Vol. 10, No. 25	Covering Cases Published in the Advance Sheets through June 23, 2003

Highlights of this Issue:

Protecting the Government and its Agents - Two Examples

• In Andrade, the Fifth Circuit rejected another attempt by the survivors of, and the estates of many of the Branch Davidians who died during, the FBI’s siege of their compound in Waco, TX in 1993 to collect damages from the Government. Judge Walter Smith of the W.D.Tex. had previously dismissed all of the plaintiffs’ claims under the Federal Tort Claims Act - essentially holding that the Government’s conduct was not negligent and that it fell within the “discretionary function exception” to the Government’s waiver of immunity. The plaintiffs then appealed, arguing that Judge Smith had been biased against them and that he should have recused himself from the case. In a case that highlights the high burden of proof that is required to justify the recusal of a judge, the panel rejected each of the 15 alleged instances of “extrajudicial” and “intrajudicial” bias claimed by the plaintiffs and found that, even if some of Judge Smith’s arguably fell within the deplorable range, none gave rise to the level required to establish bias or partiality on the part of Judge Smith.
  
  
• In the Capital Collateral Counsel case, the Eleventh Circuit reversed a lower court ruling that ordered the Department of Justice to make a Freedom of Information Act disclosure about Assistant U.S. Attorney Karen Cox. Ms. Cox was mildly sanctioned by the Justice Department (she received a two weeks suspension without pay) for manufacturing or accepting “a plan to employ [a] fictitious name” for a key Government witness in order to conceal potential credibility problems about that witness and “thereby further the prosecutorial goal of securing a conviction.” Showing a degree of solicitude for the privacy rights of Ms. Cox that is rarely, if ever, accorded to criminal defendants, the panel concluded that it just wouldn’t be fair to make public disclosure of the details of Ms. Cox’s misconduct.

Access to Presentence Reports in Prison

• In an unpublished decision, the Fourth Circuit concluded, in Pugh, that the district court had erred in ruling that the defendant/inmate had no rights under the Freedom of Information Act to obtain a copy of his presentence report while in prison - a ruling that represents the first successful challenge we have seen to the validity of the BOP’s recently enacted Program Statement No. 1351.05.

Guidelines

• In Mullings, the Second Circuit held that a non-custodial sentence, requiring the defendant to pay only a monetary fine, qualified as a sentence of 13 months of less for purposes of justifying a 12-level Guideline enhancement under U.S.S.G. § 2L1.2(b)(1)(B).

Pre-Sentence Bail

• In Chen, Judge Scheindlin of the S.D.N.Y. held that, notwithstanding the provisions of 18 U.S.C. § 3145, a district court may not overturn a pre-sentencing detention order based on “exceptional reasons.”

Notice to Subscribers: The next issue of P&J will be posted on July 31, 2003.

Andrade v. Chojnacki, No. 01-50154 (5th Cir. 07/14/2003) (Judge Jones)

Few episodes in the history of American law enforcement have raised a greater furor than the FBI’s 51-day stakeout and subsequent siege, on April 19, 1993, of the Branch Davidian compound near Waco, TX. The siege itself led to the fiery deaths of at least 86 men, women and children who were holed up in the compound. Bitter debates still exist about what really happened on that infamous day. One of the most provocative of the many reports about what transpired is “The Massacre of the Branch Davidians - A Study of Government Violations of Rights, Excessive Force and Coverup,” by Carol Moore, of the Committee for Waco Justice, which can be found on the Internet at www.shadeslanding.com/firearms/waco.massacre.html/.

Those events also led to four separate lawsuits that were tried before Judge Walter Smith of the W.D.Tex. One was the criminal prosecution of eleven surviving Davidians for their alleged participation in the deaths of four ATF agents - the event that triggered what this Court called “that shameful day in American law enforcement.” Two other lawsuits were civil proceedings. One was brought by an ATF undercover agent against fellow federal employees and a psychiatrist. The other was brought by Federal agents against a number of defendants including a reporter and a media organization, asserting that the defendants had caused their injuries by alerting the Davidians of the impending raid.

The fourth lawsuit (the instant case) arose when the survivors and the estates of many of those killed at Waco sued the Government for damages under the Federal Tort Claims Act. After the case was assigned to Judge Smith, the plaintiffs filed several motions to have him recused, pursuant to the provisions of 28 U.S.C. § 455(a). Under § 455, a party may request the recusal of a judge if, among other reasons, “his impartiality might reasonably be questioned.”

Judge Smith rejected the recusal motions and the case proceeded to trial. Following a month long trial, Judge Smith dismissed all of the plaintiff’s claims in their entirety. (See, Andrade v. Chojnacki, 65 F.Supp.2d 431 (W.D.Tex. 1999) and 116 F.Supp.2d 778 (W.D.Tex. 2000)). In this appeal from that ruling, the Fifth Circuit described the reasons for Judge Smith’s ruling as follows:

“The [district] court found that the government's planning of the siege - i.e. the decisions to use tear gas against the Davidians; to insert the tear gas by means of military tanks; and to omit specific planning for the possibility that a fire would erupt - is within the ‘discretionary function exception’ to the government's waiver of immunity. The court also found that the use of tear gas was not negligent. Further, even if the United States was negligent by causing damage to the compound before the fires broke out, thus either blocking escape routes or enabling the fires to speed faster, such negligence did not legally cause the plaintiffs' injuries because some of the Davidians started the fires. The court found that the FBI's decision not initially to allow fire trucks on the property was reasonable because of the risk of injury or death to firefighters who might encounter hostile gunfire from the Davidian compound.”

On appeal, the plaintiffs raised a single issue. Citing 15 specific examples of what they called clear judicial bias and prejudice, they argued that Judge Smith’s comments on and off the bench showed a “deep-seated antagonism” against the Branch Davidians; and that his relationships with the defendants and defense counsel led to many unfair “preconceptions” about the case.

Amongst the 15 examples cited was a newspaper report which stated that Judge Smith had been extremely upset with the Department of Justice’s own investigation into the role of AUSA William Johnston for allegedly withholding evidence from the defendant Davidians during their criminal trial. The newspaper account said that Smith and Johnston were long time friends; and that Smith had described the DOJ investigation as a “witch hunt.”

The plaintiffs also alleged that some of Judge Smith’s ex parte public comments during the trial violated various Canons of the Code of Judicial Conduct. For example, they cited an article published in the Dallas Morning News about two weeks before Judge Smith ruled on the plaintiffs’ second motion for recusal. In that article, Judge Smith was quoted as having told a reporter that the Davidians broke the law by resisting a Federal search and by refusing to surrender during the 51-day siege. He then volunteered that those violations “probably trumped plaintiffs’ arguments that government agents acted negligently in efforts to end the standoff.” The same article also quoted Judge Smith as having said that the Government’s surveillance tapes would “blow” the plaintiffs “out of the pond.”

In addition to those ex parte public comments, the plaintiffs argued that many of Judge Smith’s comments during the trial at issue or in some of the related proceedings showed that he was incapable of making a fair and impartial judgment in the instant case. The plaintiffs noted, for example, that, at one point in the instant case, the plaintiffs had attempted to introduce the deposition testimony of one Davidian, Livingstone Fagan, who had been tried on criminal charges before Judge Smith but was acquitted. In an off-the-record bench conference, Judge Smith referred to Fagan as a “crazy, murdering son-of-a-bitch.” Similarly, when the plaintiff’s attempted to introduce expert-prepared transcripts of the Government’s surveillance tapes, Judge Smith referred to those transcripts as “bullcrap.”

Finally. the plaintiffs pointed to evidence that showed that Judge Smith had a deep-seated conviction that it was the Davidians - and not the FBI - who set the fire that caused all the deaths - a belief they argued that necessarily impacted Judge Smith’s ruling in the instant case.

In response to those arguments, the Fifth Circuit concluded that the plaintiffs’ allegations “do not reflect conduct that would cause a reasonable person to question Judge Smith’s impartiality.” In large part, that conclusion was premised on the Supreme Court’s ruling in Liteky v. U.S., 510 U.S. 540 (1994) - the decision by Justice Scalia that redefined the burdens of proof required to prevail on a motion to recuse a Federal judge pursuant to the provisions of 28 U.S.C. § 455(a).

In its detailed review of the law governing recusal, the Fifth Circuit noted that, since Liteky, “the origin of a judge’s alleged bias is of critical importance.” (Emphasis added). The Court explained:

“In 1994, the Supreme Court applied a common-law doctrine commonly called the ‘extrajudicial source rule’ to the interpretation of § 455. As articulated by the Supreme Court, this rule more or less divides events occurring or opinions expressed in the course of judicial proceedings from those that take place outside of the litigation context and holds that the former rarely require recusal.”

Citing Liteky, the Court continued: “First, judicial rulings alone almost never constitute a valid basis for a bias or a partiality motion. . . . Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” (Liteky, id., at 555).

In fact, Liteky went on to hold that “expressions of impatience, dissatisfaction, annoyance and even anger” do not establish bias or partiality.” (Liteky, id., at 555-56).

Turning to the 15 examples of bias and prejudice cited by the plaintiffs, the Court concluded that roughly half fell within the type of “intrajudicial bias” that Liteky holds almost never qualify as valid grounds for recusal. As such they merely “represent the expression of ‘opinions formed . . . on the basis of facts . . . or events occurring in the course of the current proceedings, or of prior proceedings,’ and are the types of opinions/expressions that Liteky holds are nearly exempt from causing recusal.”

Choosing its words carefully, the Court did acknowledge that intrajudicial bias could “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” However, it quickly excused Judge Smith’s “ill-tempered references to Fagan” on the grounds that even if they “arguably fell within that deplorable range,” “those brief comments in the course of a decade of litigation refer only to one witness, not to the Davidians or [plaintiffs] in general or to the merits of their case.”

The Court also held that the seven examples of extrajudicial bias cited by the plaintiffs did not rise to the level of proof required to establish that Judge Smith had been biased and prejudiced against the plaintiffs - largely because the plaintiffs evidence was “based exclusively on the fact of publication of his remarks, without context and without verification of their accuracy. It is hardly clear whether Judge Smith actually gave an interview or spoke off the cuff, and whether his comments were made in chambers or on the bench, ex parte or to a group of listeners, yet Appellants have jumped to the conclusion that he violated the judicial Code of Conduct in several ways by giving an interview. But there is no way of knowing what generated the article, and it represents multilevel hearsay.”

Capital Collateral Counsel v. Dept. Of Justice, 331 F.3d 799 (11th Cir. 2003) (Judge Black)

This case involves a Freedom of Information Act (FOIA) request for information concerning disciplinary sanctions imposed on a former Assistant U.S. Attorney, one Karen Cox, for acts of prosecutorial misconduct. Ms. Cox had been the prosecutor in the case entitled U.S. v. Sterba, 22 F.Supp.2d 1333 (M.D.Fla. 1998) (P&J, 12/21/98). That case involved the alleged solicitation over the Internet of a minor for purposes of an unlawful sexual encounter. At trial, Ms. Cox called a witness identified as “Gracie Greggs.” As explained by the panel in the instant decision:

“In fact, ‘Gracie Greggs’ was a pseudonym for use over the internet; the witness' real name was Adria Jackson. Cox failed to inform the court Gracie Greggs was not the witness' true name, though that information subsequently came to light. The court concluded that Cox had either manufactured or accepted a plan to employ the fictitious name for Jackson to conceal Jackson's potential credibility problems and thereby further the prosecutorial goal of securing a conviction. The court therefore dismissed the indictment.” (Id., at 801).

Subsequently Ms. Cox’s misconduct in the Sterba case was referred to the Department of Justice’s (DOJ) Office of Professional Responsibility (OPR) - a section of the DOJ that has often been criticized for whitewashing nearly every investigation it has ever undertaken. True to form, after Ms. Cox’s misconduct was investigated, she received a two week suspension without pay - a rather mild penalty for having played with the evidence to secure a conviction! [To put that punishment in context, the Florida Supreme Court was not nearly so forgiving: when called upon to punish Ms. Cox for the same misconduct, it imposed a one-year suspension on Ms. Cox (see, Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001)) - after which she resigned from the U.S. Attorney’s Office.]

The plaintiff in the instant case, the Florida Office of the Capital Collateral Counsel (CCC), is a state agency charged with the statutory obligation of representing death-sentenced inmates in their state and Federal collateral litigation. CCC was representing a death row inmate in an unrelated case. That inmate had also been prosecuted by Ms. Cox; and CCC was seeking any information that might be helpful to its case. Thus, it filed a FOIA request for copies of all records maintained by the DOJ concerning the disciplinary proceedings against Ms. Cox. Judge Whittemore of the M.D.Fla. ordered the DOJ to release those documents to CCC pursuant to the provisions of the FOIA, 5 U.S.C. § 552.

The DOJ then appealed the release of two of those documents, namely Document 1, which was a transcript of Ms. Cox’s informal oral reply to the charges against her; and Document 10, which was a copy of the DOJ’s final decision letter (in which it imposed the two-week suspension). The DOJ argued that both of those documents were covered by FOIA Exemption 6, which excludes from FOIA requests “personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. § 552(b)(6)).

On appeal, the Eleventh Circuit agreed that the two documents in question fell within the ambit of Exemption 6 and did not have to be disclosed to CCC. Although the Court agreed that the purpose of the FOIA is “to encourage public disclosure so citizens may understand what their government is doing,” it concluded that the information contained in the two documents at issue went too far.

The Court explained that it was “apparent from [its] own review [that] documents 1 and 10 reveal Cox’s candid disclosures of her private thoughts and feelings concerning her misconduct in Sterba and its effect on her, her family, and her career. . . . [T]he disclosure of the materials in documents 1 and 10 would constitute an invasion of Cox’s privacy that is excessively disproportionate to the public interest at stake and is therefore clearly unwarranted. Documents 1 and 10 are therefore exempt from disclosure under FOIA exemption 6.”

For the record, we note that the DOJ’s compassionate concern about the privacy rights of a former AUSA is in sharp contrast with the practices it normally employs when dealing with criminal defendants of less fortunate origin. Compare, for example, the efforts of the DOJ in this case to keep Ms. Cox’s misdeeds secret - even after she was found guilty - with the DOJ’s general approach of publicizing as many lurid details as possible about criminal defendants - through tactics such as staged “perp walks” and prime-time news press conferences - long before the defendant has even had his day in court.

In Brief

Feeney Amendment: U.S. v. Aguilar-Lopez, 329 F.3d 960 (8th Cir. 2003) - Here the Court affirmed an upward departure at sentencing based on the district court’s conclusion that the defendant’s criminal history category did not adequately represent the seriousness of his past criminal conduct. Although the departure was imposed before the effective date of the Feeney Amendment, the Court made reference to that legislation and observed that the written “statement of specific reasons” given by the district in this case justifying its upward departure was the type now required to be given by district courts for all departures under the Guidelines - “whether upward or downward.”

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