had not yet articulated a test for determining whether the Government has established an appropriate causal relationship between the property to be forfeited and the statutory violation.  However, it quickly adopted the "but-for" test that was first adopted by the Seventh Circuit in U.S. v. Horak, 833 F.2d 1235, 1242-43 (7th Cir. 1987), and which was subsequently adopted by the First, Second and Third Circuits.  Horak held that "in order to win a forfeiture order, the government must show . . . that [the defendant's] racketeering activity were a cause in fact of the acquisition or maintenance of" the property sought.  (Emphasis added).  Based on that, it ruled that the defendants could not contest that "but for" the elections, which the district court had found to be tainted by their racketeering activity, they would not have received their salaries.

Second, the defendants contended that the district court erred in ordering them to pay, as part of the forfeiture order, amounts that had already been paid as taxes on their salaries and severance payments - without granting any credit for those taxes paid to the same Government.  Again, the D.C. Circuit disagreed.  Citing a long list of cases, the Court held that "a deduction for taxes could create unwarranted complexities in the administration of the statute."  (Id., at 1314).   In fact, because the very purpose of a RICO forfeiture is to punish, that punitive purpose "should not be subverted by a rule that could obscure that purpose with technical tax considerations."  (Id., at 1315).  Accordingly, the Court simply concluded that "RICO does not require the prosecution to prove or the trial court to resolve complex [tax] computations."  (Id.)  For more on the origins of the expansive RICO forfeiture laws, see the Quote of the Week below.

Spiller v. City of Texas City, Police Dept., 130 F.3d 162 (5th Cir. 1997) (Judge Benavides)

This case presents a fairly comprehensive analysis of the burdens of proof that must be met by a claimant who seeks to recover damages from a municipality arising out of the ever-expanding horizon of police brutality.  The Court explained that to hold a municipality or local government liable under 42 U.S.C. § 1983 for the misconduct of one of its employees, "a plaintiff must allege that an official policy or custom ‘was a cause in fact of the deprivation of rights inflicted.' . . . To satisfy the cause in fact requirement, a plaintiff must allege that ‘the custom or policy served as the moving force behind the [constitutional] violation' at issue . . . or that her injuries resulted from the execution of the official policy or custom. . . . The description of a policy or custom and its relationship to the underlying constitutional violation, moreover, cannot be conclusory; it must contain specific facts."  (Id., at 167) (Internal citations omitted.)

In this case, an African American citizen sought damages after she was arrested for disorderly conduct, confined in a jail cell, and then released after the criminal complaint against her was promptly dismissed.  The facts present an example of harassment by a off-duty white cop who refused to move his truck from a pump at a gas station after he had filled up with gas.  After several polite entreaties from the claimant to move the truck were ignored from, she finally told the cop, who was not in uniform, to "move his damn truck."  Laughing at her, the cop arrested her and charged her with disorderly conduct under a Texas statute that permits such charges if a person uses "profane, obscene or threatening" language against a police officer.

In reversing the district court's order which dismissed the claim against the off-duty cop, the Court said that while the word "damn" might be considered profane in some circumstances, it was not here because it was directed at the truck.  Thus, it reinstated the claims against that defendant.  The Court also listed a number of cases where the courts have found that it was not actionable to call a policeman such things as an "idiot" or a "fool."

On the issue of municipal liability, the Court affirmed the dismissal of those charges.  It concluded that the claimant's allegations that the off-duty cop "was acting in compliance with the municipality's customs, practices or procedures" was insufficient because they were conclusory and because they failed to identify how they were causally connected to the actions of the off-duty cop.  What becomes clear is that as claims for damages arising out of police brutality escalate, the courts will begin to see their role as protectors of the purse-strings of the thousands of municipalities spread across the country.

QUOTE OF THE WEEK  - The careful thought that went into the enactment of the RICO forfeiture laws!

 "The Comprehensive Crime Control Act of 1984, which included the Comprehensive Forfeiture Act of 1984, amending RICO, was so hastily passed that not all of the Act's pages were included in the copy provided the President for his signature on October 12, 1985.  The exact contents of the Act were so uncertain that portions of the bill not enacted were included in the United States Code Annotated advance sheet of the law. . . . Because of the haphazard nature of the passage of the Comprehensive Crime Control Act of 1984, tracing its legislative history is difficult, if not impossible."  United States v. Rogers, 602 F.Supp. 1332, 1336 n. 1 (D.Colo. 1985).

Scorecard of published criminal cases reviewed by our staff this year:

Cases in the Federal Reporter:              This week:     32      Year to date:         32
Cases in the Federal Supplement:         This week:     17       Year to date:        17