Vol. 13, No. 23	Covering Cases Published in the Advance Sheets through June 5, 2006

New Supreme Court Rulings

• In Gonzalez-Lopez, the Supreme Court held, by a 5 to 4 vote, that the right to counsel of choice is the fundamental “root meaning” of the Sixth Amendment’s guarantee of the right to counsel, and when that right is violated, the defendant’s conviction must be reversed - whether or not the violation resulted in an unfair trial.
  
  
  
• In Recuenco, the Supreme Court, by a vote of 7 to 2, held that the failure to submit to a jury a fact that serves as a basis for a sentencing enhancement does not constitute a "structural error" that requires automatic reversal of the sentence; and that the harmless error standard of review applies to such a Blakely violations.
  
  

The Thompson Memorandum and the KPMG Lawsuit

• In Stein, Judge Kaplan of the S.D.N.Y. issued an important 83-page ruling in which he found that prosecutors had violated the constitutional rights of a group of former KPMG partners in pressuring the firm not to advance them legal fees, in compliance with the controversial “Thompson Memorandum.”
  
  
  

The Rights of Crime Victims Under the CVRA - Another Look

• In Kenna, the Ninth Circuit seemed to step back bit from a previous ruling about the scope of the Crime Victims’ Rights Act (“CVRA”), as it summarily rejected a crime victim's claim that the CVRA gives victims a right to obtain disclosure of a full presentence report.

The Counter-Intuitive Meaning of "Coercion" in the Federal Criminal Justice System

• In Miller, the Seventh Circuit held that police threats to imprison a suspect’s girlfriend and to place their child in foster care unless he confessed to his drug crimes and cooperated with the Government were not sufficiently coercive to render his confession involuntary.

Rare Suppression Motion Granted in Wiretap Case

• In Staffeldt, the Ninth Circuit upheld a district court’s suppression of evidence in a drug case that was obtained through a “facially insufficient” wiretap application.

New Parole Revocation Hearing Ordered Based on "Shoddy" Evidence

• In a sharply worded decision, the D.C. Circuit , in Singletary, ordered a new parole hearing after determining that the defendant had been denied parole based on “shoddy” evidence.

Washington v. Recuenco, No. 05-83 (U.S.S.C. June 26, 2006) (Justice Thomas)

In Apprendi v. New Jersey, 530 U. S. 466, 490 (2000), the Supreme Court announced a relatively simple and straightforward rule - namely that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum [other than the fact of a prior conviction] must be submitted to a jury, and proved beyond a reasonable doubt.” Then, in Blakely v. Washington, 542 U.S. 296, 303 (2004), the Court clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”

As the Court explained in Blakely, the Apprendi rule "reflects two longstanding tenets of common-law criminal jurisprudence: that the 'truth of every accusation' against a defendant 'should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,' 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that 'an accusation which lacks any particular fact which the law makes essential to the punishment is . . . no accusation within the requirements of the common law, and it is no accusation in reason,' 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872).” (Blakely, id., at 301-02).

Whatever common-sense and historical justifications there may have been for the Apprendi rule, it was quickly viewed by many as a threat to the cozy sentencing schemes that had developed in the United States (both state and Federal), in which the judges and the prosecutors were able to control the sentencing process more easily by using facts never charged in the indictment or submitted to the juries. In addition, concerns were quickly voiced that a too-rigid application of the Apprendi rule might wreck havoc on the courts by requiring resentencing in an enormous number of cases. Thus, almost from its inception, the courts began to shuffle and waffle in order to limit the practical effect of the landmark Apprendi rule.

The instant case is one of those shuffling and waffling decisions designed to limit the impact of Apprendi and its progeny to more acceptable levels - even if that result can only be achieved by turning a blind eye to principles of logic and consistency.

Arturo Recuenco was charged with assault with a deadly weapon. Under the assault portion of the crime, Recuenco faced a sentence of three to nine months; and the enhancement for use of a deadly weapon added a mandatory year to his sentence. As Justice Ginsburg explained in her dissent, notwithstanding the charge against Recuenco, “[b]etween trial and sentencing, respondent Arturo Recuenco’s prosecutor switched gears.” Recuenco was suddenly treated as if his crime of conviction was assault with a firearm.

Even though a firearm is a type of deadly weapon, under Washington law and practice the two crimes are separate and discrete, and they are “attended by discrete instructions” to the jury. One major difference between the two crimes is that assault with a firearm calls for a mandatory three year sentence on top of the basic sentence for assault; while, as noted above, assault with a deadly weapon calls for a one year sentence.

After Recuenco’s trial was over, the prosecutor requested, and the trial judge imposed, a three-year mandatory enhancement for use of a firearm. Recuenco objected to imposition of the firearm enhancement “without notice . . . and a jury finding.” On appeal, the State conceded that there had been error - namely a violation of the Sixth Amendment under the Apprendi/Blakely line of cases; but it urged the court to find that the error was harmless.

The Washington Supreme Court rejected the state’s arguments and concluded that the imposition of a firearm enhancement without a jury finding that Recuenco was armed with a firearm violated his Sixth Amendment right to a jury trial as defined by the Apprendi line of cases. In addition, in a different case that was decided the same day, the Washington Supreme Court declared that a Blakely error is “structural error” which “will always invalidate the conviction.” As a result, the Washington Supreme Court refused to apply harmless-error analysis to Recuenco’s sentence; and it vacated his sentence and remanded for resentencing based solely on the deadly weapon enhancement.

The Supreme Court granted certiorari to determine whether Blakely error is structural (as the Washington Supreme Court concluded), or whether it can be subject to a harmless error analysis.

In a relatively brief opinion that belies the intensity of the debate over that issue, the Court held, by a vote of 7 to 2, that the harmless error standard of review applied to a Blakely violation for failure to submit to the jury a fact that serves as a basis for a sentencing enhancement. Stating that this case was “indistinguishable” from Neder v. U.S., 527 U.S. 1 (1999) (where the Court held that harmless error, not structural error, applied to review of a district court’s failure to submit an element of the offense to the jury), Justice Thomas wrote: “Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error."

In dissent, Justice Ginsburg (joined by Justice Stevens) disagreed that Neder was controlling. She wrote that, in Neder, “the trial judge made a finding necessary to fill a gap in an incomplete jury verdict. One of the offenses involved was tax fraud; the element missing from the jury’s instruction was the materiality of the defendant’s alleged misstatements. Under the mistaken impression that materiality was a question reserved for the court, the trial judge made the finding himself.”

In contrast, in the instant case, “the charge, jury instructions, and special verdict contained no omissions; they set out completely all ingredients of the crime of second-degree assault with a deadly weapon. There is no occasion for any retrial, and no cause to displace the jury’s entirely complete verdict with, in essence, a conviction on an uncharged greater offense.”

She concluded: “In sum, Recuenco, charged with one crime (assault with a deadly weapon), was convicted of another (assault with a firearm), sans charge, jury instruction, or jury verdict. That disposition, I would hold, is incompatible with the Fifth and Sixth Amendment s, made applicable to the States by the Fourteenth Amendment. I would therefore affirm the judgment of the Supreme Court of the State of Washington.”

Kenna v. U.S. Dist. Court, No. 06-73352 (9th Cir. July 5, 2006) (Per Curiam)

In its first go-around in this case (Kenna v. U.S. District Court, 435 F.3d 1011 (9th Cir. Jan. 20, 2006) (P&J, 01/02/06)), the Ninth Circuit boldly trumpeted the broad rights of crime victims at sentencing, making the sweeping assertion that the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (“CVRA”) was enacted ”to make crime victims full participants in the criminal justice system.”

Following that ruling, the petitioner/crime victim sought a complete copy of the criminal defendant’s entire presentence report (“PSR”), stating that the CVRA gave him a general right to obtain the PSR. After the district court denied that request, the petitioner sought a writ of mandamus from the Ninth Circuit to compel the production of the PSR. In this brief, per curiam decision, the Court seemed to step back a bit from its previous ruling. It denied the writ of mandamus, stating that the district court had not abused its discretion in denying the request. The Court also observed that the petitioner “has not demonstrated that his reasons for requesting the PSR outweigh the confidentiality of the report under the traditional ‘ends of justice’ test.”

U.S. v. Miller, No. 05-2978 (7th Cir. June 7, 2006) (Judge Easterbrook)

This decision is noted for its unqualified (albeit logically suspect) endorsement of the principle that “an objectively unwarranted threat” by the police to arrest a suspect's paramour, spouse, or relative without probable cause unless the suspect agrees to plead guilty is not sufficiently coercive so as to render his subsequent statements to the police involuntary.

In this case, Taryll Miller was convicted of cocaine distribution and sentenced to 300 months in prison. On appeal, he argued that statements he had made to the police should have been suppressed as involuntary. Miller alleged, and the district court agreed, that after his arrest the police offered Taryll Miller a way to retain his freedom: come clean and cooperate in the investigation of his drug suppliers and customers - or see his girlfriend arrested and their child placed in foster care. Faced with those choices, Miller agreed to give the police the information it wanted; and that information ultimately led to his own conviction.

The Seventh Circuit concluded that, for a series of reasons, the police threats did not render Miller’s statements involuntary. First, it said, “a modicum of trickery is tolerable during criminal investigations.” Second, it said that its holding was governed by its earlier decision in Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994), where the Court held that a promise to release a suspect's mother from custody if he confessed did not make his statement involuntary. The Court distinguished those threats to arrest the mother from “hostage-taking,” which it agreed would be unduly coercive.

Finally, the Court concluded that “an offer that makes the recipient better off cannot be condemned as coercive.” Using logic that we find difficult to follow, it rationalized that “the clear articulation” by the police of the options that were available to Miller made his choice to confess “better informed and thus more rather than less voluntary.”

Now, that’s a pretty aggressive positive spin!!

Singletary v. Reilly, No. 04-7013 (D.C.Cir. July 7, 2006) (Judge Brown)

In this decision, her first major criminal decision since her appointment to the D.C. Circuit last summer, Judge Janice Rogers Brown has probably surprised a lot of people. Her contentious, controversial and long-debated appointment to the Court was vehemently opposed by more than 150 state and national organizations, including the NAACP, Sierra Club, and NOW, all of whom accused her of a pervasive hostility to affirmative action, civil rights, and criminal rights. (See, e.g., the Alliance of Justice’s website, IndependentJudiciary).

While one decision does little to allay the many concerns about Judge Brown’s radical views on criminal law, in this case she exhibited a surprising (at least to us) sensitivity to the autocratic policies of the U.S. Parole Commission which, since Congress legislated in out of existence in 1984 when it abolished parole as sentencing practice within the Federal system, has done whatever it takes to keep the parole system alive and well-stocked with parolees just to perpetuate its lucrative existence.

Here, the D.C. Circuit took the incredibly rare step of reversing the Parole Commission and holding that a defendant was entitled to a new parole revocation hearing. Here is how Judge Brown’s opinion starts:

“Charles Singletary's parole was revoked in 1996 based on his alleged participation in a murder. The evidence tying Singletary to this offense - for which he has been imprisoned for the last ten years - consisted solely of hearsay testimony relayed by a prosecutor and an investigating detective. The reliability of the hearsay, most of it multilayered, was never established, and its accuracy remains open to serious questions. A parole revocation hearing is not a criminal trial, and the same standards of proof and admissibility of evidence do not apply. Yet though the government is not required to carry a heavy burden in such proceedings, it cannot return a parolee to prison based on a record as shoddy as this one. We therefore conclude that Singletary is entitled to a new parole revocation hearing.”

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