Vol. 10, No. 23	Covering Cases Published in the Advance Sheets through June 9, 2003

Highlights of this Issue:

Waiver of Appeal Rights - The Debate Continues

• Two cases this week raise some interesting questions about the ever growing scope of the now standard waiver of appeal provisions that are required for most Federal plea agreements. In Andis, a divided en banc Court from the Eighth Circuit debated the gamut of arguments for and against a rigid interpretation of such non-negotiable waivers of appellate rights. In the context of the defendant’s claim that certain special conditions of supervised release that were imposed on him at sentencing were “illegal,” the Government (and some of the judges) argued that made no difference - he still couldn’t raise that issue on appeal because he had waived his rights of appeal for all purposes. The defendant (and some of the other judges) argued that there are - or should be - certain exceptions to the enforcement of appeal waiver provisions - at least one of which includes “illegal” sentences. In the end, the defendant achieved a classic Pyrrhic Victory: although he convinced a majority of the judges of the need for both a miscarriage of justice exception and an illegal sentence exception to appeal waiver provisions, the majority still concluded that he couldn’t challenge those special conditions on appeal because they really weren’t illegal and they didn’t result in any miscarriage of justice.
  
  
• In Shimoda, a panel from the Ninth Circuit dismissed the defendant’s appeal on the grounds that it was prohibited by an appeal waiver provision that barred appeals of any sentence “within the maximum provided in the statute(s) of conviction.” The defendant argued that he should be allowed to appeal because his sentence exceeded the maximum sentence permitted under the Guidelines. The Court summarily rejected the defendant’s contention that the term “statute(s) of conviction” includes the Federal Sentencing Guidelines, concluding that the language referred only to the “statutory maximum,” despite the fact that some courts have questioned whether the “statutory maximums,” as a vestige of the old law, are any longer relevant.

Forfeiture

• In the $242,484 case, the Eleventh Circuit refused to reconsider its prior ruling which reversed a forfeiture order on the grounds that the Government’s case consisted of mere suspicion but failed to establish any link to drugs. The ruling is noteworthy because it casts doubt on a number of the underpinnings normally used to justify the seizure of large sums of cash from travelers.

"Wired" Pleas

• The Bennett case from the Seventh Circuit is noted for its adoption of a new Circuit policy that requires all prosecutors to advise the district courts of the existence of all “wired” or linked pleas at the time of the Rule 11 colloquy, or face withdrawal of the accepted plea.

Guidelines

• In Camejo, the Sixth Circuit ruled that the district court had erred in summarily denying the defendant credit for a two-year, pre-offense incarceration as an immigration “hold.” The Court held that a departure on that basis is permissible despite the absence of anything in the Guidelines expressly authorizing such a departure.

U.S. v. Andis, No. 01-1272 (8th Cir. 06/27/2003) (en banc) (Judge Melloy)

Almost immediately after the advent of the Guidelines, the plea bargaining process in Federal criminal cases started undergoing two major changes. First, more defendants began to plead guilty to order to benefit from an “acceptance of responsibility” sentence reduction and to avoid, at a minimum, the “obstruction of justice” penalty that is almost automatically imposed on those who go to trials. Those factors, which can increase a sentence significantly, led to a dramatic increase in the numbers of defendants who pled guilty.

Second, the Government began demanding that, if a defendant wanted to plead guilty, he had to agree - before he even knew what his sentence would be - to waive all his statutory rights to appeal his conviction and his sentence so long as his sentence fell within the “statutory maximum” - a cap on sentences that was established by Congress years before the Guidelines came into being and one which is basically irrelevant today for sentencing purposes.

To implement the waiver of appeal, the Government presented what has become a generally uniform and non-negotiable waiver provision to be included in plea agreements on a take-it, or leave-it basis; and, over time, those waiver provisions have become ever more onerous. As this case shows, today the Government even argues that the appeal waiver provisions bar a defendant from appealing an “illegal” sentence.

While many defendant’s challenged those waivers on numerous grounds, they were fighting an uphill battle. Fair or not, appeal waiver provisions provided the means to help to cut down on inmate appeals dramatically - a result that was widely applauded by both the courts and the Government.

Within a relatively short time, virtually all of the Circuits had endorsed the validity of such appeal waiver provisions - often with amazing docility. In almost lockstep fashion, the courts agreed with the Government’s contention that, since the right to appeal is not a constitutional right, a waiver of such rights is permissible so long as it is both “knowing” and “voluntary.”

True, a number of outspoken judges did express serious misgivings about the fairness - and even the constitutionality - of such waivers of appellate rights. One of the most memorable examples of such dissent came from Judge Robert Parker of Texas. In U.S. v. Melancon, 972 F.2d 566 (5th Cir. 1992), he criticized the "specious reasoning" that led to the widespread acceptance of such waivers, writing:

"As an initial matter, I do not think that a defendant can ever knowingly and intelligently waive, as part of a plea agreement, the right to appeal a sentence that has yet to be imposed at the time he or she enters into the plea agreement; such a 'waiver' is inherently uninformed and unintelligent." (id., at 571) . . . [E]ven even if I were convinced that the sort of futuristic waiver at issue in this case could be knowing and intelligent, I could not support it. Any systemic benefits that might inhere in this type waiver cannot overcome its extremely deleterious effects upon judicial and congressional integrity, and individual constitutional rights.” (Id., at 573).

Today, every Circuit has reached the conclusion that at least some form of appeal waivers are permissible. Recently, however, some of the courts have begun to reconsider their initial carte blanche approval of any and all appeal waiver provisions - particularly in light of the Government’s relentless efforts to push the boundaries of those provisions beyond logic and reason. The instant case is an example of such chutzpah. It is also an excellent summary of the current arguments for and against the widespread use of appeal waiver provisions.

In this case, the defendant pled guilty to one count of transporting a minor in interstate commerce for illegal sexual activity, in violation of 18 U.S.C. § 2423(a). Pursuant to the terms of his plea agreement, the defendant agreed to waive “all rights to appeal whatever sentence is imposed, including any issues that relate to the establishment of the Guideline range, reserving only the right to appeal from an upward or downward departure from the Guideline range that is established at sentencing.” The plea agreement further provided that the waiver covered all rights to contest the conviction or sentence, except for grounds of prosecutorial misconduct or ineffective assistance of counsel, in any post-conviction proceeding”, including any rights to challenge his sentence pursuant to 28 U.S.C. § 2255.

At sentencing, the district court (Judge Limbaugh of the E.D.Mo.) imposed, as part of the defendant’s sentence, five special conditions of supervised release that were recommended by the probation department. Among the five conditions were a provision that required the defendant to submit to a search “of his person, residence, office, or vehicle by a probation officer” at any time; and a provision that prohibited the defendant from purchasing or maintaining “a post office box or other type of private mailbox without written approval of the probation officer.”

In spite of the waiver in his plea agreement, the defendant sought to challenge all five special conditions on the grounds that they constituted an “illegal” sentence, and that the waiver did not bar him from bringing this appeal. He claimed the conditions of probation were illegal because they did not bear a reasonable relationship either to the nature and circumstances of the offense of conviction or to the history and characteristics of the defendant, as required by 18 U.S.C. § 3583(c) and U.S.S.G. § 5D1.3(b).

The Government moved to dismiss the defendant’s appeal, arguing that he had waived all rights to appeal, except on the limited grounds of prosecutorial misconduct or ineffective assistance of counsel. The Government even went on to contend that the appeal waiver provisions were valid and applied “regardless of whether the conditions imposed render [the sentence] illegal.” (Sic!) (Emphasis added).

A panel from the Eighth Circuit originally remanded this case back to the district court to reconsider the five special conditions of supervised release; but then a majority of judges decided to rehear the case en banc. That lead to three distinctly separate approaches to the validity of the broad appellate waiver provisions before the Court.

The Majority View

The majority held that although a defendant “generally can waive appellate rights, such a waiver is subject to certain limitations.” Expressly following the approach taken by the Second Circuit in U.S. v. Hernandez, 242 F.3d 110 (2nd Cir. 2001), it held that “plea agreements will be strictly construed and any ambiguities in these agreements will be read against the Government and in favor of a defendant’s appellate rights.”

From that starting point, the majority went on to carve out both a general “miscarriage of justice” exception and an “illegal sentence” exception to the general rule in favor of appellate waiver provisions. The majority first wrote: “Assuming that a waiver has been entered into knowingly and voluntarily, we will still refuse to enforce an otherwise valid waiver if to do so would result in a miscarriage of justice.” [The framework for the “miscarriage of justice” exception was first established and expounded upon by the First Circuit, in U.S. v. Teeter, 257 F.3d 14, 21 (1st Cir. 2001) (P&J, 08/27/01), where the court acknowledged that it was not “unsympathetic” to the argument that “at the time the defendant signs the plea agreement, she does not have a clue as to the nature and magnitude of the sentencing errors that may be visited upon her.”]

Secondly, the majority also specifically held that “a defendant has the right to appeal an illegal sentence, even though there exists an otherwise valid waiver.” In fashioning that exception, the majority explained that “a sentence is illegal when it is not authorized by law; for example, when the sentence is ‘in excess of a statutory provision or otherwise contrary to the applicable statute’.” The majority, however, also took great pains to note that “the illegal sentence exception” to the general enforceability of an appeal waiver “is an extremely narrow exception. Any sentence imposed within the statutory range is not subject to appeal. Specifically, an allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion is not subject to appeal in the face of a valid appeal waiver.”

Applying those general principles to the facts of this case, the majority then proceeded to snatch victory away from the defendant. First, it concluded that the challenged special conditions weren’t really illegal because, notwithstanding the limitations of § 3583(c), a sentencing court has broad discretion “to impose conditions the court considers to be appropriate in setting the term of supervised release,” under the provisions of 18 U.S.C. § 3583(d). Thus, it concluded that this case wasn’t really about illegal conditions but about an abuse of discretion. Accordingly, the majority reasoned that it could only consider the defendant’s appeal if its failure to do so would constitute a miscarriage of justice.

The majority then concluded that the miscarriage of justice exception did not apply to this case because the imposition of the special conditions of supervised release were not “based on some constitutionally impermissible factor, such as race.” Thus, the majority concluded that it was powerless to intervene, and it dismissed the defendant’s appeal.

The Concurring Judges View

Four of the judges concurred in the result achieved by the majority - but strongly disagreed with much of its logic and many of its premises. Those four judges were in favor of a strict blanket prohibition against any review of this appeal due to the language contained in the appeal waiver. In their minds, there was also no legal or logical justification for carving out a “miscarriage of justice” exception and an “illegal sentence” exception to the rule upholding appeal waivers. “Once a court is convinced that a defendant is knowingly and voluntarily making a waiver, I believe that its function is complete,” wrote Judge Morris S. Arnold, who authored the concurring opinion.

But he did not stop there. He sharply criticized the majority for making “its distinction between sentences that violate the sentencing guidelines and sentences that are ‘illegal.’ A sentence that violates a guidelines is no less illegal in kind than a sentence that violates a statute. . . . The distinction is untenable, and the court makes no attempt to defend it. The court simply announces a rule.”

Finally, he argued that “[n]ot only does the court lack the authority to restrict plea agreements in the way that it seeks to, there are good reasons not to do so, not the least of which is that the restriction works to the detriment of defendants. One of the few things that a criminal defendant has to trade with his or her accuser is the right to appeal, and so the court, far from improving the lot of criminal defendants with its interventionist rule, actually deprives them of their property and the wherewithal with which to bargain. As is often the case with paternalistic policies, moreover, there are other inefficiencies created as well, including, as this case demonstrates, the judicial energy that must now be devoted to deciding whether a sentence is a ‘miscarriage of justice’ (or ‘illegal’) within the meaning of the distinction that the court draws here. Furthermore, the utility of plea agreements is diminished by today's decision, because courts will frequently be driven to decide the merits of an appeal to avoid being entangled in the question of whether an ‘illegal sentence’ is involved in an appeal waiver, in much the same way that complicated procedural-default rules have operated in the law of habeas corpus. As a result, the government's enthusiasm for appeal waivers will wane, further reducing the opportunities of criminal defendants to enter into advantageous bargains.”

The Dissenting Judges View

Two of the judges dissented from the outcome reached by the majority, arguing that the case should have been remanded to the district court for further proceedings principally because the district court had abdicated its responsibility of making the determinations needed to support to imposition of the five special conditions at issue in this case by deferring totally to the wishes of the probation department.

Writing for the dissenters, Judge Bright explained the rather remarkable origins of the five challenged special conditions. “The conditions of Mr. Andis' release were not fine tuned to his crime or his individual situation. In fact, at sentencing the district court was exceedingly candid in explaining the process by which the conditions were imposed. ‘As I understand it, this is - these are standard conditions that the probation officers recommend to the Court in this building for this type of offense. And at this stage, I know of no judge who has refused to impose these restrictions.’ Based on this statement, it is clear that the court accepted certain standard conditions that appear to have little or no relationship to the defendant.”

Judge Bright then chided the district court, stating: “ A district court can use nonjudicial officers, such as probation officers, to support judicial functions, ‘as long as a judicial officer retains and exercises ultimate responsibility.’ The practice of district courts should not be to adopt the recommendations of the probation report without making specific and reasoned determinations regarding the applicability of the special conditions of release.” (Internal citations omitted).

The dissenting judges also strongly endorsed the need for a “miscarriage of justice” exception to waivers of appellate rights because “such waivers are meant to bring finality to proceedings conducted in the ordinary course, not to leave acquiescent defendants totally exposed to future vagaries (however harsh, unfair, or unenforceable.)

U.S. v. $242,484.00, No. 01-16485 (11th Cir. 06/30/2003) (Judge Edmondson)

In U.S. v. $242,484.00, 318 F.3d 1240 (11th Cir. 2003) (P&J, 03/10/2003), the Eleventh Circuit reversed a forfeiture order that had been granted under 21 U.S.C. § 881(a)(6) on the grounds that the Government had failed to prove any link to illegal drugs. Despite a lot of suspicious evidence and unanswered questions by the claimant about the source of funds that had been seized, the Court concluded that there was a “complete lack of evidence connecting the seized money directly to illegal narcotics.”

The Government quickly moved for a rehearing; and, on the second try, one of the judges (Judge Anderson) capitulated and agreed that the Government had adduced “sufficient evidence to satisfy the requisite probable cause standard, a reasonable ground for believing that the currency was substantially related to a drug crime” - although he never explained what led him to change his mind.

The majority of the panel, however, again concluded that the Government had failed to prove its case; and, although it replaced its original decision, it again concluded that the granting of the forfeiture order was erroneous, and it dismissed the Government’s petition for a rehearing.

There were a number of items of particular significance about the majority’s decision. First, the majority again affirmed that “it is not illegal” to carry a large amount of cash. “A large amount of cash does not - alone -satisfy the government's burden to show probable cause. In addition, to support a forfeiture under § 881, there must be a link to criminal activity which must be a narcotics transaction.”

Second, the majority specifically stated that it had “looked at every published federal appellate decision discussing probable cause for forfeiture under § 881 and are unaware of a case concluding that the needed probable cause existed on a record like this one: a record this thin on facts connecting the pertinent property to an illegal drug transaction. The government seems to know of no such case either.” That prodigious (and probably rare) effort by an appellate court, adds great weight to this decision.

Third, the majority specifically declined the Government’s invitation “to redraw the probable cause line for forfeiture beyond the borders” of existing precedent. It commented that, if it complied with the Government’s request, “every seemingly Hispanic resident of Miami traveling with considerable cash back to their home by common carrier on a cheap cash ticket would have several strikes against them automatically . . . . The result would be to vest the executive branch of the government with tremendous discretionary power in dealing with people in South Florida when it comes to taking their property. We do not believe this approach was Congress' intent.”

Fourth, the majority went out of its way to attack one of the bedrock justifications supporting many of the Government’s frequent sorties against travelers with cash - namely that, because he or she was traveling from or to a drug “source city,” that must prove some connection with drugs. In response to that argument, the majority noted: “As the number of ‘source cities’ has increased, their value to our probable-cause analysis has decreased. Agent Johnson testified that, in addition to New York and Miami, Washington, D.C., Detroit, Chicago, San Antonio, Los Angeles, San Francisco, Seattle, Tacoma, and Tampa are all considered ‘source cities.’ Our review of other cases adds Boston, Cleveland, Dallas, El Paso, Phoenix, San Diego, Schenectady, Tucson, Wilmington (North Carolina), the whole state of California, and the entire ‘upper midwest’ to the list of locations that the DEA claims should increase our suspicion of a person's involvement with drug activity. At least one federal judge has asked whether all cities with international airports are ‘source cities.’ The more ‘travel between source cities’ comes to mean just ‘travel’ the less persuasive it becomes in the probable cause analysis.”

Finally, the majority specifically noted that the instant forfeiture proceeding began before the effective date of the recent Civil Asset Forfeiture Reform Act (CAFRA) (Pub.L. No. 106-185), which became effective on April 25, 2000. CAFRA, which was passed as a bill “to provide a more just and uniform procedure for Federal civil forfeitures,” placed the burden on the Government to establish, by a preponderance of the evidence (from the old standard of probable cause), that the seized assets were the fruit of a criminal activity - rather than forcing the assets’ owner to prove that they are not.

The majority observed that “in passing [CAFRA], Congress was concerned that the preexisting civil forfeiture procedures (the ones which govern this case) inadequately protected private property and allowed ‘numerous controversial seizures of property.’ We understand, of course, that pre-CAFRA law governs this appeal. Nevertheless, we are especially reluctant to broaden the case law to enlarge the circumstances that make property subject to forfeiture under § 881(a)(6) against the background of a Congress that was attempting to narrow its scope.”

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