Vol. 13, Nos. 3 & 4	Covering Cases Published in the Advance Sheets through Jan. 23, 2006

Court Dismisses Lawsuit Challenging Secret Rendition to Syria

• In Arar, Judge Trager of the E.D.N.Y. dismissed a lawsuit by Maher Arar, a Syrian born Canadian citizen, against various American officials in which he claimed that he was held virtually incommunicado for thirteen days in a U.S. prison before being transported to Syria for the express purpose of detention and interrogation under torture by Syrian officials. After 10 months of torture Arar was released without any charges and without any acknowledgment from the U.S. that it had made a mistake; but Judge Trager concluded that the lawsuit could not proceed because it involved crucial “national security and foreign relations issues” that might embarrass the Canadian Government. WOW!
  
  

Sentencing Issues

• Without any meaningful discussion or explanation, the Ninth and Eleventh Circuits, respectively, in the Lynch and Williams cases, jumped on the bandwagon of all the other Circuits that have ruled on the issue to date, by holding that nothing in the Apprendi/Blakely/Booker line of cases prevents a district court from imposing a sentencing enhancement based on acquitted conduct (in the Lynch case) and uncharged crimes (in the Williams case).
  
  
  
• Expanding upon the “presumption of reasonableness” approach that many appellate courts now use when assessing the validity of sentences that are within the range suggested by the Guidelines, the Fourth and Eighth Circuits, respectively, in the Green and McManus cases, seem to have come close to adopting a new and troublesome “presumption of unreasonableness” for sentences that fall below the ranges suggested by the Guidelines. Coincidently, Steven Sady, the articulate Federal Public Defender from Oregon, has written an excellent critical commentary (which is posted on the Ninth Circuit Blog) in which he persuasively argues that the presumption of reasonableness might be a quick-and-easy Booker fix, but it is problematic, it finds no support in statutes or in the Booker opinion, and it “invites Sixth Amendment violations through the back door.”

Gun and Drug Convictions Vacated Due to "Manufactured" Exigent Circumstances

• In Coles, a divided panel from the Third Circuit held that the police used a subterfuge to create the very exigency which they claimed justified their warrantless search of a hotel room; and thus it reversed the defendant’s drug and gun convictions, holding that exigent circumstances exception to the warrant requirement is not triggered when the police “manufacture” the exigency itself. That holding highlights a conflict among the Circuits about whether the courts may examine the propriety and reasonableness of police conduct, if such conduct is not per se illegal.

Collateral Estoppel Held Not to Apply to a Removal Proceeding

• In Duvall, the Third Circuit held that, after the INS had lost an earlier attempt to deport the petitioner because it failed, through a trial error, to prove her alienage, it was not barred by the doctrine of collateral estoppel from relitigating the issue of her alienage in a subsequent attempt to deport her.

Arar v. Ashcroft, No. CV-04-0249 (DGT) (E.D.N.Y. Feb. 16, 2006) (Judge Trager)

In an intensely disturbing ruling that has generated virtually no coverage in the American press, Judge Trager dismissed this civil rights lawsuit by Maher Arar against various American officials for damages based on his alleged arrest and deportation to Syria for the express purpose of undergoing torture. The case is the first reported direct challenge to the Government’s apparently deeply entrenched and covert practice of “extraordinary rendition” - which involves the removal of “non-U.S. citizens detained in this country and elsewhere and suspected - reasonably or unreasonably - of terrorist activity to countries, including Syria, where interrogations under torture are routine" - and without any court approval.

Maher Arar, a 33-year old Syrian who immigrated to Canada as a teenager and is a dual citizen of Canada and Syria, was seized on a stopover flight at JFK Airport on September 27, 2002, while returning, with his family, from a vacation in Tunisia. When he presented his Canadian passport to Customs officials, he was identified as “the subject of a . . . lookout as being a member of a known terrorist organization.” He was immediately seized and interrogated, in shackles, and then shipped off to the Metropolitan Detention Center where he was held incommunicado and in solitary confinement.

His interrogations continued for some 13 days, during which time he was repeatedly denied access to counsel except for one brief meeting with an attorney retained by the Canadian Consulate when it finally leaned of Arar’s detention almost a week after he was initially seized. During his detention, Arar was offered the “opportunity” of deportation to Syria, which he refused on the grounds that he feared he would be tortured if sent there.

Ultimately, the INS Regional Director determined “from classified and unclassified information” that Arar was "clearly and unequivocally" a member of al Qaeda and, therefore, "clearly and unequivocally inadmissible to the United States." Arar has consistently denied those allegations; and he contends that he is not a member of any terrorist organization, including al Qaeda, and has never knowingly associated himself with terrorists, terrorist organizations or terrorist activity.

Nevertheless, the INS Regional Director concluded "that there are reasonable grounds to believe that [Arar] is a danger to the security of the United States"; and he was ordered to be sent to Syria - but without informing the Canadian Consulate or the lawyer that had been retained to represent Arar. Because Syria would not accept Arar directly from the United States, he was flown by private plane to Amman, Jordan on October 9, 2002, where he was turned over to Jordanian authorities, who then delivered him to Syria later the same day. Arar was held in such conditions for 10 months before he was finally released without any charges being filed against him.

Judge Trager’s 88-page decision recounts Arar’s allegations of his treatment in Syria as follows:

“During his ten-month period of detention in Syria, Arar alleges that he was placed in a ‘grave’ cell measuring six-feet long, seven feet high and three feet wide. The cell was located within the Palestine Branch of the Syrian Military Intelligence ("Palestine Branch"). The cell was damp and cold, contained very little light and was infested with rats, which would enter the cell through a small aperture in the ceiling. Cats would urinate on Arar through the aperture, and sanitary facilities were nonexistent. Arar was allowed to bathe himself in cold water once per week. He was prohibited from exercising and was provided barely edible food. Arar lost forty pounds during his ten-month period of detention in Syria.

“During his first twelve days in Syrian detention, Arar was interrogated for eighteen hours per day and was physically and psychologically tortured. He was beaten on his palms, hips and lower back with a two-inch-thick electric cable. His captors also used their fists to beat him on his stomach, face and back of his neck. He was subjected to excruciating pain and pleaded with his captors to stop, but they would not. He was placed in a room where he could hear the screams of other detainees being tortured and was told that he, too, would be placed in a spine-breaking ‘chair,’ hung upside down in a ‘tire’ for beatings and subjected to electric shocks. To lessen his exposure to the torture, Arar falsely confessed, among other things, to having trained with terrorists in Afghanistan, even though he had never been to Afghanistan and had never been involved in terrorist activity.

“Arar alleges that his interrogation in Syria was coordinated and planned by U.S. officials, who sent the Syrians a dossier containing specific questions. As evidence of this, Arar notes that the interrogations in the U.S. and Syria contained identical questions, including a specific question about his relationship with a particular individual wanted for terrorism. In return, the Syrian officials supplied U.S. officials with all information extracted from Arar; plaintiff cites a statement by one Syrian official who has publicly stated that the Syrian government shared information with the U.S. that it extracted from Arar.”

After Arar filed his complaint for damages, the Government quickly moved to dismiss his claims under Rules 12(b)(1) and 12(b)(6) of the Fed.R.Civ.P., for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted.

In ruling on those motions, Judge Trager concluded that he could not interfere in the case because it involved crucial national security and foreign relations issues in the war on terror. With a rationale that we found astonishing, he concluded in part:

“The propriety of these considerations, including supposed agreements between the United States and foreign governments regarding intelligence-gathering in the context of the efforts to combat terrorism, are most appropriately reserved to the Executive and Legislative branches of government. Moreover, the need for much secrecy can hardly be doubted. One need not have much imagination to contemplate the negative effect on our relations with Canada if discovery were to proceed in this case and were it to turn out that certain high Canadian officials had, despite public denials, acquiesced in Arar's removal to Syria. More generally, governments that do not wish to acknowledge publicly that they are assisting us would certainly hesitate to do so if our judicial discovery process could compromise them. Even a ruling sustaining state-secret-based objections to a request for interrogatories, discovery demand or questioning of a witness could be compromising.”

So, to save face for any Canadian officials who may have been bludgeoned into acquiescing to Arar’s extraordinary rendition and subsequent torture, Judge Trager felt it was incumbent on him to back off and defer to the Executive Branch. So much for the concept of checks and balances!

Arar’s lawsuit in this case was launched on his behalf by the Center For Constitutional Rights; and its Website at www.ccr-ny.org contains a lot more information about Judge Trager’s ruling. Maria LaHood, one of the Center’s attorneys on the case, had these comments:

"This ruling sets frightening precedent. U.S. officials sent Maher Arar to Syria to be detained and interrogated through torture. To allow the Bush Administration to continue to evade accountability and continue to hide behind the smokescreen of 'national security' is to do grave and irreparable damage to the Constitution and the guarantee of human rights that people in this country could once be proud of."

U.S. v. Green, No. 05-4270 (4th Cir. Feb. 6, 2006) (Judge Niemeyer)
U.S. v. McManus, No. 04-3560 (8th Cir. Feb. 3, 2006) (Judge Gruender)

Almost as soon as the Supreme Court adopted its “reasonableness” standard of review of sentences in the post-Booker world, debates broke out among the Circuits about what constituted a reasonable sentence and how much leeway would be granted to the district courts to vary from the sentencing range suggested by the Guidelines. A lot of the Circuits quickly opted for the quick-and-easy (and politically safe) approach that sentences which fall within the range suggested by the now-advisory Guidelines deserve a “presumption of reasonableness” - but even that approach has been subject to much criticism.

Just this past week, Steven Sady, the Chief Deputy Federal Public Defender from Portland, OR, posted, on the Ninth Circuit Blog, a timely and perceptive commentary about the post-Booker “presumption of reasonableness.” That commentary is entitled “Guidelines Appeals: the presumption of reasonableness and reasonable doubt”; and, in it, Mr. Sady pointed out some of the dangers of using the “presumption of reasonableness” as a quick-fix to determine whether a sentence within the Guideline range was or was not reasonable. Mr. Sady observed, in part:

“The cases creating a presumption of reasonableness find no support in statutes or in the Booker opinion. On the contrary, Justice Breyer’s remedial Booker opinion contemplates a reasonableness review unencumbered by special deference for the guidelines. After the excision of the mandatory portions of the guidelines, the Court noted that the remaining appellate rights did not accord special deference to the guidelines over other relevant sentencing factors: ‘[T]he Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range in the exercise of his discretionary power under § 3553(a)).’ 125 S.Ct. at 765.

“Justice Breyer clearly stated that, with § 3742(e) excised, the standard of review would have to be implied from the remainder of the statute, which did not include special consideration for the Guidelines range. He pointed out that, under the old regime, appellate judges reviewed for reasonableness both the degree of departures and sentences for crimes without guidelines -- 16.7% of sentencing appeals. Justice Breyer then stated that this same standard would apply to all sentencing appeals ‘across the board’: ‘And that is why we believe that appellate judges will prove capable of facing with greater equanimity than would Justice Scalia what he calls the ‘daunting prospect,’ [] of applying such a standard across the board.’ 125 S.Ct. at 766.

“In fact, a presumption of reasonableness negates what Justice Breyer saw as the check on discordance in the system. The Sentencing Commission would ‘continue to collect and study appellate court decisionmaking.’ Based on the untrammeled reasonableness review, the Sentencing Commission could modify the guidelines, ‘encouraging what it finds to be better sentencing practices.’ A judicial presumption would skew the data, rather than inform the supervising body regarding areas in need of adjustment. And the sacrifice of some uniformity is the necessary consequence of refusal to accord Sixth Amendment protections to sentence-enhancing facts: ‘We cannot and do not claim that use of a “reasonableness” standard will provide the uniformity that Congress originally sought to secure.’ 125 S.Ct. at 766-67.”

To complicate this debate even further, it now appears that some of the Circuits are getting pretty close to adopting the illogical and troubling converse of the “presumption of reasonableness” rule - by holding that sentences that fall below the suggested Guideline range warrant a virtual “presumption of unreasonableness.”

Both of the instant cases involve appeals by the Government of sentences which it claimed were unreasonable; and both rulings are evidence that the new “presumption of unreasonableness” standard is starting to take hold in some Circuits for sentences that are below the suggested Guideline range.

In Green, the Fourth Circuit vacated a sentence because the district court declined to impose a career offender enhancement after concluding that the career offender provisions were not intended to apply to this defendant, who was convicted of two relatively minor offenses within a short period of time. The Fourth Circuit rejected the district court’s explanation and vacated the defendant’s sentence as unreasonable, stating:

"A sentence falling outside of the properly calculated Guidelines range is not ipso facto unreasonable. But if that sentence is based on an error in construing or applying the Guidelines, it will be found unreasonable and vacated. The same is true if the sentence is imposed outside the Guideline range and the district court provides an inadequate statement of reasons or relies on improper factors in departing from the Guidelines' recommendation. . . ."

In McManus, the Eighth Circuit vacated as unreasonable the sentences imposed on two drug dealers, Sheri Brinton and Patrick McManus. Brinton’s mandatory minimum sentence of 120 months was 54% below the minimum recommended Guideline sentence; and McManus’ sentence of 24 months was 58% below “the low end of the presumptively reasonable guidelines range.” The district court did not provide any detailed explanation of its reasons for the sentence reductions other than to criticize the Guidelines and state that they were “incredibly arbitrary" - factors that probably would have given the appellate court grounds to reverse the sentences at issue. However, without ever really addressing those factors, the Court simply concluded that sentences that are 54% and 58% below the minimum are unreasonable on their face - seemingly without regard for the reasons.

Thus, the Court simply stated:

“In Brinton's case, the district court imposed a sentence of 120 months, 142 months below the low end of the presumptively reasonable guidelines range, ‘primarily based on the fact that [Brinton had] no prior criminal history points.’ In light of § 3553(a), we do not believe that Brinton's lack of criminal history, which is one of the considerations that determined her advisory guidelines range, or anything else in the record justifies a variance of this magnitude. The sentence selected by the district court, a 54 percent variance, was outside the range of reasonableness. Therefore, we vacate Brinton's sentence as unreasonable.

“In McMannus's case, the district court failed to provide any explanation for imposing a sentence of 24 months, 33 months below the low end of the presumptively reasonable guidelines range. While we can identify factors that may warrant a minor variance from the guidelines range, e.g., McMannus put himself through community college while on pretrial release, we find nothing in the record which would justify a variance of this magnitude under § 3553(a). The sentence selected by the district court, a 58 percent variance, was outside the range of reasonableness. Therefore, we vacate McMannus's sentence as unreasonable.”

The Court’s rationale is tantamount to saying that any sentence below some as-yet undefined percent is automatically unreasonable and must be reversed because, at that percent, the Guidelines are no longer advisory only!

As a matter of interest, we also note that we have seen no evidence that this new “presumption of unreasonableness” is being applied in cases involving sentences that are above the suggested Guideline range - a fact that tends to suggest that the criteria for measuring “reasonableness” varies depending on whether the sentence was reduced at the request of the defendant or increased at the request of the Government. Thus, it would appear that the selective use of this new “presumption of unreasonableness” is just another indication that the battle field for sentencing appeals is not level !!

U.S. v. Coles, No. 04-2134 (3rd Cir. Feb. 9, 2006) (Judge Garth)

Perhaps the most surprising aspect of this decision is its acknowledgment of the unsettled state of the law on the relatively straightforward issue of whether an appellate court may delve into the subjective intent of the police to determine whether or not the police have manufactured the very exigency that was used to justify a warrantless search.

In this case, a divided panel from the Third Circuit reversed a drug and gun conviction because the majority concluded that the police had impermissibly created the exigent circumstances that led to the search of defendant Terrance Cole’s hotel room; and that the district court erred in declining to grant his motion to suppress the evidence of the drugs found in his room. In dissent, Judge Jane Roth argued that the majority's decision to focus the exigency analysis on the subjective intent of the investigating officers “produces the ‘could've, should've, would've’ analysis that is so anathema to our judicial role.”

The pertinent facts of this case were as follows: After the manager of the hotel where Coles was staying observed drugs in the room, he contacted the police, who then inspected the room with the manager. Upon seeing the drugs, one of the officers left to try to obtain a warrant, while the others monitored the room from across the hall.

Before any warrant was obtained, Coles and a friend returned to the room with backpacks. At that point, the officers decided not to wait for the warrant and instead attempted to enter the room by use of a ruse.

First, they knocked on the door and announced "room service" in an attempt to get the two men to open the door. A man replied that he had not ordered anything and refused to open the door. The police then knocked a second time, this time announcing that they were from maintenance and were there to fix a reported leak. A voice again responded, saying there was no leak and again the person refused to open the door. Finally, the police knocked a third time, this time more forcefully, telling the occupants to "open the door, this is the police."

At that, the officers heard sounds of running and flushing, so they forcibly opened the door and entered the room, seizing crack, cash, and a gun. The district court (Judge Bartle of the E.D.Pa.) declined to suppress the evidence, finding that there was probable cause and exigent circumstances - namely, the imminent destruction of evidence - to justify the warrantless search.

On appeal, the Court concluded that since the police already had probable cause -- based on the hotel manager's statements -- they could have obtained a search warrant. The Government conceded that the first entry of the hotel room was illegal, but it also made the somewhat improbable argument that the police had not relied on anything seen during that search. Ultimately, it argued that the case was governed by the exigent circumstances exception to the warrant requirement.

By a vote of 2 to 1, the panel reversed, concluding that the exigency "did not arise naturally or from reasonable police investigative tactics. Quite to the contrary, the officers, after their pretextual announcements had failed to gain entry to room 511, deliberately created the exigency by knocking on the door to room 511 and demanding entry.”

By looking at the propriety and reasonableness of the circumstances leading up to the search and the investigative tactics used by the polic officers, the majority concluded that the police had “impermissibly manufactured the exigency.” The majority emphasized that “in identifying themselves as hotel personnel providing ‘room service’ or ‘maintenance,’ the police resorted to subterfuge, clearly manifesting their intention to mislead the occupants into believing that they were not police officers.”

In dissent, Judge Roth argued that the majority was misreading the Supreme Court’s decision in Johnson v. U.S., 333 U.S. 10 (1948) and that it holding “imposes a standard for police behavior that is not derived from the Constitution.” Johnson, she said, was not about exigent circumstances because, in that case, the Supreme Court specifically found that "no evidence or contraband was threatened with removal or destruction." She then continued:

“This case, however, is entirely about exigency. . . . Nonetheless, the majority argues that here, as in Johnson, the police had no justification for knocking and demanding entry to Coles's hotel room before securing a warrant. The majority's use of Johnson ignores the salient, distinguishing factor with the instant case; here, there was a exigency.

“With this misreading of Johnson, the majority then ignores the point that knocking and attempting to engage a person in conversation are not violations of the Fourth Amendment. . . . Also, entry into a dwelling in the face of exigent circumstances when the police have probable cause is not a violation of the Fourth Amendment. The majority feels, however, that these two otherwise constitutional actions performed in sequence are greater than the sum of their parts and, therefore, constitute a violation of the Fourth Amendment because the police could have and, consequently, should have waited to obtain a warrant.” (Internal citations omitted).

The divergent opinions in this case highlight the Circuit split on this issue. The Fifth Circuit has held that the exigent circumstances must exist at the time that the officers knock and announce their presence (see U.S. v. Richard, 994 F.2d 244 (5th Cir. 1993); while the Second Circuit gives police officers far wider latitude. In U.S. v. MacDonald, 916 F.2d 766, 772 (2d Cir. 1990) (en banc), the Second Circuit established the following principle to determine whether the police impermissibly create exigent circumstances: "when law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances."

In Brief
[partial listing of cases]

Supervised Release - Special Conditions of at Supermax Prisons: U.S. v. Smith, No. 04-2448 (1st Cir. Feb. 8, 2006) - This is another case in which a court upheld a sweeping special condition of supervised release which, on its face, appeared to have little direct connection to his crime of conviction. Gregory Smith was convicted of a “medley” of narcotics offenses; and one of the conditions of supervised release that was imposed upon him at sentencing was a provision that barred him from making contact with his minor daughter, who was born after he was incarcerated.

On appeal, Smith challenged that condition, arguing that this supervised release condition (i) denied him his fundamental right to associate with family members and (ii) lacked any reasonable relationship to the permissible goals of supervised release.

In a surprisingly blithe decision, the First Circuit upheld the special condition, stating, essentially, that the absence of any direct connection between Smith’s offenses of conviction and his minor daughter was irrelevant because “the critical test is not whether such an offense-specific nexus exists but, rather, ‘whether the challenged condition is sufficiently related to one or more of the permissible goals of supervised release’." Writing for the Court, Judge Selya stated that the law permits a court to order, as a special condition of supervised release, that the defendant "refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons" - citing 18 U.S.C. § 3563(b)(6), a provision that is normally interpreted as prohibiting contact with persons with criminal records. Then, ignoring the mandates of U.S.S.G. § 5D1.3(c)(4) (which require a defendant to meet his other “family responsibilities”), Judge Selya reached the remarkable conclusion that “the challenged condition fits within [the] taxonomy [of § 3563(b)(6)].” Taxonomy, maybe; but certainly not the intent or spirit of § 3563(b)(6).

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