A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 20              Covering Cases Published in the Advance Sheets through May 14, 2001

Highlights of this Issue:

Supreme Court Decision:

• In Penry the Supreme Court vacated for the second time, and on very narrow grounds, the death penalty that was imposed on a mentally retarded Texas inmate in a decision that appears to set the stage for a much broader ruling next year on whether the Eighth Amendment bars the imposition of the death penalty on mentally retarded persons.

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

• In Buckendahl the Eighth Circuit held that a district court may not grant a downward departure based on an interdistrict sentencing disparity arising from the blanket refusal of the prosecutor in one district to agree to grant use immunity under U.S.S.G. § 1B1.8, even where that practice results in significant and actual prejudice to a defendant.
  
  
• In Caperna the Ninth Circuit again affirmed that downward departures to equalize sentencing disparities in the same case is a proper grounds for departure under appropriate circumstances, stating, however, that the co-defendant and defendant must be convicted of the same offense.
  
  
• In Bennett the Second Circuit reversed a 10-year upward departure imposed on a defendant convicted of operating a pyramid scheme because his wife refused to surrender voluntarily alleged criminal proceeds that were the subject of a separate forfeiture proceeding.
  
  
• In McClain the Eleventh Circuit held that the two-level enhancement under U.S.S.G. § 3B1.4 for using a minor to commit a crime does not require a defendant to actually know that the person used is a minor.

Sanctions for Pleading Guilty Late: Paying the Costs of Assembling the Jury:

• In Banks-Giombetti the Seventh Circuit rejected as unauthorized a sanction covering the costs of assembling the jury venire imposed on a defendant who waited till the day of trial to plead guilty.

Inordinate Delay in Deciding and Appeal Not a Ground for Estoppel:

• In Kowalczyk the Tenth Circuit held that a nine year delay in deciding an appeal of a deportation order by an immigrant did not establish the type of "affirmative misconduct" required to invoke the doctrine of equitable estoppel against the Government.

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 now contains summaries of more than 220 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 49 cases that the Supreme Court has vacated to date based on Apprendi.

Penry v. Johnson, No. 00-6677 (U.S. Sup. Ct. 06/04/2001) (Justice OConnor)

This high profile decision marks the second time that the Supreme Court has vacated the death sentence of Johnny Paul Penry. In 1979, Penry committed a brutal murder in Texas. He was tried, convicted and sentenced to death despite the fact that he was deemed to be mentally retarded. (Over the years since his birth, Penry had been tested as having an I.Q. between 50 and 63. An I.Q. below 70 is generally accepted as mental retardation.) In its first decision, Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I), the Supreme Court vacated Penrys sentence on very narrow grounds - namely that the jury was not properly instructed about how to weigh the mitigating evidence of Penrys retardation before imposing the death sentence.

However, in Penry I (a decision also written by Justice OConnor) the Court also stated that while "mental retardation is a factor that may well lessen a defendant's culpability for a capital offense," it could not "conclude today that the Eighth Amendment precludes the execution of any mentally retarded person of Penry's ability convicted of a capital offense simply by virtue of his or her mental retardation alone. . . . While a national consensus against execution of the mentally retarded may someday emerge reflecting the evolving standards of decency that mark the progress of a maturing society, there is insufficient evidence of such a consensus today." (Penry I, id., at 340).

Penry was retried in 1990, and he was again found guilty of capital murder. During the penalty phase, the defense again put on extensive evidence regarding Penrys mental impairments and childhood abuse. However, the trial court gave the same instructions to the jury that the Supreme Court had found flawed in Penry I - only this time with a supplemental instruction.

The jury instructions required the jury to weigh the same three "special issues" that were raised in the first case, namely whether Penrys actions were deliberate; whether it was probable that he would commit further acts of violence; and whether his conduct had been unreasonable in response to a provocation. Texas law mandated the death sentence if the jury answered "yes" to all three questions. The new supplemental instruction told the jury to consider mitigating circumstances such as Penrys character or circumstances of the crime "which you believe could make a death sentence inappropriate in this case." The trial judge then continued that if the jury concluded that a mitigating factor compelled a life sentence instead of death, then it should answer "no" to one of the three original questions concerning deliberateness, future dangerousness, or unreasonable response to provocation.

Once again, the Court decided this case on narrow grounds. Justice OConnor concluded that the supplemental instruction "made the jury charge as a whole internally contradictory" and that "it would have been both logically and ethically impossible for a juror to follow both sets of instructions." She explained that the instructions as a whole "placed law-abiding jurors in an impossible situation" by telling them that the only way they could take account of Penrys retardation to avoid a death penalty was to answer falsely one of the three questions and "violate their oath to render a true verdict." Finally, she concluded that the instructions did not permit the jurors "to make a reasoned moral response" to the mitigating evidence that Penry offered of his retardation and his history of severe abuse as a child.

Justices Rehnquist, Scalia and Thomas dissented. Writing for the dissenters, Justice Thomas acknowledged that Penrys mitigating evidence "did not fit neatly into any of the three special issues for imposing the death penalty under Texas law." Nevertheless he felt that the instructions given to the jury were "unambiguous"; and he criticized the majority for twice overruling the death penalty in this case by resorting to "legal acrobatics" and "technical parsing" of the language of the jury instructions.

No matter what the jury may decide on the remand of Penrys sentence, he may still escape the death penalty. The Supreme Court has recently granted certiorari in a case that will be heard next term (McCarver v. North Carolina, No. 00-8727, 121 S.Ct. 1401), where the Court will consider the broader question it did not address in the instant case - namely, whether there is now a consensus that the Eighth Amendments prohibition against cruel and unusual punishment bars the application of the death sentence to mentally retarded convicts. In addition, the Texas legislature has recently passed a bill that would prohibit capital punishment for mentally retarded defendants - although the new Governor of Texas has not yet indicated whether he will sign that bill into law.

United States v. Banks-Giombetti, 245 F.3d 949 (7th Cir. 2001) (Per Curiam)

On the day of his trial for charges stemming from a bank robbery, the defendant in this case entered a guilty plea to the entire indictment. The district court (Judge Lozano of the Northern District of Indiana), obviously displeased that the defendant had waited so long to plead guilty (and perhaps wishing to send a message to future defendants), decided to impose a sanction for the defendants tardiness: he ordered the defendant to pay the sum of $1,315.90 representing the costs of assembling the jury venire.

The defendant appealed, arguing that sanction was unauthorized; and the Fifth Circuit agreed. It noted that a district courts authority to assess costs against criminal defendants is found in 28 U.S.C. § 1918(b) and Rule 57(b) of the Federal Rules of Criminal Procedure. While § 1918(b) permits a district court, in its discretion, to assess the costs of prosecution against unsuccessful criminal defendants in non-capital cases, "the costs that may be assessed . . . must be authorized by statute." (Id., at 952). It then noted that 18 U.S.C. § 1920 lists various types of costs that may be assessed against a defendant, but that section "does not list jury costs as a cost of prosecution." (Id., at 953).

The Court next noted that Rule 57(b) "allows district courts to regulate the practice of litigants and attorneys in any manner consistent with federal law, the Federal Rules of Criminal Procedure, and their local rules. But absent an authorizing statute, a Federal Rule of Criminal Procedure, or a local rule, a district court may not impose a sanction or other disadvantage for noncompliance with any requirement arising from a source other than a statute or rule without first giving the party actual notice of the requirement. Fed. R. Crim. P. 57(b)." (Id.) Here, the Northern District of Indiana did not have an applicable local rule and the parties conceded that the defendant did not have actual notice of the possibility of being assessed jury costs if he changed his plea on the eve of trial. For those reasons, the Court vacated the sanction that has been imposed as improper.

Kowalczyk v. I.N.S., 245 F.3d 1143 (10th Cir. 2001) (Judge Lucero)

This is one of those snippets of justice that raises eye-brows about the treatment we accord to aliens - while we are quick to tell other nations to treat their immigrants more fairly. In 1989, the petitioner came to the United States to join the crew of a fishing vessel run by his employer, a state-owned Polish fishing company. Upon arrival, he (and eight co-workers) informed immigration authorities that he wished to apply for asylum. He was immediately taken to Denver for detention and hearings that lasted some six months. An immigration judge denied petitioners application for asylum and a stay of his deportation; and, in March 1990, the petitioner then filed a timely notice of appeal. He was also released from detention and allowed to remain free.

"More than nine years after Kowalczyk filed his notice of appeal and many years after the appeals of his co-workers who defected at the same time were decided, . . . on October 18, 1999, the BIA finally denied Kowalczyk's application for asylum and withholding of deportation and dismissed his appeal. The BIA reviewed the record de novo and found . . . that petitioner failed to establish a well-founded fear of persecution and that he failed to demonstrate any past persecution so severe that repatriation would be inhumane." (Id., at 1146).

On his appeal to the Tenth Circuit, he argued, inter alia, that the Government should be estopped from denying his application "because the more than nine years it took for the BIA to render a decision constituted affirmative misconduct." (Id., at 1147).

Sorry, said the Court. Although the Governments delay was "mystifying," "deeply troubling," and "a malfunction of the administrative process", the Court denied any relief on that ground because "equitable estoppel does not lie against the government in the same manner as it does against private litigants." (Id.). Citing Heckler v. Cmty. Health Servs., 467 U.S. 51, 60 (1984), the Court expressed the view that "[w]hen the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined." It also concluded that equitable estoppel may lie against the Government only if some type of "affirmative misconduct" can be shown.

Ultimately, the Court did order a rehearing of the BIAs decision on other unrelated grounds. But it flatly concluded that the nine year delay was "insufficient to demonstrate affirmative misconduct necessary to equitably estop the government from administering the immigration laws entrusted to its enforcement by Congress." (Id., at 1050) Oy vay!

Copyright © 2001 Punch and Jurists, Ltd.