Vol. 5, No.
23 As Published in the Advance Sheets on June 8,
1998 Copyright © 1998
Highlights of this Issue:
Leading Cases
Gun Law Issues
Constitutional Issues
U.S.S.G. and Sentencing Issues
United States v.
Bajakajian, No. 96-1487 (U.S. Sup. Ct. June 22, 1998) (Justice Breyer)
This is an important and far-reaching forfeiture case, the import of which can best be assessed by Justice Kennedy's dissent in which he states: "For the first time in its history, the Court strikes down a fine as excessive under the Eighth Amendment. The decision is disturbing both for its specific holding and for the broader upheaval it foreshadows."
The defendant in this case was preparing to board an international flight carrying $357,144 in currency, which he had failed to report as required by 31 U.S.C. § 5316(a)(1)(A). The Government sought to forfeit the entire sum under 18 U.S.C. § 982(a)(1), which provides that any person convicted of willfully violating § 5316 shall forfeit "any property involved in such an offense." The defendant pled guilty to the failure to report and elected to have a bench trial on the forfeiture. The district court (Judge Davies) found that the violation was unrelated to any other illegal activities and that the entire sum was subject to forfeiture because it was involved in the offense. However, he also concluded that full forfeiture would be grossly disproportionate to the offense in question and would therefore violate the Excessive Fines Clause of the Eighth Amendment. Thus, he ordered forfeiture of $15,000; and the Ninth Circuit affirmed in a decision reported at 84 F.3d 334 (9th Cir. 1996).
A divided Supreme Court agreed. It held that the forfeiture of the entire $347,144 would be grossly disproportionate to the gravity of the offense which was solely a reporting offense. It held that the forfeiture in question was clearly punitive in nature; and, after noting that the Court had not previously articulated a standard for determining whether a punitive forfeiture is constitutionally excessive, it firmly held that "a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense."
The Court also rejected the Government's argument that such forfeitures serve important remedial purposes - by deterring illicit movements of cash and giving the Government valuable information to investigate and detect criminal activities associated with that cash - because the asserted loss of information would not be remedied by confiscation of the defendant's $357,144. After a long period of virtually unrestrained expansion of the forfeiture laws and many, many instances of Government seizures of property that have been grossly disproportionate to the offense charged, this decision could apply sharp brakes to the Government's ability to seize everything in sight to replenish its coffers. (For more on that topic, see the Quote of the Week below.)
United
States v. Askari, 140 F.3d 536 (3rd Cir. 1998) (En Banc) (Judge Scrica)
This is another of those limited-application cases that deals with the semantics of "violent crimes"; but it is really a decision that represents much more of a philosophical turn-about than a fact-specific ruling. The defendant was charged with bank robbery, but he was initially found not competent to stand trial due to a severe mental illness. He was sent to a BOP facility for psychiatric care and treatment and it was only after he was deemed cured that he went to trial. After conviction, the defendant asked the court for a downward departure based on diminished mental capacity pursuant to U.S.S.G. § 5K2.13, which permits a downward departure based on diminished capacity where the crime is non-violent. He argued that his crime was non-violent because when he robbed his bank, he did not use force or make any specific verbal threats of harm; he was not seen carrying a gun; and when he was arrested two blocks away from the scene of the crime he was not carrying a gun. He also cited his history of psychiatric illness and his diagnosis as a paranoid schizophrenic. The district court (Judge Waldman) denied the departure on the grounds that the offense was not non-violent. On appeal, the Third Circuit reversed, abrogating a long line of cases starting with U.S. v. Rosen, 896 F.2d 789 (3rd Cir. 1990). The Court concluded that the defendant in the instant case did not commit a violent offense and that he was entitled to a downward departure for diminished capacity under § 5K2.13.
In large part, the majority simply adopted the dissenting opinion of Judge Easterbrook in U.S. v. Poff, 926 F.2d 588 (7th Cir. 1991), in which he concluded that had the Sentencing Commission wished to define "non-violent offense" to include the crime of robbery it could have easily done so. In its 30-plus page decision, an en banc Third Circuit examines in minute detail the question of when and whether a crime is "non-violent" for purposes of U.S.S.G. § 5K2.13. The term "non-violent offense" is not defined in either § 5K2.13 or in the commentary to that section; but the term "crime of violence" is defined in the "career offender" provisions of Chapter Four of the Guidelines (§ 4B1.2(a) and Application Note 1 to § 4B1.1); and, as this Court noted, if "non-violent offense" for purposes of § 5K2.13 is defined by reference to the definitions contained in Chapter Four, then bank robbery would never qualify as a non-violent offense - because the definitions in Chapter Four specifically include "robbery" as a crime of violence.
To date, five Circuits (the Sixth, Seventh, Eighth, Ninth and Eleventh) have resolved the issue by concluding that the definitions of "crime of violence" in Chapter Four and "non-violent offense" as used in § 5K2.13 have the same meaning; while three Circuits (the Fourth, the D.C. Circuit and now the Third) have concluded that a district court's discretion to depart downward under § 5K2.13 should not be restricted by the definitions in § 4B1.2. We find it somewhat disturbing that there are still such widely divergent views over semantical nuances of critical Guidelines' terms, when either the Supreme Court or the Sentencing Commission could easily resolve the issue and give defendants the degree of certainty and uniformity of sentencing promised in the Guidelines.
United States v. Mills,
140 F.3d 630 (6th Cir. 1998) (Judge Daughtrey)
We have often noted that one of the favorite weapons in the growing arsenal of Federal criminal statutes is 18 U.S.C. § 666, which makes a Federal crime of theft and bribery concerning programs receiving Federal funds. Anyone familiar with today's use of § 666 knows that the one of the prime goals of doling out massive Federal funds under myriad Federal programs to private and local government organizations is to acquire jurisdiction over theft and bribery crimes that are otherwise reserved to the States under the Tenth Amendment.
The instant case reflects some of the growing judicial concern over the ever-expanding reach of § 666. In this case, the Sixth Circuit affirmed the dismissal of six counts in an indictment that charged, inter alia, bribery in connection with the sale of deputy sheriffs' jobs in Shelby County, TN. The Court noted that § 666 contains three separate valuation requirements. "First, the statute applies only if the local government or agency receives at least $10,000 in federal assistance in any one year. 18 U.S.C. § 666(b). Second, in order to be subject to the proscriptions of subsection (a)(1)(B) of the statute, a defendant must solicit, demand, accept, or agree to accept ‘anything of value' from another person. Finally, the acceptance of ‘anything of value' must itself be shown to be connected with a transaction ‘involving anything of value of $5,000 or more. 18 U.S.C. § 666(a)(1)(B). Consequently, in its drafting of the statute, Congress made clear that, despite its abhorrence for acts of bribery, not every such misdeed should be subject to federal oversight and punishment." (Id., at 632).
The precise issue in this case was still another exception to § 666 which provides that the statute does not apply to "bona fide salary, wages, fees or other compensation paid." The defendants argued that since the bribes received involved less than $4,000 per person, this latter exception precluded their prosecution in Federal courts. The Government argued that the § 666(c) exception did not apply to all three valuation elements of a § 666 offense; but the Court disagreed. It politely reminded the Government that "In its wisdom . . . Congress has apparently determined that all . . . instances of bribery do not merit the attention of the federal courts." (Id., at 634).
United States v.
Delgado, 994 F.Supp. 143 (E.D.N.Y. 1998) (Judge Weinstein)
Reading this decision by Judge Weinstein is like looking at a snapshot of many of his outspoken critiques over the years of the Guidelines' inflexible treatment of drug offenders. By force of will, he has again carved out a persuasive and logical exegesis on why sentencing by the numbers makes no sense in many cases, despite the Guideline's much vaunted promise of an "effective and fair sentencing system."
In this case, a 28-year old "diminutive" and "fragile" widowed mother from Columbia was "persuaded" to act as a mule by transporting drugs to America, where she was caught. Her initial base offense level of 28 (which calls for a sentence of 78 to 97 months in prison) was quickly reduced to level 18 by Judge Weinstein based on reductions for acceptance of responsibility, minimal role, safety-valve and a stipulation of uncontested deportation. [On that latter issue, Judge Weinstein observed that the "practice in this district, unlike other districts, is to treat a deportation stipulation as an automatic reduction rather than a discretionary departure." (Id., at 144)]. Still not satisfied with the resulting offense level of 18 and its required prison term of 27 to 33 months, Judge Weinstein granted a downward departure based on a "confluence of circumstances" and imposed a sentence of 18 months in prison.
No stranger to the appeals process, and accustomed to the many reversals he has received from the Second Circuit over the years, Judge Weinstein has learned how to make his decisions bullet proof and how to soften the impact of his own incendiary (in the mind of the Second Circuit) criticisms of the Guidelines. Thus, he has learned the importance of quoting from other scholars. For example, in a statement reminiscent of the report last week that the U.S. is fostering the use in Columbia of a new herbicide that the manufacturer warns will cause dramatic harm to that country's water supply, he quoted from the Winter 1995 edition of Criminal Justice: "[W]e should face squarely the likelihood that our drug- war strategies, adopted by many nations, have so far resulted only in the re-victimization of many people already suffering under grinding poverty and corrupt political regimes." (Id., at 145).
In the end, Judge Weinstein pointed to the "aberrational nature" of the defendant's conduct, her susceptibility to abuse in prison, and her "exceptionally difficult life" as additional grounds for departure. Perhaps the most significant aspect of his discourse was on the subject of coercion and duress, a factor which is permitted under U.S.S.G. § 5K2.12. After recounting how the defendant had borrowed money at high interest rates and then was virtually forced to transport drugs as the means of paying off the debt, Judge Weinstein concluded that duress furnished an additional grounds for departure in this case; and he emphasized that the "court is not confined to the classical definition of duress, but should properly consider the individual before the court and her particular vulnerability." (Id., at 145).
QUOTE OF THE WEEK - Some thoughts
on the by-products of the Government's forfeiture policies.
"As the ‘drug war' has escalated, the number of forfeiture cases in the United States has burgeoned. Taking away the profits of drug crimes through forfeiture is a powerful weapon to cripple drug-trading enterprises. Unfairly wielded it can place commercial enterprises at a terrible disadvantage. It skirts the edge of due process. . . . Even when a claimant is successful in fending off ultimate forfeiture, the loss of the use of the seized funds for months or years while the case drags on can cripple a business. . . . The substantive law, procedures, and allocations of burdens of proof in forfeiture cases differ markedly from other civil proceedings, and give the United States prosecutor a substantial edge." Judge Jack B. Weinstein in U.S. v. All Funds on Deposit, 801 F.Supp. 984, 989 (E.D.N.Y. 1992).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal Reporter:
This week: 38 Year to
date: 843
Cases in the Federal Supplement:
This week: 21 Year to
date: 503