Vol. 10, No. 52	Covering Cases Published in the Advance Sheets through Dec. 29, 2003

The Feeney Amendment - The Rumblings of Discontent Are Growing Louder

• In Mendoza, an aroused Judge Tevrizian of the C.D.Cal. declared a portion of the Feeney Amendment unconstitutional on the grounds that the provisions of that law requiring that a report be given to Congress of any downward departure granted by a district judge (other than a departure for substantial assistance to authorities) constitutes “an unwarranted interference with judicial independence and a clear violation of the separation of powers set forth in the United States Constitution.”
  
  
• In Dyck, Judge Webb of the D.N.D. took the occasion of a resentencing, following a reversal of a downward departure and a remand from the Eighth Circuit, to issue a powerful and impassioned “dissent” in which he argued that there was “no just reason” for the sentence he was ordered to impose; and to complain that the lack of individualized sentencing under the Guidelines and the Feeney Amendment violates the due process rights of criminal defendants.

Guidelines

• The Salim case from the S.D.N.Y. is noted for Judge Batts’ lengthy and comprehensive discourse on the meaning of “the Federal crime of terrorism” for purposes of the terrorism sentencing enhancement contained in U.S.S.G. § 3A1.4. In this case, while she agreed that the defendant’s attack on a prison guard was enumerated in 18 U.S.C. § 2332b(g)(5) as a “federal crime of terrorism,” she also concluded that the § 3A1.4 enhancement did not apply because the crime for which the defendant was being sentenced did not involve conduct transcending national borders.
  
  
• In the Sealed Case decision, the D.C. Circuit joined with the First, Seventh and Eighth Circuits in holding that a sentencing court may consider a defendant’s refusal to implicate a co-conspirator as a ground for denying an “acceptance of responsibility” downward adjustment at sentencing - a position on which both the Second and Ninth Circuits disagree.
  
  
• In Robertson, the Tenth Circuit reversed the district court and affirmed the use of a sentencing enhancement in a child pornography case based on a reading of the Guidelines that the dissent charged ignored the language of the accompanying commentary in order to achieve a more severe punishment. In dissent, Judge Brorby acknowledged that he had no doubt that Congress intended stiff punishment for sex offenders who prey on children. But, he then concluded, that Congressional intent does not give the courts the “license to rewrite the guidelines . . . [to] accord with their own conceptions of prudent public policy.”

U.S. v. Mendoza, CR. 03-730 (DT) (C.D. Cal. 01/12/04) (Judge Tevrizian)

In a decision that bristles with judicial peak, Judge Tevrizian lashed out at those who have engaged in the rash of recent attacks on judicial independence - including legislation that restricts judicial review of habeas corpus petitions, “sentencing guidelines that include mandatory minimums that severely limit judicial discretion, the Prison Litigation Reform Act of 1995 and most recently the Feeney Amendment to the Protect Act.”

Calling such steps an “unwarranted interference” with the judicial branch that is both misdirected and improper, he wrote that “[b]oth individual federal and state judges have increasingly been the targets of ‘vitriolic ad hominem attacks’ for their individual decisions in individual cases. More often than not, the basis for such attacks is not a reasonable conflict with the individual judge’s application of the law, but a frustration that the judge did adhere to the law to the detriment of special interests. Thus, the constructionist judge is lambasted as an activist judge, so ‘ideologically driven that he or she couldn’t be trusted to state the law in a fair and neutral way.’ The moral judge is written-off as a ‘right-wing ideologue’ or ‘left-wing ideologue’ with ‘an agenda’.”

In the instant case, the defendant, who pled guilty to a number of counts of bank robbery, filed a motion “to declare the Feeney Amendment and Sentencing Guidelines unconstitutional and inapplicable.” He argued, principally, that various aspects of the Feeney Amendment violate the separation of powers requirement of the U.S. Constitution.

While Judge Tevrizian upheld, as constitutionally valid, many of the provisions of the Feeney Amendment, he took a different position with respect to some of the “reporting requirement” provisions contained in § 401(l) (1), (2) and (3) (Report by Attorney General). Those provisions require the Attorney General to prepare a report to Congress of any downward departure, other than a departure for substantial assistance, setting forth the case, the fact involved, the identity of the district court judge, the stated reasons for the downward departure, and the parties’ respective positions with respect to the downward departure.

Judge Tevrizian agreed with the defendant’s contention that the provisions of § 401(l) offend judicial independence “by allowing individual judges to be singled-out, threatened, intimidated and targeted.” He went on to conclude that § 401(l) “chills and stifles judicial independence to the extent that it is constitutionally prohibited. The chilling effect resulting from such reporting requirements is sufficient to violate the separation of powers limitations of the United States Constitution.” He then continued:

“The specific provisions of the statute in question do not on its face give, or purport to give, either the Executive of Legislative branch any direct cohesive power over the Judiciary for their judicial acts, but the threat, real or apparent, is blatantly present. There is no legitimate purpose served by reporting individual judges’s performance to Congress. Congress does not have any direct oversight of the Judiciary. Simply put, the specific legal provision in question is a power grab by one branch of government over another branch, which is prohibited by the Constitution. . . .

“Practically and in reality, if a sentencing judge exceeds his or her authority and/or discretion in imposing a sentence under the Sentencing Guidelines by what is considered an unwarranted departure, the Government always had, and continues to have, the right to appeal to a higher court.”

On the basis of that reasoning, Judge Tevrizian found § 401(l) to be “an unwarranted interference with judicial independence and a clear violation of the separation of powers as set forth in the United States Constitution.” We assume that the Department of Justice will now dutifully report Judge Tevrizian to Congress.

U.S. v. Salim, 287 F.Supp.2d 250 (S.D.N.Y. 2003) (Judge Batts)

Since 9/11, the Government has chosen to prosecute a growing (but unknown) number of alleged terrorists under a shroud of total secrecy; and, for that reason, it is impossible even to speculate on the number of cases in which the Government has sought to impose the terrorism enhancement permitted by U.S.S.G. § 3A1.4. That provision, initially enacted in 1996, authorizes a twelve-level, victim-related sentencing enhancement for defendants who have allegedly engaged in the “federal crime of terrorism.”

Perhaps concerned about the Government’s seemingly indiscriminate use of the terrorism enhancement contained in § 3A1.4, we are beginning to see increased judicial focus on the Government’s increasingly bold and sweeping use of that enhancement. (See, e.g., U.S. v. Graham, 275 F.3d 490 (6th Cir. 2002); U.S. v. Meskini, 319 F.3d 88 (2nd Cir. 2003); and U.S. v. Arnaout, 282 F.Supp.2d 838 (N.D.Ill. 2003) (P&J, 11/24/03)).

The instant decision, a detailed 288-page guide to, and analysis of, the history, purpose and scope of the terrorism enhancement, is required reading for any defense attorney facing a claim that his client’s offense is covered by § 3A1.4. Read in conjunction with Judge Avern Cohn’s thoughtful dissent in Graham, and Judge Conlon’s perceptive analysis in Arnaout, these three cases also cast serious doubt on the Government’s recent efforts to use § 3A1.4 as a catchall provision to increase sentences whenever a whiff of terrorism can be alleged.

Section 3A1.4 provides as follows:

“(a) If the offense is a felony that involved, or was intended to promote, a federal crime of terrorism, increase by 12 levels; but if the resulting offense is less than level 32, increase to level 32.

“(b) In each such case, the defendant’s criminal history category from Chapter Four (Criminal History and Criminal Livelihood) shall be Category VI.” (Emphasis added).

The Commentary to § 3A1.4 directs that “Federal crime of terrorism is defined at 18 U.S.C. § 2332b(g)(5).”

The defendant in this case, Mamdouh Mahmud Salim, was originally indicted, along with several others, on numerous charges “alleging a global terrorist conspiracy to murder United States citizens, including charges relating to the August 7, 1998, bombings of United States embassies in Nairobi, Kenya and Dar es Salaam, Tanzania.” (Id., at 259). The indictment on those original charges (herein the “1998 charges”) is still outstanding; and the charges in that case have yet to be proven.

On November 1, 2000, while being held at the Metropolitan Correction Center in New York (“MCC”) on the 1998 charges, Salim attacked a prison guard, Louis Pepe, by stabbing him in the eye with a sharpened comb. (Id.). Salim was quickly indicted on new charges arising out of the MCC attack; and on April 3, 2002, Salim pled guilty to conspiring to murder Officer Pepe, in violation of 18 U.S.C. § 1117, and to attempting to kill Officer Pepe, in violation of 18 U.S.C. § 1114 (the “2000 charges”).

When it came time to sentence Salim on the 2000 charges, the Government alleged that the attack on Officer Pepe was part of an elaborate plot to capture hostages in order to secure the release of Salim and some of the other defendants facing the 1998 charges. Accordingly, the Government argued that the court should impose, inter alia, the twelve-level enhancement referred to in § 3A1.4, on the grounds that the attempted murder to which Salim pled guilty “involved, or was intended to promote, a federal crime of terrorism.” (Id., at 318). For the record, it should be noted that one of the crimes to which Salim pled guilty - namely, the attempted murder of a federal official, 18 U.S.C. § 1114 - is one of the offense enumerated at 18 U.S.C. § 2332b(g)(5)(B) as constituting a “federal crime of terrorism.”

Salim objected to the § 3A1.4 enhancement on a number of grounds. Specifically, he argued that: “(1) in promulgating U.S.S.G. § 3A1.4, the Sentencing Commission exceeded its authority and contravened the intent of Congress; (2) because there is insufficient evidence in the trial record to support the requirements of § 2332b(g)(5)(A), an evidentiary hearing must be held; (3) the ‘motivational’ requirement of 18 U.S.C. § 2332b(g)(5)(A) must be proven by the Government by a heightened standard of proof; (4) application of § 3A1.4 here would violate Apprendi v. New Jersey, 530 U.S. 466 (2000) and McMillan v. Pennsylvania, 477 U.S. 79, (1986); and (5) the Government seeks enhancement under § 3A1.4 solely on the basis of allegations of Defendant's claimed links to terrorism.” (Id., at 319).

In addition, the defendant argued that neither the history of § 3A1.4 nor case law on that provision demonstrates that a “federal crime of terrorism” as defined at § 2332b(g) applies to a solely domestic crime. (Id., at 335).

There are some intriguing aspects of Judge Batts’ patient and thorough review of the issues before her. For example, after extensive hearings, she concluded that there was “no evidence” to support some of the Government’s claims about the scope of Salim’s conduct (id., at 292); and she concluded that the Government’s theory that Salim was acting on a “hostage-taking scheme . . . is undermined by significant inconsistencies” in the evidence presented. (Id., at 293).

Apart from her frequent jibes at the Government for taking poetic license with the evidence and with the plain language of § 3A1.4, Judge Batts’ decision is noted for its comprehensive analysis of whether § 3A1.4 applies to a crime that is enumerated in § 2332b(g)(5), but which encompasses conduct that is solely domestic and does not transcend national borders.

On that issue, she painstakingly traced the legislative history of both § 3A1.4 and the evolution of the definition of “federal crime of terrorism” and contained in § 2332b(g). (Id., at 331-355). At the completion of that analysis, she concluded that there was “insufficient evidence to conclude Defendant’s conduct amounted to a ‘Federal crime of terrorism,’ as defined at 18 U.S.C. § 2332b(g)(5). Accordingly, the Court declines to apply the sentence enhancement at U.S.S.G. § 3A1.4 to Defendant’s sentence.” (Id., at 354.). More specifically, Judge Batts concluded that:

“[B]ecause there is no evidence that Defendant's attack on Officer Pepe involved conduct transcending national boundaries, the Court finds that the Government has not established by a preponderance that Defendant's relevant conduct included a ‘Federal crime of terrorism.’ As defined at 18 U.S.C. 2332b(g)(5), a ‘Federal crime of terrorism’ is one that meets the two prongs set forth at 18 U.S.C. §§ 2332b(g)(5)(A) and (B), and that involves conduct that transcends national boundaries. There is no evidence in the record that Defendant's relevant conduct involved any conduct transcending national boundaries. The attack on Officer Pepe occurred at the MCC, in New York, New York. Defendant testified, and the Government does not dispute, that while Defendant was incarcerated at the MCC prior to November 1, 2000, he wrote the notes and lists discovered after the attack. There has been no allegation, nor any evidence offered, that shows Defendant was acting in concert with persons outside of the United States.” (Id.)

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