Vol. 13, No. 24	Covering Cases Published in the Advance Sheets through June 12, 2006

Updates

• The Supreme Court’s recent epic decision in Hamdan v. Rumsfeld has created a maelstrom in the political and legislative arenas. As expected, it set off an intense debate about the impact of that ruling on many of the Government’s anti-terror programs; and it has led to some preliminary concessions from the Administration on the rights of the detainees at Guantanamo Bay. But more significantly it has also triggered a multi-faceted debate about the legal basis for the NSA’s warrantless spying program on American citizens on American soil; and, as many of the articles that we have posted online show, that debate is quickly turning into a major political battle.
  
  
  
• Judge Kaplan’s (S.D.N.Y.) recent decision in the Stein case (in which he held that Federal prosecutors had violated the constitutional rights of a group of former KPMG employees by pressuring the firm not to advance them legal fees) has also set off a flurry of legal maneuvers by the Government and the defendants, including a request to Judge Kaplan from the prosecutors that he expunge from his ruling all the nasty things he said about them (a motion that Judge Kaplan summarily denied).
  
  

Fourth Amendment: Sealed Affidavits and the Particularity Requirement

• In Baranski, the Sixth Circuit, sitting en banc, divided sharply on the question of whether an affidavit that is kept under seal satisfies the Fourth Amendment’s requirement that the search warrant must describe with particularity the items to be seized; but a 7-to-6 majority ultimately concluded that the fact that the warrant incorporates the sealed affidavit by reference means that it does not violate the Fourth Amendment.
  
  

Sentencing Issues

• Not surprisingly, the Eleventh Circuit railed against some surprisingly low sentences imposed in two recent white collar crime cases - Martin and Crisp. In Martin, the Court vacated a 7 day prison sentence, saying it was “shockingly short” and “wholly fails” to serve the purposes of criminal sentences; and in Crisp, the court vacated as unreasonable a 5-hour sentence, stating that the sentence wasn’t even a “slap on the wrist.”
  
  
  
• The Meyer case from the Eighth Circuit is noted for Judge Heaney’s typically outspoken - but clearly astute - comments about the growing tendency of the appellate courts to routinely approve above-Guidelines sentences while routinely disapproving below-Guidelines sentences.
  
  

• In Reeks, Judge Woodcock (D.Me.) set forth a comprehensive review of many of the complex legal and practical considerations that come into play when a Federal judge considers whether to impose a sentence concurrently with or consecutively to a state sentence that has not yet been imposed.

Baranski v. 15 Unknown Agents of the ATF, 03-5582 (6th Cir., July 3, 2006) (en banc) (Judge Sutton)

The Fourth Amendment provides in part that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." In this case, several agents of the Bureau of Alcohol, Tobacco and Firearms (ATF) obtained a search warrant that satisfied the particularity requirements of the Fourth Amendment at the time the magistrate issued the warrant. However, by the time the agents conducted the search, a supporting affidavit that was cross-referenced in the warrant and that particularly described the things to be seized had been placed under seal and thus was not present during the search.

In 2001, the ATF obtained a search warrant to search a bonded warehouse in Louisville, KY that was owned by Pars International (one of the plaintiffs in the instant case). The warehouse was being used by Keith Baranski, a licensed firearms dealer, to store machine guns that he holding for sale. When the ATF agents arrived at the warehouse to commence their search, they were met by Baranski’s lawyer who demanded to see the warrant and the supporting affidavit which described with particularity the guns covered by the warrant. The ATF agents said they could not show him the affidavit because it was under seal. At that point, the attorney complained that the search was illegal because the warrant itself failed to describe with particularity what the agents could seize.

Nevertheless, the search proceeded and the Government seized 372 machine guns and 12 crates of firearm accessories belonging to Baranski. Three months later, Baranski and Pars International commenced the instant money-damages action in Kentucky against the ATF agents under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). That action was stayed initially, pending the completion of a criminal investigation of Baranski in Missouri. He was ultimately indicted and convicted in Missouri on various gun charges; and he was sentenced to 60 months in prison.

After Baranski was convicted, the district court lifted the stay on the instant Bivens action; but it concluded that the ATF agents were entitled to qualified immunity on the grounds that the search did not violate the Fourth Amendment. On appeal, a divided panel from the Sixth Circuit reversed the grant of immunity. Relying on the Supreme Court's intervening decision in Groh v. Ramirez, 540 U.S. 551 (2004), the panel concluded that the warrant was facially deficient because the affidavit referenced in the warrant and describing the items to be seized was under seal and was not attached to the warrant when the search was conducted. (See, Baranski v. Fifteen Unknown Agents, 401 F.3d 419, 429 (6th Cir. 2005) (“Baranski I”)).

The Sixth Circuit then granted a rehearing en banc; and by a vote of 9-to-4, it reversed Baranski I. The judges, however, were badly divided on the question of whether an affidavit that is kept under seal satisfies the Fourth Amendment’s requirement that search warrant must describe with particularity the items to be seized.

Seven judges concluded that the fact that the warrant incorporates the sealed affidavit by reference means that it does not violate the Fourth Amendment. In any event, those seven judges concluded that the ATF agents were entitled to qualified immunity, as any violation is not clearly established. Two additional judges concurred in the latter aspect of majority’s holding - but not the first part. Finally, four judges, including Judge Clay who authored both the decision in Baranski I and the en banc dissent, argued that the warrant is defective under Groh, regardless of whether the items to be seized are listed in a separate document.

In a lengthy opinion that is noted for its excellent and detailed analysis of Groh, the dissenters argued that “a government official is not entitled to qualified immunity if the plaintiff alleges facts that, if true, establish that the official violated the plaintiff's clearly established federal rights.” Further, they concluded, “the Groh opinion makes it inescapably clear that a warrant cannot satisfy the particularity clause of the Fourth Amendment by reference to an affidavit that is not present at the scene of the search.”

U.S. v. Martin, No. 05-16645 (11th Cir. July 11, 2006) (Judge Hull)
U.S. v. Crisp, No. 05-12304 (11th Cir. July 7, 2006) (Judge Carnes)

In these two decisions, the Eleventh Circuit cracked down - hard - on what it perceived to be excessively lenient sentences imposed for white collar crimes

In Martin, the Court addressed the Government’s second appeal from the sentence imposed by Judge U.W. Clemon on former HealthSouth CFO Michael Martin, who pled guilty to what the Court called a “massive” conspiracy to commit securities fraud and mail fraud and to falsify the books and records of HealthSouth. The parties agreed that Martin’s Guideline sentencing range was 108-135 months; but, because he provided substantial assistance to the Government, he was eligible for a sentence reduction under the provisions of U.S.S.G. § 5K1.1. At his first sentencing, Judge Clemon departed far beyond what the Government recommended and imposed a sentence of five years probation.

The Eleventh Circuit vacated that sentence “because the district court failed to specify reasons for the extraordinary departure under § 5K1.1.” On remand, Judge Clemon imposed a sentence of 7 days imprisonment. Again the Government appealed, and again the Eleventh Circuit vacated the sentence - this time directing that the case be remanded to a different judge because the Court found it likely that Judge Clemon “would have difficulty putting his previous views and findings aside.”

The Court stated that the 7 day sentence was “shockingly short,” and that “[i]t is not remotely commensurate with the seriousness and extensive scale of the crimes and does not promote respect for the law, does not provide just punishment for the offense, as § 3553(a)(2)(A) requires, and does not afford adequate deterrence to the criminal conduct here, as § 3553(a)(2)(B) mandates.”

In Crisp, the defendant pled guilty to participating in a fraudulent scheme that bilked a bank out of nearly half a million dollars. Crisp’s Guideline sentencing range was 24-30 months; but he also provided substantial assistance to the Government which led to the prosecution of a co-conspirator. In its § 5K1.1 motion, the Government recommended a downward departure to a Guidelines range of 12-15 months. The district court first imposed a sentence of probation; and, when the Government objected, stating that the offense of conviction required at least some period of incarceration, the district court relented and modified the sentence to include the 5 hours that Crisp had spent in the custody of the U.S. Marshals.

On appeal, the Government argued that the 5 hour sentence “farcical.” While the Eleventh Circuit said that it didn’t have to go “that far,” it agreed that the 5 hour sentence was unreasonable. It stated that “[w]hile a five-hour sentence is not probation, neither is it a real sentence of incarceration.” It also emphasized that the defendant “did not did not receive so much as a slap on the wrist [for his serious crimes] - it was more like a soft pat.”

Finally, noting that the district court had placed great weight on the restitution paid by the defendant, the Court stated: “The district court focused single-mindedly on the goal of restitution to the detriment of all of the other sentencing factors. An unreasonable approach produced an unreasonable sentence.”

U.S. v. Meyer, No. 06-1283 (8th Cir. July 11, 2006) (Judge Heaney)

In this case, the defendant pled guilty to one count of using a minor to produce a sexually explicit videotape, in violation of 18 U.S.C. § 2251(a). At the time Meyer committed his crime, the applicable version of the Guidelines called for a sentencing range of 121-151 months. However, at sentencing, the district court noted that, under the then-current version of the Guidelines, Meyer would have faced a mandatory 360 month sentence. Based on that, the district court imposed a sentence of 270 months - a 50% increase from Meyer’s Guideline range.

Meyer appealed his sentence, arguing that it was unreasonable. The Eighth Circuit disagreed, stating:

“While our court cannot retrospectively apply enhancing amendments to the guidelines in order to calculate the defendant's guidelines range, such amendments are instructive as to whether a sentence outside of the guidelines falls within the range of reasonableness. . . . We cannot say that a 270-month sentence is unreasonable because the offense conduct occurred in 2003, where that same sentence would have represented a significant downward variance just a year later. Thus, while certainly not obligated to impose a sentence outside the guidelines range, the district court was within its discretion to do so.”

Apart from that ruling, this decision is particularly noted for Judge Heaney’s comments, in footnote 3, in which he expressed real concerns - expressed by many commentators - stemming from the fact that upward variances sought by the Government are routinely approved at a disproportionately high rate, while downward variances which favor defendants are approved in a disproportionately low number of cases. He wrote:

“In the year and a half since the Supreme Court found the mandatory federal guidelines regime unconstitutional in U.S. v. Booker, 543 U.S. 220 (2005), our court has affirmed twelve sentences that exceeded the recommended guidelines range, including the instant case, but reversed only one.

“Meanwhile, when it comes to sentences that are lower than the guidelines range, just the opposite trend has emerged. Our circuit has reversed sixteen of these sentences, and has affirmed only three. . . .

“Affirming upward variances at a rate of 92.3% while affirming downward variances at a rate of 15.8% could hardly be viewed as uniform treatment, and seems contrary to 18 U.S.C. § 3553(a)(6)'s concern with eliminating unwarranted sentence disparity. It is consistent, however, with our circuit's disposition of sentence departures before Booker. See U.S. v. Yirkovsky, 338 F.3d 936, 942-44 (8th Cir. 2003) (Heaney, J., dissenting) (noting that the Eighth Circuit affirmed upward departures at a rate much higher than with downward departures). It is difficult to accept that § 3553(a)(6) is satisfied where a circuit treats sentencing appeals in a consistently disparate manner.”

U.S. v. Reeks, No. CR-04-82-B-W (D.Me. July 7, 2006) (Judge Woodcock)

The rules regarding the timing and nature of sentences imposed on defendants who face sentencing in both federal and state courts have always been somewhat confusing - in part because of often dramatically different punishment schemes and customs that apply under the different state and Federal laws; in part because the Federal laws relating to the imposition of concurrent or consecutive terms of imprisonment are unclear; and in part because the Circuits themselves disagree about whether the principal Federal statute even permits a Federal court to impose a consecutive sentence on a yet-to-be-imposed state sentence.

Here, in the context of what the court called “an overly strategic, non-substantive motion” by the Government to delay the sentencing hearing of Christopher Reeks until after the state of Maine had sentenced him on pending state charges arising out of the same incident, Judge Woodcock has presented a clear and illuminating guide to some of those complex issues.

In 2005, Reeks was ordered to serve a three year terms of supervised release for the offense of possession of a firearm by a prohibited person. The following year, Reeks was arrested and charged by the state of Maine with two counts of aggravated assault. Thereafter, the Feds petitioned Judge Woodcock to revoke Reeks’ term of supervised release, on the grounds that he had violated its terms and conditions by engaging in the new criminal conduct that led to the state aggravated assault charges.

Reeks then reached an agreement with the Maine D.A. under which the parties agreed to recommend to the state judge that any state sentence should run concurrently with any Federal sentence on the revocation. At that point, the Feds moved to continue Reeks’ sentencing on the Federal charges so Judge Woodcock could consider the state sentence in determining the extent to which his sentence on the revocation should be concurrent with or consecutive to the state sentence. Reeks objected to any delay in his Federal sentencing, arguing that he has a right to a speedy revocation hearing.

Essentially, as Judge Woodcock noted, the dispute between the parties centered around whether Reeks “is more or less likely to face additional federal time in jail because of the timing of the state and federal sentencings.” He then continued:

“Underlying the question of timing are the perceptions that if the state judge imposes a sentence first, the federal judge is more likely to impose some consecutive portion of the revocation sentence in accordance with Sentencing Commission policy, but if the state judge imposes a sentence second, the state judge is less likely to make any portion of the state sentence consecutive to the federal sentence, particularly if the state prosecutor and defense counsel recommend against it.”

At the outset, Judge Woodcock rejected Reek’s contention that he was entitled to a speedy revocation hearing because Reeks was first taken into state custody and remain there. Accordingly, “to the extent he has a right to a speedy revocation hearing, it does not become effective until he is in federal custody.”

Next, the Court addressed the issue of whether a Federal court has the authority to require its sentence to be served consecutively to a yet to be imposed state sentence. The governing Federal statute - 18 U.S.C. § 3584(a) - provides that if multiple terms of imprisonment are imposed on a defendant at the same time, “the terms may run concurrently or consecutively.” However, the Court noted that at least three Circuits (the Sixth, Seventh and Ninth) have held that § 3584(a) does not permit Federal courts to impose a consecutive sentence on a yet to be imposed state sentence - while four other Circuits (the Fifth, Eighth, Tenth and Eleventh) have ruled otherwise. Although the First Circuit has not yet ruled on that issue, Judge Woodcock concluded that it was not necessary the resolve that issue to decide the instant case.

Ultimately, for a number of reasons, Judge Woodcock decided not to grant the Government’s motion to delay Reeks’ sentencing. He noted, for example, that it is the Government that controls the timing of its petition for revocation - and, once those charges are filed, “it is difficult to fault a defendant who wishes to admit the charges and serve his sentence.”

Additionally, the Court noted that the facts of this case “highlight[ ] the need for comity and discourages this Court from actively interceding by continuing a revocation sentencing in an effort to impose federal policy concerns over state policy considerations.” Thus, for example, it stated:

“To the extent that the Government's argument is based on the notion that the state court will not accord due weight to the federal sentencing policy, this Court is not prepared to draw any such conclusion. If they are allowed to do so, Maine courts are at least as capable of making reasoned judgments about the impact of previously-imposed federal sentences on their state sentencing decisions as this Court would be in making similar judgments about the impact of previously-imposed state sentences.”

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