Vol. 10, No. 8	Covering Cases Published in the Advance Sheets through February 24, 2003

Highlights of this Issue:

Anti-Terrorism

• In Padilla, on a motion for a rehearing by the Government, Judge Mukasey of the S.D.N.Y. sharply rejected the Government’s motion to reverse his previous ruling that Jose Padilla, the American citizen alleged to be the “dirty bomber,” was entitled to meet with counsel and contest his detention; and, because the Government had no new information to justify its motion, he suggested the Government was stalling, hoping for a ruling from some other court that might bolster its position.
  
  
• In Al Odah, the D.C. Circuit held that the district courts in three consolidated cases have no jurisdiction to adjudicate various claims regarding the legality and conditions of confinement of aliens being held indefinitely as “enemy combatants” at the U.S. naval base at Guantanamo Bay, Cuba.
  
  
  
• In the two Handschu decisions, Judge Haight of the S.D.N.Y. gave his final approval to a wholesale revision of a set of internal guidelines of the New York City Police Department, which were adopted in 1985 pursuant to a consent decree and which imposed strict limitations on its surveillance activities. The new rules give the Police significantly greater freedom to spy on and infiltrate groups suspected of terrorist activities, even in the absence of any criminal activity.

Guidelines

• In Ahmed, the Fifth Circuit held that the district court had “clearly erred” when it imposed an enhancement for obstruction of justice, principally because the Government was seeking to punish the defendant “not for impeding the investigation, but for not aiding in the investigation.”

Apprendi

• In Banuelos, a divided panel from the Ninth Circuit held that where a drug quantity finding as to reasonable foreseeability or scope of a conspiracy exposes a conspirator to a higher statutory maximum than he otherwise would face, that finding must be made by a jury or, in the case of a guilty plea, by the court beyond a reasonable doubt.

Redesigned Web Site for the U.S. Sentencing Commission

Last week, the U.S. Sentencing Commission unveiled its newly designed Web site at www.ussc.gov. Some of the new features - such as the drop-down menus and the better organized layout - are a marked improvement over the old site which was difficult to navigate. However, the site’s principal new feature - a site-wide search engine - is not very helpful. We tried a number of searches on both www.ussc.gov and www.google.com - and the clear winner was Google. For example, a search for Guideline Amendment 603 (dealing with aberrant conduct) produced more that 50 results on the Sentencing Commission’s site - none of which were relevant or in the proper time frame. Conversely, using a site-specific search on Google (i.e., typing the words “amendment 603" site:www.ussc.gov) quickly produced 21 results - almost all of which were relevant to the topic of aberrant conduct and to Amendment 603 that was enacted in 2000.

Padilla v. Rumsfeld, No. 02 Civ. 4445 (MBM) (S.D.N.Y. 3/11/2003 ) (Judge Mukasey)

Out of the large number of alleged terrorist cases that have led to arrests and detentions since 9/11, only a few have involved U.S. citizens. But those few cases have attracted huge interest because of the Government’s increasingly strident position that citizens who are charged with terrorist crimes somehow fall into an abyss where they lose all of their constitutional rights.

Jose Padilla, an American citizen, was arrested in Chicago on May 8, 2002 - as a material witness in the ongoing September 11 investigations. Padilla was initially brought to New York; and Judge Mukasey appointed New York attorneys Donna Newman and Andrew Patel to represent him. They quickly filed a motion to dismiss the material witness warrant against Padilla - only to learn that Padilla had been surreptitiously scooted out of the jurisdiction of the far-too-liberal New York judges to the friendly skies of the Fourth Circuit. President Bush had signed an order designating Padilla as an “enemy combatant.” Before the ink on that order was dry, Padilla was transferred to a U.S. Navy brig in Charleston, S.C. where he has been held since - incommunicado and without access to his appointed counsel - and even without charges being filed against him, although Attorney General Ashcroft has publicly accused Padilla of being part of a plot to explode a radiological or “dirty bomb” in the United States.

In Padilla ex rel. Newman v. Bush, 233 F.Supp.2d 564 (S.D.N.Y. 2002) (P&J, 11/18/02) (Padilla I), over a lot of objections from the Department of Justice and the Department of Defense, Judge Mukasey ruled that, while the President “logically and legally” has the right to designate and detain a U.S. citizen as an “enemy combatant,” that citizen-defendant also has the right to legal counsel so he can challenge the allegations against him in court. He thus directed the Secretary of Defense Donald Rumsfeld to let Padilla meet with counsel "for the purpose of submitting to the court facts bearing upon his petition, under such conditions as the parties may agree to, or, absent agreement, such conditions as the court may direct so as to foreclose, so far as possible, the danger that Padilla will use his attorneys for the purpose of conveying information to others." (Padilla I, id. at 605).

Judge Mukasey’s decision upset the Government, particularly since it forebode images of constitutional or judicial restraints on its ability to deal with those it chooses to accuse as enemies of the state. So the Government asked for a rehearing. In its brief, the Government argued that letting a lawyer into the process "would threaten permanently to undermine the military's efforts to develop a relationship of trust and dependency that is essential to effective interrogation." That could "set back his interrogations by months, if not derail the process permanently." (The New York Times, Jan. 10, 2003).

Judge Mukasey granted the motion for a rehearing, although he pointedly noted that the Government had failed to meet the standards for reconsideration set forth in Local Civil Rule 6.3. (At a hearing on the Government’s motion, Judge Mukasey asked Deputy Solicitor General Paul Clement five times whether he had any new information to justify the motion. Judge Mukasey noted in this decision that Clement “finally said no.”)

The Government’s efforts to convince Judge Mukasey to reverse his decision in Padilla I met with similar results. Judge Mukasey commented that “[t]he government's arguments here are permeated with the pinched legalism one usually encounters from non-lawyers.” He continued: “More than a match” for the Government’s assertions were the submissions of the New York State Association of Criminal Defense Lawyers, whose amicus curiae brief raised the “specter” of the Japanese-American detentions during World War II, and called Padilla’s detention “a repudiation of the Magna Carta.” [A copy of that amicus brief, written by attorneys Joshua Dratel of New York City and Donald Rehkopf of Rochester, has been posted on our Web site.]

Those images suggested to Judge Mukasey that “if Padilla does not receive the full panoply of protections afforded defendants in criminal cases, a dictatorship will be upon us, the tanks will have rolled.”

Judge Mukasey then concluded: “Lest any confusion remain, this is not a suggestion or a request that Padilla be permitted to consult with counsel, and it is certainly not an invitation to conduct a further ‘dialogue’ about whether he will be permitted to do so. It is a ruling - a determination - that he will be permitted to do so.”

The Government has not yet announced whether it will appeal this latest ruling by Judge Mukasey.

Handschu v. Special Services Div., No. 71 Civ. 2203 (S.D.N.Y. 02/11/03) (Judge Haight)
Handschu v. Special Services Div., No. 71 Civ. 2203 (S.D.N.Y. 03/12/03) (Judge Haight)

Back in 1985, District Judge Haight approved a consent decree (herein the “HCD”) in the case entitled Handschu v. Special Services Division, 605 F.Supp. 1384 (S.D.N.Y. 1985), which limited the New York City Police Department’s ability to clandestinely investigate political groups. The plaintiffs in that case, led by Buffalo attorney Barbara Handschu, Abbie Hoffman and 14 other people, claimed that the Special Services Division of the Police Department (which was known as the “Red Squad” for its penchant for investigating persons suspected of having Communist sympathies) had violated their constitutional rights by utilizing various surveillance and search techniques and practices to investigate them, without obtaining any judicial authorizations.

Among other things, that decision led to the creation of the Handschu Authority within the Police Department, which established a set of guidelines that were supposed to regulate and limit the police’s use of photographs and videotapes to maintain a watch over the political activities of people who were not suspected of engaging in any criminal activity but whose political activities were suspect. (The Village Voice recently published a detailed history of the HCD and the efforts of the Police Department to terminate that decree in the aftermath of 9/11. See “The NYPD Wants to Watch You,” by Chisun Lee, The Village Voice, December 18-24, 2002.)

Ever since 9/11, the Police Department has complained that the HCD has limited its ability to investigate terrorist threats and prevented it from infiltrating groups that may have ties to terrorism. Accordingly, it asked Judge Haight to eliminate or substantially modify the HCD. In its motion papers filed these current actions, the Police argued that many of the HCD restrictions were seriously “outdated by the events of September 11th”; and Judge Haight responded that the Police assessment was “an exercise in common sense.”

As all of this was going on, the Department of Justice recently began circulating to selected members of Congress its latest legislative proposal to adopt a tough new anti-terrorist law, known as the Domestic Security Enhancement Act of 2003 (Patriot II). One of the key provisions of Patritiot II is Section 312, which would terminate - immediately and without any judicial review - all pre-existing consent decrees that limited the ability of law enforcement agencies to gather information from organizations and individuals they suspected of any improper activities. The proposed legislation specifically identified the HCD as the type of consent decree that had to be eliminated in its entirety. (See, Patriot II, P&J, 2/3/03).

On February 11, 2003, in a decision that received surprisingly little media coverage, Judge Haight gave preliminary approval to a substantial overhaul of the HCD. Attached to his ruling is a complete copy of the proposed revisions to the Handschu guidelines.

Then, on March 12, 2003, Judge Haight gave final approval to the modifications, which stripped away many of the HCD restrictions on the Police Department. Under the new rules, the Police Department will no longer need to obtain specific information of criminal activity before investigating a political group. In addition, officers will no longer have to request permission from the three-member panel, known as the Handschu Authority, before commencing investigations. Finally, the new guidelines make it clear that they are intended for internal purposes only and they do not create any additional rights for prospective plaintiffs alleging an improper investigation. This “authorize-them, but also immunize-them” approach to law enforcement is also a prominent feature of Patriot II and is obviously designed to encourage law enforcement agents to be more zealous in pursing leads - without having to worry about civil rights lawsuits.

In Brief

Guidelines: U.S. v. Goodwin, 317 F.3d 293 (D.C.Cir. 2003) - Interpreting Application Note 14 to U.S.S.G. § 2D1.1, the Court held that when a defendant seeks a downward departure in a reverse sting operation based on claim that Government agents set an artificially low price of drugs to induce the purchase, the defendant must prove both that the sale was "significantly below market value" and that he was induced to purchase a "significantly greater quantity" than he otherwise would have; U.S. v. Cruz, 317 F.3d 763 (7th Cir. 2003) - In a case where the defendant, an office manager, was convicted of bank fraud for forging her employer’s checks, the Court held that an enhancement for abuse of position of trust under U.S.S.G. § 3B1.3 was proper “even if the defendant did not occupy a position of trust in relation to the victim of the offense of conviction [here, the bank]; it is enough if the defendant also harmed the person whose trust she did abuse”; U.S. v. Hodge, No. 01-2198 (3rd Cir. 03/11/2003) - Defendants' convictions for distributing a controlled substance analogue were reversed because it was clear that Congress did not intend to include innocuous substances, such as a wax/flour mixture that looks like crack, within its definition of controlled substance analogues under 21 U.S.C. section 802(32)(A); U.S. v. Hayes, No. 02-4421 (4th Cir. 03/14/2003 - While the Guidelines preserve a broad range of discretion for district courts, a district court has no discretion to disregard relevant conduct in order to achieve the sentence it considers appropriate; U.S. v. Franklin, No. 01-30226 (9th Cir. 03/17/03) - Imposition of the firearm discharge enhancement under U.S.S.G. § 2B3.1(b)(2)(A) was proper where the defendant was not present at the robbery but could foresee such use, but an enhancement for reckless endangerment under U.S.S.G. § 3C1.2 for such conduct was reversed.

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