Vol. 10, No. 20	Covering Cases Published in the Advance Sheets through May 19, 2003

Highlights of this Issue:

The DEA, Kidnapping and Accountability: The Final Saga in the Alvarez-Machain Case?

• In Alvarez-Machain, by a vote of 6 to 5, a sharply divided en banc court from the Ninth Circuit affirmed the right of Dr. Alvarez-Machain to collect at least some damages from the Government stemming from his warrantless arrest and kidnapping by the DEA in Mexico in 1990. While the majority agreed that many of his claims were barred, it also concluded that Alvarez could seek relief under the Alien Tort Claims Act for his “shocking” abduction. The dissenting judges called that ruling “bewildering” and said that its “implications for our national security [were] ominous.”

The Evidentiary Standards Under the Federal Death Penalty Act

• In O’Driscoll, Judge Muir of the M.D.Pa. presented a revealing but disquieting analysis of some of the evidentiary standards that apply during the sentencing hearing under the Federal Death Penalty Act, where evidence is deemed admissible regardless of its admissibility under the Federal Rules of Evidence and where the jury is permitted to hear evidence of past unadjudicated acts of violence.
  

Guidelines

• In the [Shawn] Smith case, the Second Circuit reversed a downward departure based on family circumstances; but the case is principally noted as one of the first examples we have seen of how the Government intends argue that the recently enacted Feeney Amendment applies to sentencing departures in general. The case also raises (but does not answer) a question as to whether the provisions of that new law apply to sentences on appeal at the time of its enactment.
  
  
• Two cases this week addressed different issues regarding sentencing departures based on diminished capacity under U.S.S.G. § 5K2.13. In Cockett, a sharply divided panel from the Sixth Circuit affirmed a downward sentencing departure granted to a defendant in a tax fraud case, based on a significantly reduced mental capacity at the time of the offense was committed, even though the jury was expressly required to find beyond a reasonable doubt that the defendant had acted willfully. In the [Antonio] Smith case, the Ninth Circuit held that the “catchall” provisions of U.S.S.G. § 5K2.0 do not trump the specific prohibition in § 5K2.13 against departures when the significantly reduced mental capacity “was caused by the voluntary use of drugs or other intoxicants.”

Border Search Based on "Inferences and Deductions" Held Valid Under the Fourth Amendment

• In Gandara-Salinas, the Tenth Circuit upheld the validity of a border search after the district court had ruled it invalid on the grounds that it was based on nothing more than an "inchoate and unparticularized suspicion or hunch" arising out of a series of innocuous events.

Alvarez-Machain v. U.S., No. 99-56762 (9th Cir. 06/03/2003) (Judge McKeown) (En Banc)

This case started back in 1990 with abduction at gunpoint of Dr. Alvarez-Machain, a Mexican citizen, from his office in Guadalajara by DEA agents and his subsequent removal to the United States for a trial on charges that he had participated in the murder of a DEA agent. The case has been reported in numerous previous published decisions, one of which described the facts by stating that, after Dr. Alvarez was kidnaped, a team of men "blindfolded him, transported him to an unknown location, and proceeded to beat him and subject him to electrical shocks. His kidnappers injected him with unknown chemical substances causing nausea and dizziness, denied him food and water, and forced him to lie down on the floor for a long period of time. His life was repeatedly threatened, as well as the safety of his family. . . . The DEA agents threatened [Dr. Alvarez] during the interrogation, denied him food and adequate medical attention, and at one point forced him to stand naked and be photographed." (Alvarez-Machain v. U.S., 96 F.3d 1246, 1248-49 (9th Cir. 1996)).

Among the many proceedings over the years was an appeal to the Supreme Court in which Dr. Alvarez argued that the Federal courts lacked jurisdiction to try him because his arrest violated the United States-Mexico Extradition Treaty. The Supreme Court acknowledged that Dr. Alvarez “may be correct” in asserting that his abduction was “shocking” and “in violation of general international law principles. U.S. v. Alvarez-Machain, 504 U.S. 655, 669 (1992). However, by a vote of 6 to 3, the Court also concluded that a “forcible abduction” from a foreign country did not prohibit a defendant’s trial in the United States “for a “violation of this country’s criminal laws.”

The case then proceeded to trial before Judge Rafeedie of the C.D.Cal. After the presentation of the Government’s case, Dr. Alvarez moved for a judgment of acquittal pursuant to Rule 29 of the Fed.R.Crim.P. Much to the Government’s chagrin, Judge Rafeedie granted the motion on the grounds that the Government had adduced insufficient evidence to support a guilty verdict. The court concluded that the case against Dr. Alvarez was based on "suspicion and . . . hunches but . . . no proof," and that the government's theories were "whole cloth, the wildest speculation."

Finally, after he was returned to Mexico, Dr. Alvarez filed the instant action for damages against the DEA and various Government agents, based on a long list of conventional and constitutional tort claims, including (1) kidnapping, (2) torture, (3) cruel, inhuman and degrading treatment, (4) false arrest, (5) false imprisonment, and (6) intentional infliction of emotional distress. The action was filed pursuant to a number of Federal statutes, including 42 U.S.C. § 1983, the Federal Tort Claims Act (28 U.S.C. §§ 1346(b)(1) and 2671-2680) (“FTCA”), and the Alien Tort Claims Act (28 U.S.C. § 1350) (“ATCA”) - and it led to numerous rulings and numerous appeals on the many complex and diverse claims that were alleged.

In 1995, Judge Davies of the C.D. Cal. issued a 56-page ruling on the defendants' motions to dismiss certain claims and their motion to substitute the USA for the individual defendants. Essentially, Judge Davies threw out most of claims (such as assault and battery, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress); but he also ruled that Dr. Alvarez could pursue his claims under the FTCA against two of the defendants, Garate and Sosa, who were Mexican nationals and who participated in the kidnaping at the behest of the DEA.

Judge Davies also held that plaintiff's claims for constitutional violations which occurred once Dr. Alvarez was brought into the U.S. (threats during interrogation, denial of food, assigning Dr. Alvarez of a false name to prevent his family and the Mexican government from locating him) could go forward against the individual DEA agents and officers. Thus, he denied the defendants' motions seeking qualified immunity. He also limited Dr. Alvarez’s ability to pursue any constitutional claims for actions before he was brought into the U.S., holding that the Fourth and Fifth Amendments do not apply beyond the U.S. borders.

Regarding the claims against defendant United States, Judge Davies ruled that the FTCA claims (all state law and common law tort claims based on negligence and certain intentional tort claims) occurring before 7/9/91 were not tolled by Dr. Alvarez' imprisonment and prosecution, and were thus time barred. However, the Judge ruled that the remaining claims occurring after 7/9/91, which include the government's withholding of exculpatory evidence, were not time barred.

Still later, the case was transferred to Judge Wilson of the C.D.Cal., who granted summary judgment against one of the kidnappers (Sosa) on the ground that the kidnaping violated international law. He also granted the United States' motion for summary judgment under the FTCA on privilege grounds. Finally, a one day trial was held on May 19, 1999. Judge Wilson entered a judgment of $25,000, principally because he found that Dr. Alvarez’ damage claims were cut off as a matter of law the moment he was arrested by federal officials in the United States.

More appeals followed, and ultimately, in a decision reported at 266 F.3d 1045 (9th Cir. 2001), a panel from the Ninth Circuit affirmed the liability of Sosa on the ATCA claims, upheld the damage rulings under the ATCA, and reversed the dismissal of Dr. Alvarez’s FTCA claims. The Ninth Circuit then agreed to rehear the case en banc.

In this lengthy (108 page) decision, by a vote of 6 to 5, a majority of the en banc court agreed that while Alvarez was not entitled to damages as a result of being forcibly removed to the United States, he was entitled to damages for his “arbitrary” arrest and detention. The majority reasoned that the ”unilateral, nonconsensual extraterritorial arrest and detention of Alvarez were arbitrary and in violation of the law of the nations under the ATCA” and also gave rise to a false arrest claim under the FTCA.

The dissenting judges were horrified. In a decision written by Judge O’Scannlain, they labeled the majority’s decision an “astounding pronouncement” and they stated that “there is simply no basis in our nation’s law for this bewildering result, and the implications for our national security are . . . ominous.”

In large part, the dissenters argued that the DEA was “well within its delegated powers when arresting Alvarez.” In support of that proposition, they claimed that the provisions of 21 U.S.C. § 878(a) give the DEA the authority to make arrests anywhere in the world. That statute confers on DEA agents the authority to “make arrests . . . for any felony, cognizable under the laws of the United States” and the added authority to “perform such other law enforcement duties as the Attorney General may designate.” (Emphasis added).

(Frankly, we find little solace in, and even less support for, the proposition that the legality of the actions taken by U.S. law enforcement agents can be fixed and determined simply by virtue of the duties that the Attorney General has assigned to those agents - particularly since our current Attorney General, John Ashcroft, openly advocates an unbridled “I-can-do-anything-needed-to-fight-terrorism” philosophy.)

For the record, we also note that Judge Gould dissented separately, arguing that the executive branch’s decision to pursue a suspect abroad is “political” and beyond review by the courts.

U.S. v. O’Driscoll, 250 F.Supp.2d 432 (M.D.Pa. 2002) (Judge Muir)

The defendant in this case, Michael O’Driscoll, is currently serving a 325 year sentence at the U.S. Penitentiary in Allenwood, PA on a prior kidnapping conviction. On August 29, 2001, he was indicted on a charge of first degree murder, arising out of a stabbing death that occurred in prison in 1997. Shortly after he was indicted, the Government filed a notice of intent to seek the death penalty in this case pursuant to the provisions of the Federal Death Penalty Act of 1994 (18 U.S.C. § 3591-98) (FDPA).

As part of its filings in support of the death penalty, the Government filed a brief and six volumes of exhibits in excess of 1,000 pages in which it outlined its intent to offer “three unadjudicated acts of violence as distinct non-statutory aggravating factors to be considered and weighed by the jury” and 14 separate “unadjudicated acts of violence and misconduct in support of the non-statutory aggravating factor of future dangerousness.” (Id., at 434). (For the record we note that eleven of the total of 17 alleged unadjudicated acts of violence occurred more than a dozen years earlier, during the years 1978 through 1984).

In response to the Government’s motion, Judge Muir stated that he was presented with “a very difficult issue” because the FDPA “provides only minimal guidance regarding how to determine whether evidence regarding unadjudicated acts of violence and misconduct is reliable.” (Id., at 435). In fact, he cited the provisions of § 3593(c) which expressly provide that, at the penalty phase of the proceedings:

“The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a). Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” (Emphasis added).

Commenting on those provisions, Judge Muir dutifully stated: “The elimination of the Rules of Evidence from federal death penalty proceedings greatly concerns us. Of particular concern is the use of hearsay testimony in support of unadjudicated acts of violence or misconduct. Hearsay is generally inadmissible because it is considered unreliable. See Introductory Advisory Committee Notes to Federal Rules of Evidence 801 through 807. It is considered unreliable because the declarant is not subject to cross-examination. (Id.) The finder of fact cannot view the witness and evaluate his perception, memory, and narration.” (Id., at 435) (Emphasis added).

Responding to those “concerns,” Judge Muir then engaged in a brief review of a few other cases that have focused on the standards that should apply under § 3593(c) for determining whether unadjudicated criminal conduct is sufficiently reliable to be used in Federal death penalty proceedings. He then wrote:

“We conclude that where the government attempts to use unadjudicated acts of violence and misconduct the heightened standard of reliability applicable to capital sentencing proceedings requires that the hearsay rule be fully applicable to the penalty phase proceeding. In other words unadjudicated acts of violence or misconduct cannot be proven by hearsay testimony unless a well-recognized exception to the hearsay rule is applicable.” (Id., at 436).

Having established that standard, Judge Muir then proceeded to evaluate the reliability of the Government’s proffer of evidence on each of the 17 alleged unadjudicated acts of violence. With a single, solitary exception he concluded that the Government should be allowed to introduce to the jury evidence of all the past unadjudicated acts of violence since he had “no doubt” that the Government could prove “in accordance with the Federal Rules of Evidence and beyond a reasonable doubt” that O’Driscoll had actually committed the various alleged acts of violence that had never previously been adjudicated.

The one alleged act of past violence that Judge Muir barred the Government from presenting to the jury pertained to a charge that O’Driscoll had possessed a “shank” while he was in prison. Judge Muir noted that no shank was found on O’Driscoll or in his cell; but that, during a routine shakedown at the prison, prison officials had discovered a shank behind a “sealed shower panel that could only be opened with a special tool.” (Id., at 441). Although O’Driscoll was accused of “possessing” that shank, Judge Muir decided that it really wouldn’t be fair to let the jury hear about that charge since prison officials never discovered the special tool that was needed to access the shank and since the Government’s proffer was silent both on when the shower stall had last been inspected and when O’Driscoll had last had access to the shower.

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