A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 12              Covering Cases Published in the Advance Sheets through March 19, 2001

Highlights of this Issue:

The Greased Slopes of Sentencing Factor Manupulation:

• Two cases this week are graphic studies of how law enforcement agents and prosecutors can use the sentencing laws to ratchet sentences up to levels that even the judges agree are "illogical," "exaggerated," and "draconian." In Lora, District Judge Gertner addressed a request for downward departures at sentencing under Application Note 15 to U.S.S.G. § 2D1.1, which authorizes departures in certain reverse sting operations. Although she ultimately denied the request, her analysis of the scope of Note 15 departures is one of the best we have seen.
  
  
• In Finley, a divided panel from the Second Circuit held that a defendant cannot be sentenced to two mandatory, consecutive prison terms under 18 USC § 924(c)(1) when he possesses a single firearm during a single drug transaction that results in separate drug possession and drug distribution offenses.
  

Apprendi Watch:

• In Noble the Seventh Circuit departed from its established norm and reversed a sentence based on Apprendi, holding that the limited physical evidence and minimal corroborating testimony available in this case warranted reversal under the "seriously affecting fairness" standard.
  

The Marital Testimonial Privilege:

• The James case from the District of Maryland is noted for its review of the current status of the spousal privilege and its holding that the admission of a non-testifying wifes "excited utterances" did not violate the wifes spousal privilege or the husbands Confrontation Clause rights.

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

• The Christopher case from the Eleventh Circuit and the Lopez-Pastrana case from the Ninth Circuit are noted for their conflicting conclusions about the impact that a prior conviction for shoplifting should have on the defendants instant sentencing.

Dont forget to visit the Apprendi  Watch section 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 175 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 47 cases that the Supreme Court has vacated to date based on Apprendi.

United States v. Finley, No. 00-1090 (2nd Cir. 4/05/2001) (Judge Feinberg)

This case presents another striking example of sentencing factor manipulation - this time involving the prosecutions use of the mandatory minimum gun statutes as the means of achieving sentences that are warped beyond all reason. Here, an undercover police officer made a $20 "confirmatory" drug purchase from the defendant through a kitchen window in a home. Three minutes later, a SWAT team forcibly raided the house and arrested the defendant. They found the marked $20 buy money, 19 additional small bags of cocaine that contained a total of 3.5 grams of cocaine, and an unloaded sawed-off shotgun hidden under a pile of clothes in the kitchen.

The defendant was charged with a six count indictment that included two separate drug charges (covering the initial "confirmatory" buy and the additional 19 bags of cocaine) and two separate charges of possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

After a jury trial, the defendant was convicted on all counts - and he was sentenced to 477 months in prison (40 years) - principally because the district court (Judge Siragusa) imposed a mandatory and consecutive five year sentence for the first gun charge and then a mandatory and consecutive 25-year prison term based on the defendants "second or consecutive" gun conviction. (It is worth noting that the Guideline offense level for up to 25 grams of cocaine - seven times what was involved in this case - is level 12, which calls for a prison sentence of 10 to 16 months, assuming no other adjustments, no gun charges, and assuming that the defendant was a first time offender.)

The defendant appealed, arguing that the district court had erred in finding two separate violations of § 924(c)(1), which led to the imposition of the second consecutive mandatory minimum sentence of 25 years. The question addressed by the Second Circuit was "whether a defendant may be sentenced to two mandatory, consecutive prison terms under 18 USC § 924(c)(1) when he possesses a single firearm during a single drug transaction that results in separate drug possession and drug distribution offenses."

In a case of first impression for the Court, the majority reversed the second § 924(c)(1) gun conviction (over the dissent of Judge Winter), thus reducing the 477 month sentence by 300 months to a more realistic (but still onerous) sentence of 177 months (15 years).  Stressing that the predicate offenses in this case "were simultaneous or nearly so," the majority noted that "[i]f the undercover agent had purchased all of the bags in the defendants possession only one § 924(c)(1) sentence of five years could be imposed. But if the agent buys less than all 10 (sic!) bags, the one mandatory extra sentence grows to two, and the mandatory five years grows to 30.

"We very much doubt that Congress intended the statute to command such an illogical and exaggerated result. In our view, it was not Congresss intention in using the words, a second or subsequent conviction to secure the imposition of a second, mandatory 25-year sentence where the two criminal transactions, as in this case, are so inseparably intertwined."

The majority acknowledged, however, that "[e]ven a brief review of the case law in this area shows that reasoned application of § 924(c)(1) can be extremely difficult. The wildly divergent interpretations of the proper application of § 924(c)(1) can be seen in . . . numerous opinions and cases . . . . There is a widely shared view that the statutes text is ambiguous. "

The Government (and Judge Winter) disagreed. The Government boldly argued that since there were two separate drug crimes, "it can require the court to impose two mandatory consecutive sentences totaling 30 years, over and above the drug sentences."

Judge Winter argued that the language of the statute was "unambiguous" and mandated the second, 25-year consecutive sentence. While he acknowledged that such a result was "troubling," and that the 477-month sentence was "draconian," he also concluded that "this is not the forum in which to challenge Congresss provision of harsh penalties for serious crimes." Finally, he concluded that "[b]ecause there is nothing in the statute or caselaw suggesting that the predicate crimes be separated by any particular amount of time, there is no reason to invoke the rule of lenity."

United States v. Noble, No. 99-2899 (7th Cir. 4/05/2001) (Judge Bauer)

To date, the Seventh Circuit has published more decisions denying appellate relief based on Apprendi v. New Jersey, 530 U.S. 466 (2000)  than any other Circuit (excluding, of course, the Fourth Circuit which, to date, has written an obscene total of 97 unpublished decisions based on Apprendi).  In the instant case, the Seventh Circuit actually reversed a sentence based on Apprendi - an event so rare that is probably nothing more than a blip on the Seventh Circuits Apprendi screen. Nevertheless, the case is noted as a possible aid to those seeking the impossible dream of Apprendi relief in a very difficult Circuit.

The defendant in this case was convicted of directing and operating a multi-state drug trafficking enterprise in violation of 21 U.S.C. §§ 841(a) and 846. At sentencing, the district court (Judge Crabb) determined that he was responsible for the distribution of the statutory equivalent of 1,390 kilograms of marijuana. That total made the defendant eligible for an enhanced sentence under the provisions of 21 U.S.C. § 841(b)(1)(A)(vii) - and he was sentenced to 360 months in prison.

The defendant appealed his sentence on a number of grounds, most of which were unrelated to his Apprendi claim. However, one of those unrelated claims is noteworthy, since it charged that the district court had simply miscalculated the drug quantity by double counting certain quantities. The Seventh Circuit agreed that the district court had committed "clear error" by double counting some 259 kilos of marijuana - nearly 25% of the total amount of drugs the district court had attributed to the defendant. While that "mistake" did not factor into the decision, it represents one of the largest acknowledged sentencing miscalculations by a judge that we have seen.

The defendants principal claim was that he was sentenced above the statutory maximum sentence of 20 years specified in 21 U.S.C. § 841(b)(1)(C), based upon a judicial - rather than a jury - determination of the quantity of drugs involved. Here, the drug quantity was neither charged in the indictment nor submitted to the jury - and even the Seventh Circuit has acknowledged that Apprendi requires a jury determination of those factors that increase or enhance a defendants sentence beyond the 20-year statutory maximum set forth in 21 U.S.C. § 841(b)(1)(C).

Like many defendants before him, the defendant did not raise his Apprendi issue until this direct appeal; and, thus, the Courts review was limited to a finding of plain error. Under the now familiar plain error review standard established by the Supreme Court in U.S. v. Olano, 507 U.S. 725 (1993), a finding of plain error requires that there must be (1) an error, (2) that is plain, and (3) that affects substantial rights.

Like many cases before this one, the Court agreed that the first three criteria were "clearly" satisfied. There was error because Apprendi applies to the enhanced penalty provisions of 21 U.S.C. §§ 841(b)(1)(A) and (B). The error was plain because, even though Apprendi was not the law at the time of the trial in this case, "for an error to be plain, it is sufficient for it to be clearly contradictory to the law at the time of appeal." And the error substantially prejudiced the defendants rights "by extending his sentence 10 years in excess of the statutory maximum."

However, as we have also learned from Olano, even if all three of those criteria are met, reversal is still discretionary and will only be warranted where the plain error "seriously affects the fairness, integrity or public reputation of judicial proceedings." (Olano, id., at 734). Normally, to prove that an error affects "the fairness, integrity or public reputation of judicial proceedings," one must move mountains. For, example, citing a number of its own Apprendi decisions, the Court noted that "[w]e have refused to find such concerns implicated when evidence supporting a sentence above the statutory maximum is overwhelming."

Then, in an analysis that we feel gives little guidance for the future, the Court held that the instant case was one of the rare examples of a plain error that did warrant reversal. And why? Because the Court concluded that this case was "characterized by limited physical evidence and minimal corroborating testimony" - a statement that is difficult to reconcile both with the Courts own recitation of the facts and its rejection of various defense challenges to the reliability of the evidence presented by the Government.

Nevertheless, the Court ultimately stated: "We cannot conclude that a reasonable jury would be compelled to find that Noble possessed or distributed 1000 kilograms or more of marijuana or marijuana equivalent." On that basis, it vacated the defendants sentence and remanded with instructions to resentence him to the statutory maximum of 20 years.

QUOTE OF THE WEEK - The potential for sentencing abuse in drug cases.

"In a sentencing regime that largely equates culpability with the amount of drugs attributable to the defendant, the potential for abuse by law enforcement agents is substantial. In normal sting operations, the agent can increase quantity simply by delaying arrest until the agent has made four or five buys rather than one or two. And the additional amount of drugs the defendant sells to the agent goes a long way to determine the defendant's ultimate sentence under the U.S. Sentencing Guidelines.

"In reverse sting operations, where the government supplies the drugs, the risk of abuse is magnified. By changing the terms of the deal - lowering the price, offering favorable credit terms, etc. - the government can transform a defendant who is a small dealer into a more substantial one, without regard to the defendant's proclivities. The government may not only fix the drug quantity, as in the ordinary sting, it may well expand the scope of the crime to include additional participants, firearms, or money laundering." (Judge Nancy Gertner, in U.S. v. Lora, 129 F.Supp.2d 77, 80 (D.Mass. 2001)).

Copyright © 2001 Punch and Jurists, Ltd.