Vol. 5, No. 48 As Published in the Advance Sheets on November 30, 1998 Copyright © 1998
Highlights of this Issue:
Leading Case
Miscellaneous Issues
U.S.S.G. and Sentencing Issues
United States v. Luciano, 158 F.3d 655 (2nd Cir. 1998) (Per Curiam)
Last year the Second Circuit authoritatively pronounced: "We have never held that a failure to pay fees or an attorney's motion to withdraw for his clients failure to pay, without more, gives rise to a conflict of interest and decline to do so here." U.S. v. O'Neil, 118 F.3d 65, 71 (2nd Cir. 1997). This year, the Second Circuit has taken its rigid distaste for reversals of convictions based on attorney/client conflicts of interest even one step further. In the instant case, the Court held that even when a party (at least when he is a defendant in a criminal proceeding) demonstrates an "actual conflict of interest" and a prejudicial "lapse in representation", those factors alone do not establish an irrebuttable presumption that the outcome of the criminal proceedings must be reversed.
One of the defendants in this case and his trial counsel, Lawrence M. Hermann, Esq., had what can only be described as an extremely contentious relationship. Their conflicts surfaced on the very first day of the defendant's narcotics trial, when Atty. Hermann advised the district court that he had an unspecified "ethical problem." The Second Circuit concluded that the ethical problem related to Hermann's failure to visit his client in jail before trial began. Normally one would assume that the failure to meet with one's client before trial raises significant questions about counsel's preparedness and the effectiveness of his representation. Here the Second Circuit dodged that bullet with a somewhat myopic view of the Sixth Amendment's right to effective assistance of counsel. It concluded that once the defendant allowed his attorney to proceed with the trial, he waived any and all complaints about his counsel's preparedness; and the district court was under no obligation to inquire into the nature of the "ethical problem." (Id., at 660)
Next, a few weeks after the defendant was convicted (but before he was sentenced), Atty. Hermann commenced a lawsuit against the defendant and his mother for unpaid legal fees; and he asked leave of the court to withdraw from his representation on the basis of his fee dispute. The district court (Judge Dorsey) denied the motion. Citing its decision in O'Neil, the Court again affirmed that the existence of a fee dispute "does not create the divergence of interests that defines an actual conflict." Further, it said that there were only two species of per se violations: (a) where the attorney is not licensed to practice law "because he failed to satisfy the substantive requirements of admission to the bar"; and (b) where the attorney was implicated in the defendant's crime. The Court stated that it was "reluctant to expand those categories except in the most egregious circumstances." (Id., at 661)
The pièce de résistance of the Court's decision was its discussion of an astonishingly intemperate letter sent by Hermann to Judge Dorsey shortly after his motion to withdraw was denied. The entire letter is set forth in the decision, but a few juicy excerpts will suffice to show why the Court concluded that Hermann had demonstrated "an actual conflict of interest." Hermann requested Judge Dorsey to reconsider his decision not to let Hermann withdraw from the case. After he had apparently been reminded by the Probation Office that he had a "professional responsibility" to respond to the defendant's pre-sentence report, Herman wrote to the judge: "I will not visit the defendant [in prison] and do not need the rise in blood pressure that would come from listening to his post-verdict lunatic allegations and from restraining myself, despite the age difference, from smacking him. Add to that the panic of my wife [who] had in her home the Mother of a man whose capacity for deceit, theft, drug rip-offs, guns, assaults of women . . . who has the morality of a protozoa, and who flunked a polygraph ice-cold in my presence on his involvement in a drug related homicide . . ." He concluded by appealing to his friendship with the judge to save his wife from her fear. (Mr. Hermann had served as an AUSA at a time when Judge Dorsey was the U.S. Attorney for the District of Connecticut.)
The Second Circuit was "troubled" by the letter (although not by Judge Dorsey's refusal to recuse himself). However, even though it conceded that the defendant had indeed established that there was an actual conflict of interest with his attorney, it concluded that there was no need to grant the defendant any relief for two reasons. First, the defendant had subsequently succeeded in obtaining new counsel who "argued strenuously the fundamental unfairness" of the district court's placing any reliance on the letter. The Court concluded that those factors "eliminated" any conflict of interest that otherwise existed under the rule established in U.S. v. Pascarella, 84 F.3d 61, 67 (2nd Cir. 1996)). Second, the defendant "was subject to a mandatory statutory minimum as a repeat offender." Thus, even if the case were remanded for resentencing the next court would have to impose the same sentence: "[T]he outcome of the proceeding in which the constitutionally deficient representation occurred could not have been any different." (Id., at 661-62).
So, in its zeal to limit the examples of per se violations of the Sixth Amendment, the Second Circuit seems to have done a pretty good job of expanding the tolerance levels of deliberately ineffective counsel.
Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647 (2nd Cir. 647) (Judge Jacobs)
This case is noted for its discussion of the increasingly frustrating task faced by anyone whose property has been seized by the Government. (It often seems as if there is some direct correlation between law enforcement's exploding need for funds and the procedural hurdles that must be overcome to get funds - particularly cash - back from the Government.)
In this case, the petitioner was a passenger in a car that was stopped by local police in New York. The car and the passenger were searched without a warrant and without consent. The police discovered $6,920 in the car, and that was immediately turned over to the DEA who had been called to the scene. No drugs were found in the car, and the DEA told the defendant, who claimed ownership of the cash, that he was free to go. When he asked for his money back, he was told that "he would be notified regarding the status of the seized currency, but he was never so notified, or served with notice of forfeiture." (Id., at 649).
Later, the defendant was arrested and convicted on what the Court called "possibly unrelated drug charges" in Maine. From prison, the petitioner filed a document pursuant to Fed.R.Crim P. 41(e) in the district court in Maine seeking the return of his cash. He alleged that the district court in Maine advised him to withdraw his petition and re-file his claim in New York. Little information could be obtained from Maine court because the Clerk's office advised the Second Circuit that, while it did have a docket sheet that referred to the petitioner's motion, the balance of the file had been "archived" and was unavailable - which the Second Circuit appropriately noted appeared to be "a non sequitur."
When the defendant refiled his claim in New York, the district court (Judge Scullin) construed the complaint as a Bivens action (even though Bivens actions can only be filed against individual federal agents and the petitioner's motion named only the DEA as a defendant). Then, the good judge dismissed the complaint because he ruled it was barred by the three-year statute of limitations applicable to Bivens actions.
On appeal, the Second Circuit held that Judge Scullin had erred on both issues and it vacated the district court's decision. The Court's decision is noted for a number of significant rulings. First, in response to the suggestion by the district court that the action was properly characterized as a Bivens action because it was a claim for damages, the Court firmly held that a claim seeking "the recovery of identified property and monies [is] an action that is equitable in nature and sharply distinguishable from an action at law for damages" (citing Crocker v. U.S., 125 F.3d 1475, 1477 (Fed.Cir. 1997)). The Court also noted that "Where, as here, the complaint seeks only equitable relief, sovereign immunity is waived by the Administrative Procedure Act, 5 U.S.C. § 702." (Id., at 652).
Second, citing Boero v. DEA, 111 F.3d 302 (2nd Cir. 1997), the Court held that where an action is equitable in nature "the appropriate statute of limitations period . . . is six years" - not the three year statute that is applicable to Bivens actions and actions brought under 42 U.S.C. § 1983. (Id., at 653).
Finally, commenting on the DEA's lack of notice to the petitioner, the Court referred to Weng v. U.S., 137 F.3d 709, 714 (2nd Cir. 1998), where the Court firmly held that "actual, personal notice to incarcerated claimants [must] be given in an undeniable and demonstrable way." (Id., at 654).
White v. Fauver, 19 F.Supp.2d 305 (D.N.J. 1998) (Judge Orlofsky)
In this case a class of inmates at Bayside State Correctional Facility filed a civil rights action, alleging that the guards had engaged in a pattern of physical abuse, threats and other unconstitutional acts in retaliation for the murder of a prison guard. The defendants moved to dismiss the complaint of a series of grounds, including the allegation that the plaintiffs had failed to exhaust their available administrative remedies as required by the PLRA, specifically 42 U.S.C. 1997e(a). That statute commands that "no action shall be brought with respect to prison conditions under [any federal law] by a prisoner . . . until such administrative remedies as are available are exhausted."
After an exhaustive review of the legislative history of the PLRA, Judge Orlofsky concluded that excessive prison force is not a prison condition of the type contemplated by Congress. He noted that while the PLRA does not define "prison conditions", and he declined to go along with the decisions of two courts, namely Hollimon v. DeTella, 6 F.Supp.2d 968 (N.D.Ill. 1998) and Morgan v. Arizona Department of Corrections, 976 F.Supp. 892 (D.Ariz. 1997), which applied the broad definition of 18 U.S.C. § 3626(g)(2). That statute defines a "civil action with respect to prison conditions" as "any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison . . . "
Looking at the legislative history of the PLRA, Judge Orlofsky concluded that it was aimed at frivolous suits by inmates, but was not intended to reach a claim involving the systematic use of excessive physical force. "Simply put, assault is not an effect." Rather it is an intentional act. Thus the inmates were not required to exhaust their administrative remedies on a series of their claims including the intentional physical attacks with accompanying threats by guards to inmates.
On another issue, the court held that "available administrative remedy" is one through which the particular relief can be obtained. Accordingly, prisoners seeking compensatory and punitive relief need not exhaust administrative remedies which do not provide those types of relief.
United States v. Barnes, 158 F.3d 662 (2nd Cir. 1998) (Judge Korman)
The defendant in this case was convicted, under a general verdict, of conspiracy to possess with intent to distribute four different illegal drugs - cocaine, crack, heroin, and marijuana. Each of those drugs requires a different sentence; and, under the facts of this case, the ranges were from 10 to 30 years. At sentencing, the district court (Judge Nevas) imposed sentence based on the crack-cocaine charge, and imposed a mandatory minimum sentence of 20 years. On appeal, the principal issue raised was whether the court erred by not sentencing him based upon possession of the drug carrying the lowest mandatory minimum penalty. In support of that argument the defendant cited the holding in U.S. v. Orozco-Prada, 732 F.3d (2nd Cir. 1984), which held that when the jury returns a general verdict to a charge that a conspiratorial agreement covered multiple drugs, the defendant must be sentenced as if the conspiracy distributed only the drugs carrying the lowest penalty.
The Government argued that Orozco-Prada had been undermined - if not implicitly overruled - by subsequent cases, including Edwards v. U.S., 140 L.Ed.2d 703 (1998). In that case the Supreme Court held that it is for the judge - not the jury - to determine the type of drugs involved in the offense-related activities that may be used for sentencing purposes.
Essentially, the Court pointed out that there is a significant sentencing distinction between the Sentencing Guidelines and the statutory mandatory minimum laws; and it held that "a mandatory minimum sentence may not be imposed for conduct for which a defendant was either not convicted or affirmatively acquitted. . . [Thus], [u]nlike the Guidelines, which require a sentencing court to consider similar conduct in setting a sentence, the statutory mandatory minimum sentences of 21 U.S.C. § 841(b)(1) apply only to the conduct which actually resulted in a conviction under that statute." (Id., at 669).
Under that rationale, the Court concluded that its ruling in Orozco-Prada "provides a rational means of insuring that a statutorily mandated sentence is imposed only where it is clear that the jury found that the defendant committed or conspired to commit the acts that warrant the sentence." (Id., at 672). The Court did reject the defendant's argument that he should have been sentenced for marijuana, because the evidence presented pertaining to marijuana "was not only legally insufficient, it was negligible." Conversely, it found that the district court had erred by sentencing the defendant to 20 years based on his finding that crack/cocaine governed; and it gave the Government the option of either having the defendant resentenced to a ten year mandatory minimum or retrying the defendant (and seeking a special verdict if it chooses not to amend the indictment).
Proposed Sentencing Guideline Amendments
For the record we note that the Sentencing Commission recently published a number of proposals for amending several provisions of the Guidelines, including some key provisions on theft, fraud and tax crimes. Those amendments can be viewed at our site on the Internet; but before rushing off to study them we remind you that all seven voting seats on the Commission are now vacant; and, by law, no amendments can even be presented to Congress until at least four new commissioners have been appointed and confirmed. Our contacts at the Sentencing Commission tell us that the President has not yet even nominated anyone to fill the vacancies; and after that Congress must approve all the nominations. Due to the impeachment proceedings, we have been told not to expect any action on that front before the Spring, at the earliest. Thus, the Sentencing Commission, the cornerstone of our criminal justice system, appears to be in limbo for now. Maybe the Guidelines have become so cumbersome and so political that mere mortals are afraid to get involved.
QUOTE OF THE WEEK - Some observations on the elastic, sprawling, pervasive offense of conspiracy.
"This case [the Krulewitch case] illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the 'tendency of a principle to expand itself to the limit of its logic.' The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in addition thereto, suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice. . . . [E]ven when appropriately invoked, the looseness and pliability of the [conspiracy] doctrine present inherent dangers which should be placed in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case. . . . [A court should not strain] to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction." (Id., at 446-457). Krulewitch v. United States, 336 U.S. 440, 457 (1949) (Jackson, J., concurring).
Scorecard of published criminal cases reviewed by our staff this year:
Cases in the Federal Reporter:
This week: 35 Year to
date: 2054
Cases in the Federal Supplement:
This week: 21 Year to
date: 1145
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