Vol. 12, No. 1	Covering Cases Published in the Advance Sheets through Jan. 3, 2005

• To date, there have been far fewer reported decisions relating to the Supreme Court’s ruling in U.S. v. Booker than most people expected, but Booker left so many unanswered questions that the dam is bound to break soon - or else the Circuits will be inundated with conflicting rulings from the district courts. In the meantime, the press is alive with reports of judges who sentenced defendants above and below the range the would have applied under the now-advisory Federal Sentencing Guidelines, and with reports of rumblings from Congress and the Justice Department about efforts to curb the broad judicial discretion that now seems to prevail.

  The most significant new decision during the past week was Judge Robert Pratt’s (S.D.Iowa) thoughtful decision in Myers, an unlawful gun possession case. In imposing a sentence of three-months probation, Judge Pratt explained that a sentence of imprisonment was “totally unwarranted” in view of all the sentencing factors enumerated in 18 U.S.C. § 3553(a) which sentencing courts are now required to consider.

Supreme Court

• In Caballes, the Supreme Court held, by a vote of 6-to-2, that a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment. In a surprisingly strong dissent, Justice Ginsburg warned that the Court’s ruling “clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots.”

Antiterrorism

• The Khalid and the Guantanamo Detainee cases reflect the deep divisions in the judiciary over the Administration’s repeated assertion of the right to detain at Guantanamo Bay - incommunicado, indefinitely, without charge, and without any form of judicial review - anyone it labels an “enemy combatant.” In Khalid, Judge Leon concluded that he could not find any “viable legal theory” permitting him to order such a detainee’s release. Then, in the Guantanamo Detainee case, Judge Green ruled that the President is not authorized “to rule by fiat that an entire group of fighters” has limited legal rights. The wide divergence of views in these two decisions presage an early appeal to the D.C. Circuit and, most likely, another appeal to the Supreme Court - events that could drag these cases out for many more years.
  
  
• In the O.K. case, Judge Bates of the D.D.C. held that an 18-year old Canadian citizen at Guantanamo Bay, who has been held as an enemy combatant since the age of 15, is not entitled to an independent medical examination to determine his mental competency, since no charges have ever been filed against him. Under American law, Judge Bates concluded, the determination of competency “is limited to the time of a criminal trial” - so O.K. gets no relief unless and until the Government asserts some charges against him.

To date, the pace of reported decisions interpreting the Supreme Court’s blockbuster sentencing decision in U.S. v. Booker, 125 S.Ct. 738 (Jan. 12, 2005) has been slower than many expected. [For a complete listing of all the Booker decisions that have been reported, and other significant Booker-related resources, see our special Booker Resource Center at www.ussguide.com/members/BulletinBoard/Booker/Index.cfm].

In the meantime, the press has been filled with a surprisingly high volume of editorial comment on Booker and with a steady flow of reports about judges imposing sentences both above and below the ranges suggested by the now advisory-only Federal Sentencing Guidelines.

Legal commentators have also been active making predictions about the meaning and the long-term impact of Booker on criminal sentences. While the official attitude of the Department of Justice seems to one of “wait-and-see,” a number of spokespersons have bemoaned the absence of mandatory guidelines, predicting that Booker will make it difficult to convince defendants to plea bargain because they may think they’ll get a better deal from a judge. Such predictions of doom are having a predictable impact on some legislators who are already talking about major legislative fixes to Booker. It is also becoming increasingly apparent that the Department of Justice really wants a return to a mandatory guideline sentencing system and it also wants to avoid being required to prove aggravating factors to a jury beyond a reasonable doubt.

The outcome of the Booker debate will probably rest to a large degree on whether Congress perceives that the sentencing judges are asserting too much discretion (read “bleeding heart” independence) in choosing sentences that vary from the ranges recommended by the Guidelines - and whether the courts extend any broad appeal rights to prisoners who, as a class, still appear to be convinced that Booker holds great promise for most sentences imposed - at least as far back as Booker’s predecessor, Apprendi v. New Jersey, 530 U.S. 466 (2000).

While there have been a few significant Booker cases from the district courts (most notably Judge Cassell’s decision in U.S. v. Wilson, 2005 U.S. Dist. LEXIS 735 (D.Utah Jan. 13, 2005) (P&J, 12/20/04) and Judge Adelman’s still unpublished decision in U.S. v. Ranum, No. 04-CR-31 (E.D.Wisc. Jan. 19, 2005) (P&J, 12/27/04)), there have been no major pronouncements from the Circuit courts. We expect that to change quickly as the Circuit courts begin to grapple both with the many questions left unanswered by Booker and with the newer issues raised in the post-Booker sentences that are now being imposed by the district courts.

The most significant new Booker decision of this past week was Judge Robert Pratt’s masterly and thoughtful opinion in the Myers case:

U.S. v. Myers, No. 3:04-cr-147 (S.D.Iowa Jan. 26, 2005) (Judge Pratt)

This is one of those cases that cried out for relief from an inflexible Guidelines regimen. The defendant, Robert Myers, who had no prior criminal history, was charged by an over-zealous ATF with the unlawful possession of an illegal firearm.

Myers, who lives in rural Iowa, had received a shotgun as a gift from his parents in 1974, when he was 14-years old. Sometime prior to 2001, Myers sawed a portion of the barrel off the gun because it was beginning to rust on the end, thereby making it safer to use. In 2001, Myers sold the gun to a cousin for $50. In 2004, the cousin used the shotgun to bludgeon a neighbor, who required 14 staples to close the wound.

During its investigation into the cousin’s crime, the ATF learned that the cousin had purchased the gun from Myers. Even though no one even claimed that Myers had anything to do with the beating inflicted by his cousin, the ATF decided to prosecute Myers for violating 26 U.S.C. §§ 5841, 5861(d) and 5871 - for having possessed a shotgun which had a barrel length of less than 18 inches. Myers’ Guideline sentencing range was 20 to 30 months in prison; but he sought a downward departure based on aberrant conduct, pursuant to U.S.S.G. § 5K2.20.

After considering all the factors of this case, Judge Pratt concluded that “a term of imprisonment in this case is totally unwarranted”; and he sentenced Myers to a term of three months probation “out of respect for the fact that a violation of federal law has occurred, and to deter others from committing similar acts.”

In assessing the impact of Booker on this case, Judge Pratt adopted the views of Judge Adelman in U.S. v. Ranum, No. 04-CR-31 (E.D.Wisc. Jan. 19, 2005) that the Guidelines were only one factor to be considered in imposing sentence in criminal cases; and that sentencing judges must consider the Guidelines “in conjunction with other factors that Congress enumerated in [18 U.S.C.] § 3553(a). He also took issue with Judge Cassell’s more rigid view in U.S. v. Wilson, 2005 U.S. Dist. LEXIS 735 (D.Utah Jan. 13, 2005) that the Guidelines are still presumptive and should only be departed from “in unusual cases for clearly identified and persuasive reasons.” He explained:

“To treat the Guidelines as presumptive is to concede the converse, i.e., that any sentence imposed outside the Guideline range would be presumptively unreasonable in the absence of clearly identified reasons. If presumptive, the Guidelines would continue to overshadow the other factors listed in section 3553(a), causing an imbalance in the application of the statute to a particular defendant by making the Guidelines, in effect, still mandatory.”

After a long quote from the Ranum opinion noting how the requirements of § 3553(a) can conflict with aspects of the Guidelines, Judge Pratt concluded:

“In citing Ranum, this Court does not mean to be unduly harsh about the wisdom contained in the Guidelines, for wisdom is there. Wisdom, however, also resides in the other statutory sentencing factors, but was not allowed expression under the former mandatory scheme. Each of the factors enumerated under § 3553(a) is, in reality, an expression of our society's multiple interests in sentencing an individual. . . .

“This Court views Booker as an invitation, not to unmoored decision making, but to the type of careful analysis of the evidence that should be considered when depriving a person of his or her liberty. . . .

“The Supreme Court characterized the basic statutory role of the sentencing system as the diminishment of disparity in sentencing. At first blush, a system of discretionary sentencing would appear to invite what Congress hoped to avoid, unfairness at sentencing. The Supreme Court in Booker, however, reminded judges and the public that true uniformity exists not in a one-size-fits-all scheme, but in ‘similar relationships between sentence and real conduct.’ This is the guiding principle at work in Booker. This Court will endeavor, then, to square the real conduct presented by the evidence presented concerning a particular defendant, with the public interests expressed through the sentencing statute, in order to deliver a judgment in a manner as even-handed and reasonable as humanly possible.” (Internal citations omitted).

By a 6-to-2 vote, the Supreme Court ruled that police do not violate the Fourth Amendment when they use a drug-detecting dog to locate illegal drugs during a legal traffic stop, even if the officers have no reason to suspect that the motorist may be carrying narcotics.

In a decision written by Justice Stevens, the majority held: "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment."

An Illinois state trooper stopped Roy Caballes for driving six miles over the speed limit. While the trooper was writing a ticket, a second trooper walked a drug dog around the car. The dog alerted to the trunk, and marijuana was found. The whole stop lasting less than twelve minutes. Caballes was convicted and sentenced to twelve years in jail and a quarter-million dollar fine. He appealed and the Illinois Supreme Court reversed, finding that because there were no specific and articulable facts to suggest drug activity, use of the dog unjustifiably enlarged a routine traffic stop into a drug investigation.

The Supreme Court granted certiorari to consider a narrower question, namely: "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop."

In response to that question, the majority held: "[T]he use of a well-trained narcotics-detection dog – one that does not expose noncontraband items that otherwise would remain hidden from public view, – during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement."

In dissent, Justice Souter questioned the reliability of drug dogs, stating: “The infallible dog . . . is a creature of legal fiction.”

Justice Ginsburg also dissented, arguing that walking a dog around the car was an improper expansion of a Terry stop (Terry v. Ohio, 392 U.S. 1 (1968)). She stated:

“Terry, it merits repetition, instructs that any investigation must be ‘reasonably related in scope to the circumstances which justified the interference in the first place.’ The unwarranted and nonconsensual expansion of the seizure here from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that, in my judgment, runs afoul of the Fourth Amendment. . . .

“Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. . . .

“Under today's decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population. . . .Today’s decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots.”

For those interested in pursuing “canine law” in greater depth, see “Canine Legal Update and Opinions,” a Website located at http://www.k9fleck.org/ which is maintained by Terry Fleck, Deputy Sheriff and Canine Handler for El Dorado County, CA. Although that sited is maintained for the benefit of law enforcement personnel, it has some useful links, including a listing of cases in which canine evidence has been challenged.

In these two sharply conflicting decisions, Judges Leon and Green came to different conclusions about whether the many detainees still being held, incommunicado and without charges, at the U.S. military prison at Guantanamo Bay, Cuba are entitled to have the federal courts examine whether they have been lawfully detained.

Many had assumed that issue had been resolved in the Supreme Court’s recent ruling in Rasul v. Bush, 124 S.Ct. 2686 (2004), where, by a vote of 6-3, the Court held that the foreign nationals held at Guantanamo Bay do have the right to file habeas corpus petitions in the federal courts to challenge the legality of their detention and the conditions at the base. The Rasul Court, however, left open the precise nature of how those rights would be exercised.

Clearly, the administration did not react kindly to Rasul; and it immediately began a dance on the head of a needle in an attempt to limit its impact. (See, “U.S. Stymies Detainee Access Despite Ruling, Lawyers Say,” by Carol D. Leonnig, Washington Post, Oct. 14, 2004).

The Government’s dance succeeded, at least in the Khalid case, where Judge Leon (an appointee of President Bush) dismissed requests by seven detainees for judicial review of their detentions, holding that foreigners imprisoned at Guantanamo Bay had no legal way to challenge their convictions in federal courts. While he acknowledged that Rasul gave the “enemy combatants” held at Guantanamo access to the U.S. courts, he made a distinction between the right to file for a habeas corpus petition before a judge and the right to obtain one.

“No viable legal theory exists by which [the Court] could issue a writ of habeas corpus under these circumstances,” he wrote. Federal courts could not evaluate the lawfulness of the actions of a president who detained “nonresident aliens, outside of the United States, during the time of armed conflict.”

Conversely, in the lengthy Guantanamo Detainee ruling, Judge Green (an appointee of President Carter) ruled that the foreign detainees may fight their imprisonment as a violation of their constitutional due process rights. She wrote:

“Of course, it would be far easier for the government to prosecute the war on terrorism if it could imprison all suspected ‘enemy combatants’ at Guantanamo Bay without having to acknowledge and respect any constitutional rights of detainees. That, however, is not the relevant legal test. By definition, constitutional limitations often, if not always, burden the abilities of government officials to serve their constituencies. Although this nation unquestionably must take strong action under the leadership of the Commander in Chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over two hundred years.”

Judge Green also concluded that some of the detainees may be entitled to hearings to determine if they are “prisoners of war.” On that issue, she wrote that the President is not authorized “to rule by fiat that an entire group of fighters covered by the Third Geneva Convention falls outside of the Article 4 definitions of ‘prisoners of war’."

In her broad ruling, Judge Green also ruled that the special Combatant Status Review Tribunals (“CSRT”) that the military hastily established to deflect the impact of Rasul were unconstitutional, because “the procedures provided in the CSRT regulations fail to satisfy constitutional due process requirements in several respects” particularly since the detainees were not allowed to have lawyers represent them, nor could they determine the precise nature of the charges against them. Finally, Judge Green became the first judge to raise concerns about whether the detainees had been tortured during interrogations. Judges, she wrote, must make sure that people are not detained indefinitely based on coerced and unreliable information.

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