Vol. 10, No. 24	Covering Cases Published in the Advance Sheets through June 16, 2003

Highlights of this Issue:

Guidelines

• As a preview of what can be expected from the coming onslaught of cases dealing with the Feeney Amendment, the Eighth Circuit, in Dyck, reversed a series of sentence adjustments and downward departures that had been ordered by the district court. The Court’s inordinately detailed reexamination of every factor considered by the district court confirms the consensus view that trial courts will have very little discretion left when it comes to sentencing under the Federal Sentencing Guidelines.
  
  
• Both the Eighth Circuit and Judge Adelman of the E.D.Wisc. addressed the rather amorphous concept of an alien’s “cultural assimilation” to the United States as a basis for a downward departure at sentencing. In Aguilar-Portillo, the Eighth Circuit held that cultural assimilation “simply has no role in sentences for drug crimes.” In Martinez-Alvarez, Judge Adelman presented a comprehensive analysis of the cultural assimilation departure and granted such a departure to an alien facing his second deportation because of his long0standing ties to the U.S. and the absence of any ties to Mexico.

The Drug Law Schoolyard Prohibition

• In Migi, a panel from the Ninth Circuit adopted a sweeping and expansive definition of the term “playground” as used in the schoolyard drug laws, by holding that those provisions apply whenever one sells drugs near recreational facilities that offer “games, sports and hobbies” - whether or not there are any schools nearby. Because the schoolyard drug laws double the normal punishment for drug dealing, the decision will probably lead to a dramatic expansion of cases in which that statute is charged; and it could conceivably be used on persons arrested near places such as New York’s Central Park or almost any major golf or tennis tournament.

Prison Issues

• In the Para-Professional Law Clinic case, the Third Circuit said that it could not stop prison officials from shutting down an inmate-run law clinic at Pennsylvania’s largest maximum security prison, but, in an unusual aside, the panel strongly “encouraged” prison officials to keep it open.

Anti-Terrorism

• In Hamdi, by a vote of 8 to 4, the Court of Appeals from the Fourth Circuit upheld the right of the President to designate a United States citizen as an “enemy combatant” and to detain him indefinitely, without access to a lawyer. While this decision, denying an en banc rehearing of a panel’s earlier ruling, did not generate a majority opinion, it did generate several sharply worded concurring and dissenting opinions that showed the intensity of the debate that this case has created. In one dissent, Judge Motz said that panel’s earlier ruling “marks the first time that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the executive’s designation of that citizen as an enemy combatant, without testing the accuracy of the designation.”

U.S. v. Migi, 329 F.3d 1085 (9th Cir. 2003) (Judge T.G. Nelson)

The defendant in this case appealed his conviction and sentence under 21 U.S.C. § 860 for selling drugs within 1000 feet of a playground, which subjected him to “twice the maximum punishment authorized by” 21 U.S.C. § 841(b). The defendant’s argument was quite simple: he noted that § 860 was designed to prohibit the sale of drugs “in or near schools and colleges,” and the argued that the park near where he was arrested did not meet the statutory definition of “playground” as set forth in § 860(e)(1).

For purposes of that statute, the term “playground” means “any outdoor facility . . . intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards.”

The defendant argued that the park near where he was arrested contained only one of the type of “apparatus” specified in the statute - namely a swingset. The district court disagreed. It noted that the park also contained a basketball court, a softball field, and a skating rink - and it concluded that they were also “apparatus intended for the use of children” within the meaning of the statute.

On appeal, the Ninth Circuit agreed that the area in which the defendant sold drugs was indeed a “playground,” and that his sentence was therefore properly enhanced. With sweeping language, it concluded that all forms of games, sports and hobbies qualified as the types of recreational “apparatus” defined in the statute - a ruling that will probably inspire the Government to seek the “schoolyard” penalties whenever someone is arrested for drugs at concerts or public events in places like Central Park, or at golf, tennis and beach clubs that also offer a few hobbies or games for children, and even at remote national parks with similar amenities.

The defendant argued that the Court should apply the ejusdem generis principle in interpreting § 860(e)(1), because the list of examples of “apparatus” as used in the statute included only items on which small children play. In response, the Court agreed that ejusdem generis generally requires that “when a general word or phrase follows a list of specific . . . things, the general word or phrase will be interpreted to include only persons of things of the same type as those listed.” However, it then concluded that the principle of ejusdem generis did not apply in this case first because “the statute’s plain meaning is apparent” and second because the use of the phrase “including, but not limited to” “mitigates the sometimes unfortunate results of rigid application of the ejusdem generis rule.”

Para-Professional Law Clinic v. Beard, No. 02-2788 (3rd Cir. 07/01/2003) (Judge Barry)

The question before the Court is this case was whether to continue in effect an injunction that was ordered by Judge Lord in 1987 which permanently enjoined prison officials from closing an inmate-run law clinic at Pennsylvania’s largest maximum security prison at Graterford. (See, U.S. ex rel. Para-Professional Law Clinic v. Kane, 656 F.Supp. 1099 (E.D.Pa. 1987)). The plaintiffs - the Clinic and 22 inmates - conceded that their rights were not currently being violated; but they “predicted” that if the injunction were lifted, the defendant state officials would immediately proceed to abolish the Clinic.

In ruling that it was powerless to order the continuation of the injunction, Judge Barry, writing for the Court, explained: “A prediction, however, is not enough to forestall the termination of the injunction because the defendants' future plans, if plans they be, do not constitute a current and ongoing violation of the inmates' rights as required by the [prospective relief provisions of the] Prison Litigation Reform Act of 1995 (‘PLRA’).”

However, after reciting the law, Judge Barry then wrote: “We encourage defendants in the strongest possible terms to reconsider any plan they may have to close the Clinic” among other reasons because “the record shows that Graterford’s two law libraries are chronically under-staffed and intermittently subject to closure” and that the services provided by the Clinic “supplement the otherwise inadequate and unreliable services provided by Graterford itself.”

She therefore warned: “If the Clinic is closed and that closure serves to adversely affect the prisoners' constitutional right of access to the courts, this would likely cause more litigation and the intervention, yet again, of the federal courts. We encourage the defendants to bear this in mind as they weigh their options going forward.”

Hamdi v. Rumsfeld, No. 02-7338 (4th Cir. 07/09/03) (En banc) (Per Curiam)

Here, by a vote of 8 to 4, the active judges from the Fourth Circuit voted not to rehear en banc a panel’s earlier ruling that Yasser Esam Hamdi, a U.S. citizen who was designated by the President as an "enemy combatant," can be jailed indefinitely, without charges being filed against him and without access to a lawyer. (See, Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) (P&J, 12/23/02)).

The facts of this case, as explained by Judge Motz, in her dissent, were as follows: “For more than a year, a United States citizen, Yasser Esam Hamdi, has been labeled an enemy combatant and held in solitary confinement in a Norfolk, Virginia naval brig. He has not been charged with a crime, let alone convicted of one. The Executive will not state when, if ever, he will be released. Nor has the Executive allowed Hamdi to appear in court, consult with counsel, or communicate in any way with the outside world.

“Precedent dictates that we must tolerate some abrogation of constitutional rights if Hamdi is, in fact, an enemy combatant. However, a panel of this court has held that a short hearsay declaration by Mr. Michael Mobbs - an unelected, otherwise unknown, government ‘advisor, - ‘standing alone’ (subject to no challenge by Hamdi or court-ordered verification) is ‘sufficient as a matter of law to allow meaningful judicial review’ and approval of the Executive's designation of Hamdi as an enemy combatant. I cannot agree.

“To justify forfeiture of a citizen's constitutional rights, the Executive must establish enemy combatant status with more than hearsay. In holding to the contrary, the panel allows appropriate deference to the Executive's authority in matters of war to eradicate the Judiciary's own Constitutional role: protection of the individual freedoms guaranteed all citizens. With respect, I believe the panel has seriously erred, and I dissent from the court's refusal to rehear this case en banc.

Judge Motz then charged that the decision "marks the first time in our history that a federal court has approved the elimination of protections afforded a citizen by the Constitution solely on the basis of the Executive's designation of that citizen as an enemy combatant. Neither the Constitution nor controlling precedent sanction this holding."

She concluded by stating: “The Executive's treatment of Hamdi threatens the freedoms we all cherish, but the panel's opinion sustaining the Executive's action constitutes an even greater and ‘more subtle blow to liberty.’ For although the incommunicado imprisonment of Hamdi will hopefully terminate some day, the panel opinion rationalizing this imprisonment will live on. As Justice Jackson warned, when the Executive ‘oversteps the bounds of constitutionality, . . . it is an incident, but when a court ‘reviews and approves, that passing incident becomes the doctrine’.” (Citing Korematsu v. U.S., 323 U.S. 214, 245-46 (1944) (Jackson, J., dissenting).

As the Judges matched wits in their attempts to support their philosophically divergent views, the tone of their opinions often reflected a sense of bitterness - if not nastiness - that is rarely seen in appellate decisions. For example, in another dissent, Judge Luttig charged that the panel, as a result of "decisional paralysis," had "retreated" from its constitutional duty to decide this case based upon the facts presented and, instead, had relied on factors that were “transparently indefensible.” On the other side, both Judges Wilkinson and Traxler, in separate concurring opinions, accused Judge Luttig of making serious “misrepresentations.”

In Brief

911 Calls: Thacker v. City of Columbus, 328 F.3d 244 (6th Cir. 2003) - Here, in a civil rights suit for damages, the Court held that the plaintiffs could not show a constitutional violation occurred when city law enforcement and paramedics came to their home in response to a 911 call reporting an injury, and ultimately made a domestic violence arrest.; U.S. v. Alexander, No. 02-3005 (D.C. Cir. 06/13/2003) - Here the Court held that the district court did not abuse its discretion in admitting a 911 call into evidence as an excited utterance, and statements in that call did not constitute "other acts" evidence under Fed. R. Evid. 404(b).

Guidelines: U.S. v. Long, 328 F.3d 655 (D.C. Cir. 2003) - Here the Court rejected a claim that the imposition of an eight level increase in the defendant’s base offense level based on acquitted conduct required a finding by clear and convincing evidence. It its decision, the Court reviewed the law on that topic in the other Circuits, and noted that, to date, only two circuits (the Third and the Ninth) have required a standard of proof greater than a mere preponderance of the evidence - and that only in cases of “extreme sentencing enhancements”; U.S. v. Yager, 328 F.3d 1008 (8th Cir. 2003) - Here the Court held that a downward adjustment for minor participation, pursuant to U.S.S.G. § 3B1.2(b), is permissible even though the defendant was the only participant charged in the drug crime, provided the defendant shows by a preponderance of the evidence that the relevant conduct involved more than one participant and that her culpability was relatively minor compared to the other participants; U.S. v. Rosado, 254 F.Supp.2d 316 (S.D.N.Y. 2003) - Here the Court held that Guideline Amendment 602, which prohibits sentencing departures based on post-sentence rehabilitation and which became effective Nov. 1, 2000, does not preclude departures based on extraordinary post-offense but pre-sentencing rehabilitation.

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