Vol. 13, No 38	Covering Cases Published in the Advance Sheets through Sept. 18, 2006

Anti-Terrorism Issues

• The highly controversial Military Commissions Act has now been signed into law; and, to help our subscribers keep track of the latest developments and the many challenges that are expected to the constitutionality of that law, we have started a new feature on our Website where we will post a collection of legal resources and other materials pertaining to this law, which some have described as “one of the worst civil liberties measures ever enacted in American history.”
  
  
  
• In the Kahane Chai case, the D.C. Circuit rejected a series of challenges by a group of Israeli organizations that had been designated as “Foreign Terrorist Organizations” by the Department of State, noting that, by statute, the courts have limited powers to set aside such designations and essentially must defer to the findings and conclusions reached by the Secretary of State in deciding whether the activities of such organizations should be subjected to criminal sanctions.
  
  
  

Booker and Sentencing Issues

• In Malouf, the First Circuit held that the imposition of a mandatory minimum sentence based on a sentencing court’s determination of the quantity of drugs by a mere preponderance of the evidence did not violate the principles laid down by the Supreme Court Blakely v. Washington and U.S. v. Booker. The Court held that drug quantity is a sentencing factor, not an element of the crime; and that the Due Process Clause does not require proof beyond a reasonable doubt to impose a mandatory minimum sentence that does not “alter the maximum penalty for the crime committed.”
  
  
  
• In Bullion, the Seventh Circuit summarily rejected an appeal by a defendant who argued that his sentence, which was substantially above the Guideline range, was unreasonable. While that result is not noteworthy, Judge Posner’s gratuitous, papal-like pronouncement that there was “no basis” for the defendant’s “frivolous” appeal set off an explosion of outraged commentary from Prof. Berman.
  
  
  

Kenneth Lay's Conviction Vacated Due to His Death Before Sentencing and Appeal

• In Lay, Judge Lake of the S.D.Tex. granted a motion by the Estate of Kenneth Lay to vacate the conviction of the late Enron founder on the grounds that his death before he had even been sentenced deprived him of his right to challenge his conviction. In his 13-page decision, Judge Lake held that established precedent requires abatement or revocation of a conviction if a defendant dies without having had an opportunity to appeal.
  
  
  

The Fine Line Between Catching and Entrapping Sexual Predators

• The Brand case from the Second Circuit is an interesting child pornography case that shows some of the inner workings of the porn police on the Internet and provides a timely analysis of various aspects of the affirmative defense of entrapment in cases where police agents act as the juvenile target.

The Military Commissions Act of 2006
A New Special Feature on FedCrimLaw.com
at www.fedcrimlaw.com/members/anti-terrorism/MilitaryCommissionsAct/Index-MCA.cfm

On October 17, 2006, President Bush signed into law the highly controversial Military Commissions Act of 2006 (“MCA”). The MCA not only sets up special military tribunals to try the many persons that have been seized and labeled as “enemy combatants” or “terrorists,” but also establishes tough interrogation techniques for terror suspects and strips the Federal courts of jurisdiction to hear complaints by any such detainees about the reasons for or the conditions of their detention.

Because there is nothing in the MCA that requires that alleged terrorists be given their day in court even before the new military commissions, the U.S. could hold any person it labels a terrorist for the rest of his or her life without ever providing a hearing and with no court ever having jurisdiction to review the matter.

The American Civil Liberties Union has stated that the MCA is "one of the worst civil liberties measures ever enacted in American history." In a press release, ACLU Executive Director Anthony D. Romero stated:

"The president can now, with the approval of Congress, indefinitely hold people without charge, take away protections against horrific abuse, put people on trial based on hearsay evidence, authorize trials that can sentence people to death based on testimony literally beaten out of witnesses, and slam shut the courthouse door for habeas petitions."

Many commentators have predicted that the MCA is in for a long series of challenges in both the courts and in Congress - although, even if the Democrats were to retake both the House and the Senate, President Bush would certainly veto any attempt to amend or repeal this law - which he has called “vital” for his war on terror.

Because we expect the legal challenges to the MCA to occupy a lot the time and attention of the courts for a long time to come, we have set up a special section on our Website where we have posted a number of resources relating to the MCA and where we will continue to post, on a timely basis, the latest and most significant developments relating to that law.

U.S. v. Malouf, No. 05-2245 (1st Cir. Oct. 13, 2006) (Judge Torruela)

In U.S. v. Malouf, 377 F.Supp.2d 315 (D.Mass. June 14, 2005) (Malouf I), Judge Nancy Gertner (D.Mass.) declined to impose a mandatory minimum sentence on a drug dealer on the grounds that the Government had not proven the drug quantity required to trigger the mandatory minimum sentence beyond a reasonable doubt. Thus, she imposed a sentence of 60 months, rather than the mandatory minimum sentence of ten years (120 months).

In her ruling, Judge Gertner reasoned that the Supreme Court’s rulings in Blakely v. Washington, 542 U.S. 296 (2004) and U.S. v. Booker, 543 U.S. 220 (2005) had actually “broadened” its prior ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000) “by requiring that all facts ‘which the law makes essential to the punishment’ be subject to Sixth Amendment protections.” (Malouf I, id., at 324). She reasoned that the quantity of drugs must be proved beyond a reasonable doubt “[i]f a substantial sentence hinges on a finding of a specific quantity” because in such cases courts “should have a high degree of confidence in this finding.” (Malouf I, id., at 329).

She also held that 21 U.S.C. § 841, the applicable mandatory minimum statute, “is an offense-defining statutory provision, all elements of which must be tried before the jury.” (Malouf I, id., at 328). Finally, she concluded that she was not bound by the First Circuit’s existing precedent to the contrary, U.S. v. Goodine, 326 F.3d 26 (1st Cir. 2003) (which was decided after Apprendi but before Blakely and Booker), because that decision was based on Supreme Court precedent “which is crumbling.” (Malouf I., id., at 325).

The Government appealed Judge Gertner’s ruling, and the First Circuit reversed and remanded for resentencing . The Court noted that, ten months after the ruling in Malouf I, the First Circuit had ruled, in U.S. v. Lizardo, 445 F.3d 73, 90 (1st Cir. 2006), that Booker left intact the Supreme Court’s precedents “which allowed the use of judicially found facts to increase a mandatory minimum sentence” and thus Goodine was still good law.

The Court also rejected Judge Gertner’s alternative finding that even if drug quantity is a sentencing factor under § 841, it must be proven beyond a reasonable doubt because of the protections of the Due Process Clause. The Court stated:

“The district court's analysis and conclusion are foreclosed by the Supreme Court's decision in McMillan [v. Pennsylvania, 477 U.S. 79 (1986)]. In that case, the Court considered the constitutionality of a Pennsylvania statute that required a sentencing court to impose a five-year minimum sentence if it found by a preponderance of the evidence that the defendant ‘visibly possessed a firearm’ during the commission of certain enumerated offenses. 477 U.S. at 81. McMillan held that due process did not require visible possession of a firearm to be treated as an element of the offense that must be proved beyond a reasonable doubt. The Court noted that ‘sentencing courts have always operated without constitutionally imposed burdens of proof’ and that the visible possession requirement, despite triggering a mandatory minimum penalty, did not implicate the Due Process Clause because it ‘neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty.’ Id. at 92 n.8, 87-88. The same is true here with respect to drug quantity, insofar as it determines the mandatory minimum sentence.”

U.S. v. Bullion, No. 06-1523 (7th Cir. Oct. 19, 2006) (Judge Posner)

Once again the Seventh Circuit has routinely affirmed a substantially above-Guidelines sentence; and once again Judge Posner has used such excessively sweeping language to explain his ruling that his words evoked an immediate outcry of frustration and disbelief from some noted commentators.

For example, upon reading this decision, Prof. Douglas Berman, who is generally recognized as the reigning authority on sentencing law in the United States, immediately posted a highly critical commentary on his Sentencing Law and Policy blog, entitled “Today’s [Booker] opinion from Judge Posner is so truly bizarre and harmful that it took my breath away.”

(Judge Posner’s proclivity at making shock and awe statements in his legal opinions and numerous books sometimes make it seem like he uses his pithy pronouncements to perpetuate and give credence to the aura of the title once bestowed on him by The New York Sun as a leading candidate for “The World’s Foremost Authority.” See, www.law.uchicago.edu/news/posner-authority.html.)

In the instant case, the defendant, James Bullion, pled guilty to being a felon in possession of a firearm. The Guidelines range for his sentence was 188 to 235 months; but the district court, citing the defendant’s criminal history (which Judge Posner called “frightening”) sentenced him to 264 months - and increase of as much as 76 months.

The defendant appealed his sentence, arguing principally that (a) his 22-year sentence was effectively a life sentence and therefore excessive under the circumstances of his age (58) and his poor health, and (b) because the tendency to commit crimes diminishes with age, “a 58 year old need not be given a 22-year sentence in order to be kept out of circulation until he is safe.”

The Seventh Circuit rejected both arguments; but the furor over this decision was created by some of Judge Posner’s off-hand and ill-thought comments contained in the very first paragraph of his decision:

“There was no basis for the defendant's challenging the exercise of discretion by the sentencing judge in this case--and, we add, in cases like it. Not because there were no mitigating factors, but because the balance that the judge struck between them and the aggravating factors was so far inside the outer bounds of his sentencing discretion as to make the claim of unreasonableness frivolous and the appeal a compelling candidate for an Anders brief.”

That language infuriated Prof. Berman, who caustically commented that he couldn’t even “imagine Judge Posner ever accusing the Government of filing a frivolous appeal when it complains about a below-guideline sentence.” But the essence of his criticism was directed at Judge Posner’s sweeping suggestion that an appeal from a district judge’s substantially-above-guidelines sentence “was so frivolous as to require an Anders brief.” With unusually blunt criticism, he wrote:

“Though Judge Posner likes to harp on the vagueness of 18 U.S.C. § 3553(a), I continue to wonder if he has ever really thought about its central command together with his eagerness to presume the guidelines reasonable. Section 3553(a) commands the sentencing court to ‘impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.’ If the guidelines are presumptively reasonable in light of this command, that means in this case a within-guideline sentence of 188 months would have been presumptively ‘sufficient but not greater than necessary’ for the defendant.

“How then can it be frivolous — not just without merit, but frivolous — for the defendant to contest a sentence that requires six more years of imprisonment?!? Consider also the reality that the fact that the defendant in this case was being sentence after pleading guilty to just a firearm possession offense. Wow. Even though Judge Posner is clearly quite hostile to defendants exerting their appellate rights after Booker, it seems quite reckless (and harmful) for him to assert that a decision to appeal an above-guideline sentence is frivolous!”

U.S. v. Brand, No. 05-4155-cr (2nd Cir. Oct. 19, 2006) (Judge Wesley)

This decision presents an eye-opening view of the scope of the activities and the sophistication of the porn police in searching for child predators who lurk on the Internet. It also presents a timely review of the affirmative defense of entrapment in a world where the line between catching child predators and entrapping them has become increasingly fine.

In this case, thirty-six year old voice instructor Matthew Branch (screen name "Tempoteech") met 13-year old “Sara” in AOL’s "I Love Older Men" chatroom. The two became fast friends, with Brand proposing to give her voice lessons and marry her when she turned 18. Sara then introduced Brand to her friend ”Julie”, who also claimed to be 13 years old. The instant message conversation between Brand and “Julie” quickly became much more explicit; and the two eventually arranged to meet at the Port Authority bus terminal in New York City.

Of course, “Sara” and “Julie” were really adults posing as teenagers. "Sara" was actually a private citizen who trolls the internet for men like Brand and then passes them on to FBI agents, who then collect evidence for criminal charges using internet personae like "Julie." And, naturally, when Brand showed up at the Port Authority terminal with condoms in his car, he was arrested. He immediately waived his Miranda rights and proceeded to make numerous, highly damaging admissions. For example, he admitted that he had asked “Julie” if he could lick “her breast and crotch” and he promised that he would not get her pregnant because he would use a condom. Brand was then charged with a series of child predator crimes.

At trial, Brand argued that the government had entrapped him into traveling to New York to engage in illicit sexual conduct with “Julie” and that it was she who had broached the subject of sex. The district court agreed that Brand had made a sufficient showing of government inducement to warrant an entrapment charge to the jury; and it thus ruled that the burden had therefore shifted to the government to prove Brand’s predisposition to commit the charged crimes.

The jury didn’t buy Brand’s entrapment defense, and he was convicted of attempted enticement of a minor. On appeal, Brand argued, inter alia, that the government’s evidence was insufficient as a matter of law to establish that he was predisposed to commit the crimes charged independent of the government’s actions; and that the district court’s jury instructions with respect to his entrapment defense were erroneous.

The Second Circuit rejected all of Brand’s arguments and affirmed his convictions. It first noted that:

“Under the entrapment doctrine, ‘[g]overnment agents may not originate a criminal design, implant in an innocent person's mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute." U.S. v. Jacobson, 503 U.S. 540, 548 (1992) [Sic! Should be Jacobson v. U.S.]. If the government undertakes such measures, the ‘stealth and strategy’ of particular criminal investigations can, under certain circumstances, become ‘as objectionable police methods as the coerced confession and the unlawful search.’ Sherman v. U.S., 356 U.S. 369, 372 (1958).”

The Court then continued:

“Entrapment is an affirmative defense that requires a defendant to prove by a preponderance of the evidence the government's inducement to commit the crime. If a defendant carries his burden of establishing entrapment, the government can still defeat the defense of entrapment if it can show that a defendant was predisposed to commit the crime. If a defendant presents credible evidence of government inducement, then the prosecutor must show predisposition beyond a reasonable doubt. Thus, the inquiry centers on: ‘(1) [whether] the agent induce[d] the accused to commit the offence charged in the indictment; [and] (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence’." (Internal citations omitted).

Applying those principles to the facts of this case, the Court held that “more than ample evidence exists to demonstrate Brand’s predisposition.” For example, it noted that Brand’s "prompt response" to "Julie’s" overtures showed that he was "ready and willing to commit the crime charged and awaiting a propitious opportunity to do so."

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