A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 10              Covering Cases Published in the Advance Sheets through March 5, 2001

Highlights of this Issue:

Supreme Court Case:

• In Ferguson the Supreme Court reversed a decision from the Fourth Circuit and held that hospital workers cannot constitutionally test pregnant women for drug use and then give the results to the police without the patients informed consent or a valid warrant.
  

Apprendi Watch:

• In Harris the Fourth Circuit held that, based on the language, structure, context, and history of 18USC § 924(c)(1)(A), an enhancement for "brandishing" a gun is a sentencing factor, not an element of the offense, and thus is not subject to the Apprendi-rule.
  
  
• In Brough the Seventh Circuit held that the Apprendi-rule is applicable even where the defendant elects to a bench trial because Apprendi affects the burden of persuasion as well as the identity of the decisionmaker.
  

U.S.S.G. and Sentencing Issues:

• The Fortier case from the Tenth Circuit deals with the resentencing of one of the lesser-known defendants implicated in the Oklahoma City bombing case. Here, after the defendants his initial sentence was reversed on appeal, the district court reimposed the same sentence, based in part on various upward departures recommended by counsel for some of the victims. On appeal, the Tenth Circuit affirmed the new sentence, finding no judicial vindictiveness.
  
  
• In Brogan the Seventh Circuit reversed the imposition of an enhancement for abuse of position of trust imposed on an assistant treasurer of a corporation who diverted some $ 8 million from his employer because he lacked the requisite level of discretion for the enhancement.
  
  
• In Sicher the Third Circuit upheld a special condition of supervised release that prohibited a defendant from traveling to two counties where her mother and her two children lived, without the consent of the probation department.

Dont forget to visit the Apprendi  Watch section of the Members portion of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section contains summaries of more than 165 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 46 cases that the Supreme Court has vacated to date based on Apprendi.

Ferguson v. Charleston, No. 99-936 (U.S. Sup. Ct. 3/21/2001) (Justice Stevens)

In 1999, a divided panel from the Fourth Circuit approved a controversial drug testing program of pregnant women in South Carolina, which required the disclosure of drug abuse to law enforcement officials. (See, Ferguson v. City of Charleston, 186 F.3d 469 (4th Cir. 1999) (P&J, 10/4/99). The tests led to arrests and jail time for pregnant women and new mothers who used cocaine. In fact, some of the women who tested positive for cocaine during labor were taken to jail in handcuffs or leg shackles shortly after giving birth. Ten of the women who were arrested under that program brought suit claiming that the program violated various constitutional and statutory rights. The majority disagreed, holding that the Government had "special interests" (namely the protection of the lives of the children in utero) that justified the intrusion into the Fourth Amendment rights of the women.

In her dissent, Judge Blake vehemently argued that the "special needs" exemption does not apply "where the governmental intrusion is intended to be used for law enforcement purposes." After noting that the diagnostic testing of the pregnant women was a cooperative program between the hospital and the police department, she concluded that the program in question "was intended from its inception to result in the arrest and possible prosecution of pregnant women who were patients at the state hospital" - and thus it violated the Fourth Amendment.

The Supreme Court, by a vote of 6 to 3, ruled that hospital workers cannot constitutionally test pregnant women for drug use and then give the results to the police without the patients informed consent or a valid warrant. Essentially, the majority held that the hospitals tests seeking evidence of a patients criminal conduct were unreasonable searches that violated the Fourth Amendment; and the case was remanded back to the lower courts to determine whether any of the ten plaintiffs had actually consented to the tests that were given.

Writing for the majority, Justice Stevens noted that the "special needs" exception to the Fourth Amendment has been applied to date in only a handful of cases to justify the drug testing for health and safety purposes, in the cases of students, customs agents and railroad workers involved in train accidents. However, it does not apply to a program that is so directly connected to law enforcement - especially where, as here, "[t]he central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment."

He then continued that "[w]hile the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off drugs," the "stark and unique fact" of this case was that the cooperative program between the hospital and the police "was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and that could be admissible in subsequent criminal prosecutions."

And that was the constitutional problem, Justice Stevens wrote: because law enforcement "always serves some broader social purpose or objective, . . . virtually any nonconsensual suspicionless search could be immunized under the special needs doctrine by defining the search solely in terms of its ultimate, rather than immediate, purpose. Such an approach is inconsistent with the Fourth Amendment."

Justice Scalia dissented, in a decision that was joined by Justices Rehnquist and Thomas. Scalia concluded that the program in question served a legitimate medical purpose and that police had only used the evidence supplied by the hospital "for a benign purpose, as is shown by the fact that only 30 of 253 women testing positive for cocaine were ever arrested, and only two of those prosecuted."

He also expressed concern about the impact of the majoritys decision might have on the public employees who participated in the program, stating: "It would not be unreasonable to conclude that todays judgment, authorizing the assessment of damages against the county solicitor and individual doctors and nurses who participated in the program, proves once again that no good deed goes unpunished."

United States v. Fortier, No. 99-6381 (10th Cir. 3/16/2001) (Judge Lucero)

This case involves the re-sentencing of one of the lesser-known defendants who was prosecuted for his involvement with Timothy McVeigh and Terry Nichols in the bombing of the Murrah Federal Building in Oklahoma City in 1995. It is noted principally for its discussion of a significant limitation on the presumption of vindictiveness that was established in North Carolina v. Pearce, 395 U.S. 711 (1969), namely that Pearce does not apply unless the judge imposes a harsher sentence following a successful appeal.

The defendant in this case, Michael Fortier, was not actually a participant in the Oklahoma City bombing. Apparently, he refused to take part in that bombing, and he was never prosecuted as a conspirator. He was, however, prosecuted largely because he had learned about McVeighs plans to bomb the Federal building, but he did nothing to reveal those plans to law enforcement authorities. Fortier also sold some guns that McVeigh had stolen from a gun collector, and he gave McVeigh $2,000 in proceeds from that sale. (The Government stipulated that it could not trace any of those proceeds to specific expenditures made in furtherance of the bombing.)

Ultimately, Fortier pled guilty to four crimes: transportation of stolen firearms; conspiracy to transport stolen firearms; making false statements to the FBI; and misprision of a felony (a Federal crime under 18 U.S.C. § 4 for failing to make known to authorities that someone is about to commit a crime).  Fortier also testified as the Governments principal witness against McVeigh and Nichols at their respective trials. The initial base offense level for Fortiers crimes was 14, which calls for a sentencing range of 15-21 months for a first time offender. However, at his original sentencing, Fortier was sentenced to 144 months in prison, in large part through a cross reference to U.S.S.G. § 2K2.1(c)(1), which states that if a defendant used or possessed a firearm in connection with another crime that resulted in death, the court must apply the most analogous guideline from U.S.S.G. Chapter 2A.1. The district court applied § 2A1.1, the first-degree murder guideline.

On appeal, the Tenth Circuit held that the district court had erred in applying the first-degree murder, concluding that the involuntary manslaughter guideline, "although not a perfect fit," was most analogous to Fortiers situation. (U.S. v. Fortier, 180 F.3d 1217, 1230 (10th Cir. 1999) (Fortier I). Then, in remanding the case for resentencing, the Tenth Circuit stated: "Our decision today . . . requires the [district] court to begin with a significantly lower [offense level] number. We expect our holding to dramatically affect Mr. Fortiers total offense level." (Fortier I, id., at 1230) (Emphasis added.).

Undeterred by that message, the district court (Judge Van Bebber) was not about to effect any "dramatic" change in the sentence. Realizing that he was on the side of God and the angels in this case, and sensing the nations undying rage and anger at the horrors of the bombing, Judge Van Bebber promptly reimposed the same 144-month sentence - although this time he was more careful in choosing the route to achieve that sentence.

Prior to the resentencing hearing, Judge Van Beber advised defense counsel that he did not "anticipate" the presentation of any new evidence or any allocution by the victims of the bombing at the resentencing hearing. Then, at the resentencing Judge Van Beber reversed himself and permitted counsel for two of the victims of the bombing to file an amicus brief, participate in the hearing, and argue for the imposition of a substantial upward departure. Amicus counsel urged the court to impose the same original sentence - but not a greater one - to avoid "the appearance of vindictiveness that might arise if the court ordered a longer sentence."

Judge Van Beber did exactly as the victims requested. He reimposed the same 144-month sentence, through the use of a 13-level upward departure, based on several Guideline sections: § 5K2.1 (multiple deaths); § 5K2.2 (significant physical injury); § 5K2.3 (extreme psychological injury); § 5K2.5 (property damage); § 5K2.7 (disruption of governmental functions); and § 5K2.14 (endangerment of public health or safety).

Fortier again appealed his new sentence, arguing that the resentencing process was plagued "with subtle but discernable forms of vindictiveness." For example, he noted that, following his earlier successful appeal, the district court used an upward departure that was not raised at the initial sentencing, and one which was urged by the victims of the bombing, as a means of "side-stepping" the Tenth Circuits decision in Fortier I.

Since Fortier failed to raise the vindictiveness claim at the resentencing hearing, the majority held that it would only be reviewed for plain error; and, under that standard, it found neither actual vindictiveness nor any presumption of vindictiveness. It also held that "[t]he fact that the district court departed upward on resentencing for the first time does not, by itself, warrant reversal."

On the issue of vindictiveness, the majority first acknowledged that, under Pearce, judges are "prohibited from vindictively imposing harsher sentences following a successful appeal." However, it also concluded that "the Pearce presumption is inapplicable when a defendant receives the same sentence on remand. . . . Rather, in such a case, the defendant must present evidence of actual vindictiveness to demonstrate a violation of due process."

Turning to Fortiers claims of "actual vindictiveness," the majority also concluded that neither the "aggregate of the . . . reasons" advanced by Fortier, nor "any subpart," warranted a conclusion that the trial court was vindictive.

One of Fortiers arguments deserves some discussion. He contended that the participation of victims counsel was improper because the Government was specifically precluded, under the terms of his plea agreement, from arguing for an upward departure. Thus, "the only way the district court could receive any briefing or oral argument on the issue of upward departures was from a third party," and Judge Van Bebber had first advised defense counsel that he did not "anticipate" any participation from any third parties at the resentencing.

In rejecting that claim, the majority stated: "We have not found, and neither party has cited, any explicit authority either authorizing or prohibiting the kind of victim participation allowed by the district court." It noted that while Fed.R.Crim.P. 32(c)(3)(E) permits victims to "present any information in relation to the sentence," that Rule "by its terms only applies to sentencing for a crime of violence or sexual abuse, and the crimes to which Fortier pleaded guilty are neither violent nor sexual in nature."

It then wrote: "In the absence of any authority permitting the participation of victims' counsel, we harbor concerns about the propriety of the district court's rulings. Allowing third parties to argue for harsher sentences when the government is not permitted to do so by the terms of a plea agreement presents an opportunity for the government to achieve indirectly what it is prohibited from doing directly." It also noted that allowing victims counsel to participate at the resentencing not only "upset" Fortiers expectations, it also "undermined the benefit of his bargain." Nevertheless, the majority concluded: "Despite our misgivings, we nevertheless conclude that any error does not warrant reversal of Fortier's sentence."

Judge Porfilio dissented. He argued that when considering enhancements of the type used by the district court to justify its upward departure, the courts have "uniformly required" that the harm done to a victim be reasonably foreseeable in the commission of the crime of conviction. Here, he argued that "[t]here is simply no evidentiary basis within the record of this case for this courts conclusion [that] the harm suffered by the Murrah Building bombing victims was forseeable in the commission of the crimes for which Mr. Fortier stands convicted. Without a factual nexus between crime and harm, . . . there is no factual ground upon which foreseeability can be based. . . . [Thus], I believe those sentences are contrary to law."

United States v. Sicher, 239 F.3d 289 (3rd Cir. 2000) (Judge Barry)

This is one of those cases that shows the great and abiding concern of a benevolent government for the care and well-being of its huge numbers of ex-felons. The defendant in this case was convicted of drug trafficking; and she was initially sentenced to six years in prison, to be followed by ten years supervised release. In sentencing her, the district court imposed a special travel restriction that prohibited the defendant from entering the Allentown, Pennsylvania area (which was specifically defined to include two counties), without the permission of her probation officer. Although the defendants mother lived in Allentown, together with the defendants two children, the district court (Judge Van Antwerpen) concluded that if the defendant was allowed to return to the location and associates that shaped her youth, "she would be extremely likely to return to a life of crime." (Id., at 291).

The defendant did not object to that condition at the time it was imposed; nor later, when it was reimposed following a two-year stint in prison for violating some of the other terms of her supervised release. Finally, while still imprisoned, she filed a pro se motion seeking to amend the travel restriction, so she could return to her mothers house in Allentown upon her release from prison to take care of her mother and her own two children. The district court denied the motion; and this appeal ensued.

The defendant argued that the special condition of supervised release was invalid because (a) it was not reasonably related to the nature and circumstances of her crime; (b) it involved a greater deprivation of liberty than was reasonably necessary; and (c) it was inconsistent with the policy statements of the Sentencing Commission. She contended that the special condition effectively "banished" her from the two counties, denied her the ability to care for her mother, and was forcing her either to abandon her children or relocate them.

In its infinite wisdom, the Third Circuit rejected all those arguments. Although the defendant had cited a number of cases in which courts had struck down penalties of "banishment," the Court distinguished those cases on the grounds that they involved "unconditional banishment." (Id., at 292). Here, the Court noted that the banishment at issue was not "absolute . . . because [the defendant] can enter either county with the permission of her probation officer." While the Court acknowledged that "the territorial limitation will have an impact on Sichers family relationships," it held that those "minor impositions on her liberty are no greater than are necessary to promote her rehabilitation by keeping her away from negative, if not wholly disastrous, influences." (Id.)

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