Vol. 10, No. 1	Covering Cases Published in the Advance Sheets through January 6, 2003

Highlights of this Issue:

Apprendi

• In an important decision, the Ninth Circuit held, in Velasco-Heredia, that the district court had committed harmful Apprendi error in determining by a preponderance of the evidence that, because the defendant was responsible for more than 50 kilograms of marijuana, he must be sentenced to a mandatory minimum sentence. The ruling carefully distinguished and clarified the scope of the Supreme Court’s recent ruling in U.S. v. Harris.
  
  
• In Martinez, Judge Gertner (D.Mass.), rejected the Government attempt to impose a mandatory minimum sentence on a defendant, based on its allegation that “serious bodily injury” resulted from his distribution of the drugs involved, even though it never presented any evidence of such injury to the grand jury. Her decision presents an excellent analysis of the current boundaries of both Apprendi and Harris.
  

Anti-Terrorism

• The Sixth Circuit denied the Government’s petition for a rehearing en banc of a panel’s earlier decision in Detroit Free Press, where Judge Damon Keith eloquently argued that the Government had acted unlawfully in holding hundreds of deportation hearings in secret based only on the Government’s assertion of links to terrorism. That decision creates a sharp conflict with the Third Circuit’s recent decision in North Jersey Media Group - and probably presages a forthcoming appeal to the Supreme Court of the validity of a recent INS directive that mandated such secret deportation hearings in all cases where the Government has asserted a terrorist link.
  
  
• In what appears to be the first court ruling involving U.S.S.G. § 3A1.4, the terrorism Guideline, the Second Circuit held in Meskini that those enhancement provisions, which mandate increases in both the offense level and the criminal history category, do not involve impermissible double counting since Congress and the Sentencing Commission “had a rational basis for creating a uniform criminal history category for all terrorists.”
  
  

Child Pornography

• In Boyd, the Sixth Circuit upheld a two-level enhancement for the “transmission” of child pornography under U.S.S.G. § 2G2.2(b)(5), even though the defendant only downloaded or “received” the pornography, holding that Guideline applies to computer transmissions in general and is not limited to transmissions by the defendant. The Court also noted, but did not address, an “apparent inconsistency” between the sentencing provisions of U.S.S.G. §§ 2G2.2 and 2G2.4.

Don’t miss our News From the Internet Section for information about a new site at www.regulations.gov for access to all Government regulations; and for information about a helpful search technique for those who use the Google search engine.

U.S. v. Martinez, No. 02-10018 (D.Mass. 12/12/02) (Judge Gertner)

The defendant in this case was indicted on five counts involving the illegal distribution of the drug known as ecstasy. The caption of one of those counts described that offense as “distribution resulting in serious bodily injury,” in violation of the provisions of 21 U.S.C. § 841(b)(1)(C), even though the Government “neither alleged bodily injury nor presented any information or evidence on the subject to the grand jury.” The purpose of alleging serious bodily injury was to increase the sentencing penalties to which the defendant would be subject if he was convicted. The penalty provisions of § 841(b)(1)(C) establish two different sentencing ranges: probation to twenty years, in the case of simple distribution; and twenty years to life, in the case of aggravated distribution (i.e., where death or serious bodily injury results from the use of the drug).

The defendant moved to dismiss the count that alleged, in its caption, that serious bodily injury had occurred. The Government not only opposed the motion, it went one step further. It boldly argued that its allegation of serious bodily injury in the indictment was sufficient to transform the sentencing range for simple distribution into a mandatory minimum sentence of twenty years, so long as it established, at sentencing and by a mere preponderance of the evidence, that some serious bodily injury had in fact occurred.

Judge Gertner dismissed the count at issue and emphatically concluded that the defendant was not subject to a mandatory minimum sentence “based on the allegations of serious bodily injury’.” Stating that the Government’s position was “to be charitable, creative,” she forcefully concluded that it was “wrong as a reading of § 841, wrong as an interpretation of Apprendi [v. New Jersey], wrong as an interpretation of Harris [v.U.S], and wrong as an interpretation of the Guidelines .” Of equal significance, her opinion contains an excellent summary of the holdings and the current boundaries of the Supreme Court’s decisions in Apprendi and Harris

Emphasizing that the Government had offered “no authority” for its novel interpretation of § 841, Judge Gertner commented: “The fact that the two separate statutory sentencing ranges in § 841(b)(1)(C) overlap at the magic number of twenty years does not transform the twenty-year floor of the higher enhanced range into a mandatory minimum sentencing factor that can be imported into the baseline range. . . . Were I to accept the government's invitation to statutory vivisection, ‘serious bodily injury’ would become ‘a tail which wags the dog of the substantive offense’ in this case, which is constitutionally unacceptable.”

Judge Gertner also rejected the Government’s last-ditch efforts to salvage its position by suggesting that she utilize the relevant conduct provisions of the Guidelines to take its “serious bodily injury” argument into consideration. She explained that U.S.S.G. § 1B1.3 permits consideration of uncharged evidence - “but with the proviso - ‘unless otherwise specified’.” She noted that the language of the Guidelines “is explicit”: under U.S.S.G. § 2D1.1, where the “offense of conviction establishes that death or serious bodily injury resulted from the use of the substance,” the base offense level is increased to level 38. However, she concluded that the “offense of conviction” in this case would not “establish” that serious bodily injury took place “because the indictment does not charge bodily injury as an element of the offense.”

Detroit Free Press v. Ashcroft, No. 02-1437 (6th Cir. 01/22/2003) (Per Curiam)

In August, 2002, Circuit Judge Damon Keith authored a searing indictment of a recently enacted INS policy that requires the holding of all “special interest” deportation hearings in secret whenever the Government asserts that the alien has some link to terrorism. With stinging criticism of that new policy, Judge Keith wrote, in Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002) (Detroit Free Press I) (P&J, 08/05/2002), that the Bush administration had acted unlawfully in holding hundreds of such secret deportation hearings; and he questioned the administration’s commitment to an open democracy. In invalidating the blanket closure of all such “special interest” cases, Judge Keith wrote:

“Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them ‘special interest’ cases. The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment ‘did not trust any government to separate the true from the false for us.’ They protected the people against secret government.” (Detroit Free Press I, id., at 683). (Emphasis added) (Internal citations omitted).

That decision was quickly followed, in October, 2002, by a Third Circuit decision which addressed the same INS policy directive. In North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002) (P&J, 09/16/02), a divided panel from the Third Circuit upheld that Government’s right to hold such “special interest” deportation hearings in secret and concluded that neither the press nor the public have a constitutional right to attend deportation hearings of aliens suspected of having a connection to terrorist activities. The majority wrote: “We are unable to conclude that openness always plays a positive role in [Sept. 11-related] deportation hearings at a time when our nation is faced with threats of such profound and unknown dimension.” (North Jersey Media, id., at 220.)

In a strong dissent, Judge Scirica wryly observed that “deference is not a basis for abdicating our responsibilities under the First Amendment.” (North Jersey Media, id., at 226.)

Within two weeks of the New Jersey Media decision, the Government filed a petition for a rehearing en banc of the Detroit Free Press decision. Last week, on January 22, 2003, in an unsigned per curiam order, the Sixth Circuit declined to review Judge Keith’s decision. Now that the issue has been joined by two contradictory opinions, the stage has been set for an early appeal to the Supreme Court.

IN BRIEF

Alien Detention: Soto-Ramirez v. Ashcroft, 228 F.Supp.2d 566 (M.D.Pa. 2002) - The court denied a writ of habeas corpus to a Mariel Cuban who has been awaiting deportation since 1997, on the grounds that his continued detention was not a violation of due process and did not constitute cruel and unusual punishment.

Arson: U.S. v. Ballinger, 312 F.3d 1264 (11th Cir. 2002) - Last week we noted a decision where the Sixth Circuit upheld an arson conviction under 18 U.S.C. § 844(i) of a pastor who burned his church, after concluding that the church was actively employed in commercial activities that had a sufficiently substantial effect on interstate commerce to justify a Federal prosecution. (U.S. v. Rayborn, 312 F.3d 229 (6th Cir. 2002)). In the instant case, the Eleventh Circuit vacated the convictions of a defendant who had deliberately set fire to five churches, on the grounds that none of the churches had sufficient connections with interstate commerce to support a federal case under the Church Arson Prevention Act (18 U.S.C. 247).

Collateral Attacks on Prior Convictions: U.S. v. Dominguez, No. 02-10106 (9th Cir. 1/21/2003) - The district court erred by improperly placing the burden of proof on the Government to establish that the defendant’s prior waivers of counsel had been valid, in a case where the defendant was challenging the constitutionality of those prior convictions.

Prison Issues: Brown v. Crowley, 312 F.3d 782 (6th Cir. 2002) - A prisoner's claim of retaliation was actionable where he established that the prison's issuance of a major misconduct charge was motivated at least in part by the prisoner's filing of a complaint alleging embezzlement of his funds.

Sentencing: U.S. v. Allen, 312 F.3d 512 (1st Cir. 2002) - A special condition of supervised release imposed on a defendant convicted of income tax evasion, which prohibited him from using alcohol during supervision, was reasonably related to defendant's history and to goals of supervised release; and a requirement that the defendant attend a mental health treatment program as directed by the probation officer was not an impermissible delegation of judicial authority to a probation officer.

NEWS FROM THE INTERNET

• Here’s a noteworthy new site on the Internet that is worth bookmarking - www.regulations.gov/. The site describes itself as a “one-stop Federal regulatory clearing house that makes it easy for citizens to participate in Federal rulemaking . . .” Actually, the site is quite a bit more. From this site, you can view a description of every proposed and final Federal regulation currently open for comment, read the full text of the regulations, and submit your comments to the Federal agencies responsible for the rulemaking action.

  The site is also a good starting point for access to existing Federal regulations. It contains links to the information pages of some 80 regulatory agencies (which are listed in a drop down list), Executive Orders, OMB policy directives, and rule tracking information, as well as a gateway to Federal Register publications on GPO Access, including the daily Federal Register, the Code of Federal Regulations (CFR) and e-CFR, a new online edition of the CFR updated daily.

• We also note a feature that may help to enhance your searches on www.google.com. We have often found that a simple search technique on the Google site can produce faster and more relevant results than can be achieved by using the search engine provided on the specific site itself. Thus, for example, if you want to search the BOP site (and only the BOP site) for information about “dental care,” try that search by using a “site-specific” search on Google. In the Google search box, just type in your search request like this:
                                                               dental care site:www.bop.gov

  Or if you want to search the United States Sentencing Commission’s site for Guidelines dealing with terrorism, type in the Google search box the following:
                                                               terrorism site:www.ussc.gov
  

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