Vol. 13, Nos. 41 & 42	Covering Cases Published in the Advance Sheets through Oct. 16, 2006

New Supreme Court Decision on a Disputed Jury Instruction in a Capital Case

• The Supreme Court opened its 2006-2007 term with a narrow 5-to-4 decision in the Belmontes case, where it reinstated a death sentence that a California jury had imposed in 1982 and that was twice overturned by the Ninth Circuit. Essentially, the majority held that a disputed “catch-all” jury instruction had not improperly dissuaded the jury from considering mitigating evidence other than that which related to the defendant’s guilt in deciding whether to impose the death penalty versus life in prison.
  
  

"I Plead the Fifth" Held to Be Too Ambiguous to Invoke Miranda Rights

• The Anderson decision from the Ninth Circuit is one of those far-fetched judicial wonders that rests on a premise of hair-splitting absurdity. Here a divided panel concluded that, when a defendant states to a policeman “I plead the Fifth,” that statement is not a sufficiently clear and unambiguous invocation of the defendant’s right to remain silent as to bar further questioning under Miranda - at least in the context of an appeal under the rigid strictures of the AEDPA.
  
  

Booker: The Vanishing Glimmers of Hope

• The Fanfan case is another stark reminder of how far the appellate courts have gone in transforming the Supreme Court’s decision in U.S. v. Booker from one of major significance to virtual irrelevance in the sentencing process. Here, after a resentencing, the First Circuit approved an 11-year sentence increase for one of the defendants in Booker, despite his apparent “victory” at the Supreme Court.
  
  

Child Pornography and the Meaning of "Sexually Explicit Conduct"

• The two Frabizio decisions from the D.Mass. and the First Circuit are noted for their detailed and informative review of a number of separate but significant issues under the Child Pornography Prevention Act.

The Thompson Memorandum and the KPMG Tax Shelter Case: Back On Hold Again

• In the Stein case, Judge Kaplan (S.D.N.Y.) has once again put the Government’s prosecution in the huge KPMG tax shelter case on hold, citing concerns about the individual defendants’ ability to receive a fair trial due to the Government’s pressure on the firm to stop paying their legal fees.

More on the Rampant Judicial Hostility of Immigration Judges

• The Islam case from the Second Circuit and the Kim case from the First Circuit are two of the latest examples of the astonishing levels of bias, confusion and judicial hostility that exist in many of America’s so-called immigration “courts.”

Anderson v. Terhune, No. 04-17237 (9th Cir. Nov. 8, 2006) (Judge Hogan)

In Miranda v. Arizona, 384 U.S. 436, 473-74 (1966), the Supreme Court held that if a suspect indicates in any manner during questioning that he wishes to remain silent, the interrogation must cease. The Court reasoned that any statement taken after invocation of the Fifth Amendment’s self-incrimination privilege would constitute the product of compulsion. That doctrine is so well known that Judge Margaret McKeown wrote, in the opening salvo of her dissent:

“It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like 'Law & Order' to movies such as 'Guys and Dolls,' we are steeped in the culture that knows a person in custody has 'the right to remain silent.' Miranda is practically a household word. And surely, when a criminal defendant says, 'I plead the Fifth,' it doesn't take a trained linguist, a Ph.D, or a lawyer to know what he meant."

Despite that general understanding about the scope of Miranda, in this case a divided panel from the Ninth Circuit held that a defendant’s statement, during an interrogation, that “I plead the fifth” is insufficient to invoke the right to remain silent.

Here, the petitioner, Jerome Anderson, confessed to a murder after being interrogated for three and a half hours. At the outset of his interrogation, Anderson told the police officer that he did not want to talk to him. But the officer continued to question him. And when Anderson said, "I plead the Fifth," the officer responded, "Plead the Fifth? What’s that?".

The California state courts decided that the continued questioning of Anderson did not violate his Miranda rights, because his statements were ambiguous. Specifically, "while the defendant articulated words that could, in isolation, be viewed as an invocation of his right to remain silent, given the totality of the circumstances, the defendant did not intend to terminate the interview." In other words, because Anderson continued to answer questions, he must not have intended to invoke his Fifth Amendment right to silence when he said "I plead the Fifth."

After exhausting his state appeals, Anderson sought habeas relief from the Federal courts pursuant to 28 U.S.C. § 2254; and, when the district court denied his petition, this appeal ensued. In fairness, somewhat complicating the question of the sufficiency of Anderson’s invocation of his Miranda rights, is that this appeal was governed by the strict and limiting standards of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which substantially modified a Federal habeas court's role in reviewing state prisoner applications.

Under the AEDPA, a Federal court cannot overturn a state-court conclusion unless it finds that ruling to be "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." (28 U.S.C. § 2254(d)(2)). In addition, for the purposes of the AEDPA, state-court factual findings must be "presumed to be correct," and the habeas petitioner "must rebut[] the presumption of correctness by clear and convincing evidence." (28 U.S.C. § 2254(e)(1))

Applying those standards, District Judge Hogan, writing for the majority, explained that the AEDPA requires the Court to defer to the state court’s finding of ambiguity. He concluded that the police officer in this case was quizzing Anderson about his drug use, not specifically about the murder. Therefore, he concluded, the officer’s continued questioning of Anderson was merely to clarify what Anderson did not want to talk about. Because Anderson responded to subsequent police questioning, his statements that he did not want to talk and that he pleaded the Fifth could properly be construed as ambiguous.

A dumbfounded Judge McKeown dissented. In an emotional and noteworthy dissent, she stated: “It is rare to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent.” Then she asked: “What about the words ‘I plead the Fifth’ would be unclear, ambiguous, or confusing to a reasonable officer?”

She conceded that the Supreme Court has countenanced “clarifying questions”; but she emphasized that the Court’s jurisprudence limits such questions only to ascertain whether the suspect actually invoked the right to remain silent. She also concluded that the police officer’s tactic of “playing dumb” could hardly be described as a “clarifying question.” She then continued:

“[U]nder the majority's interpretation of Miranda and its progeny, every time a suspect unequivocally invokes the right to remain silent, the police can ask follow-up questions to clarify whether he really, really wants to invoke the right and to parse the subject matter--‘what specifically do you not want to talk about?’ The majority's holding allows the police to turn the Fifth Amendment into a game of ‘Twenty Questions,’ permitting the police to continue the interrogation and forcing the suspect to take a multiple choice quiz. Such a practice is tantamount to endless re-interrogation.”

Finally, Judge McKeown stated that she would grant the writ notwithstanding the limiting standards imposed by the AEDPA. “Looking at this case through the AEDPA lens of deference does nothing to change my conclusions. The state court’s decision to ignore an unambiguous declaration of the right to remain silent is directly contrary to Miranda.”

Clearly Judge McKeown will not be President Bush’s next nominee to the Supreme Court.

U.S. v. Fanfan, No. 05-1826 (1st Cir. Nov. 8, 2006) (Judge Boudin)

It is surely poetic justice that one of the lead defendants in the birth of the Booker revolution is now the lead defendant in a decision that seems to cement the virtual demise of that revolution. Duncan Fanfan was one of the two defendants in the Supreme Court’s consolidated decision in U.S. v. Booker, 543 U.S. 220 (2005); and, by all accounts, he was seen as the winner of an important sentencing principle.

In 2003, Fanfan had been convicted at a jury trial of a single count of conspiracy to distribute more than 500 grams of cocaine hydrochoride. Fanfan’s presentence report calculated that, based on relevant conduct, he was responsible for 2.5 kilograms of cocaine powder and 281.6 grams of cocaine base, which resulted in a base offense level of 34 and a Guideline sentencing range of 188-235 months in prison.

Fanfan’s sentencing hearing was held on June 28, 2004, four days after the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (June 24, 2004). At sentencing, Fanfan objected to the Government’s introduction of evidence suggesting that he had sold cocaine base, arguing that, under Blakely, the Government should have charged a crime related to cocaine base in the indictment, and proven it to the jury beyond a reasonable doubt.

The district court (Judge Hornby of the D.Me.) agreed with Fanfan that Blakely precluded a sentence increased under the Guidelines based on judicial fact-finding. It stated: “The jury verdict does not permit us to reach a conclusion about crack cocaine. Crack cocaine was not even charged in the indictment.” Based on those findings, Judge Hornby found that Fanfan had a base offense level of 26, which called for a Guideline sentencing range of 63-78 months in prison; and he sentenced Fanfan to 78 months in prison.

The Government filed a writ of certiorari with the Supreme Court, arguing that the district court had committed clear error in concluding that the Supreme Court’s decision in Blakely applied to the Guidelines; and that appeal was ultimately consolidated with the appeal of one Freddie J. Booker.

In the first portion of its decision in Booker, the Supreme Court held that Judge Hornby was correct when he ruled that Blakely applies to the Federal Sentencing Guidelines. “We hold that both courts correctly concluded that the Sixth Amendment as construed in Blakely does apply to the Sentencing Guidelines.” (Booker, id., at 226-227) Then, in Judge Breyer’s separate remedial decision, the Court addressed the specific impact of its ruling on Duncan Fanfan’s 78 month sentence, stating:

“In respondent Fanfan's case, the District Court held Blakely applicable to the Guidelines. It then imposed a sentence that was authorized by the jury's verdict--a sentence lower than the sentence authorized by the Guidelines as written. Thus, Fanfan's sentence does not violate the Sixth Amendment. Nonetheless, the Government (and the defendant should he so choose) may seek resentencing under the system set forth in today's opinions. Hence we vacate the judgment of the District Court and remand the case for further proceedings consistent with this opinion.” (Booker, id., at 267-68).

On remand, the district court resentenced Fanfan 210 months in prison (a mere 11 year increase in his sentence), treating the guidelines as advisory but ultimately sentencing Fanfan within the guideline range that the court found applicable. Fanfan again appealed both his conviction and his sentence to the First Circuit, both of which were affirmed.

In addressing Fanfan’s challenges to his new sentence, the First Circuit first addressed Judge Hornby’s assumption that “Blakely would be held to require jury findings based on proof beyond a reasonable doubt as to guideline enhancements, including drug quantity and relevant conduct.” In summarily rejecting that assumption, the Court merely stated:

“The Supreme Court, of course, rejected this requirement in Booker and remanded Fanfan's case for resentencing.” (Huh?)

The Court then continued with a number of different rationales in support of its ultimate conclusion that the 210 month sentence was totally in accord with the teachings of Blakely and Booker, including the following:

“A sentencing court must make a reasonable determination of drug quantity, United States v. Ventura, 353 F.3d 84, 87 (1st Cir. 2003), cert. denied, 541 U.S. 980, 158 L. Ed. 2d 481 (2004), but Fanfan suggests no plausible basis for disputing the calculations of the amounts of powder cocaine and crack cocaine attributed to him. . . .

“At sentencing, the district court is not directly bound by ordinary rules of evidence and strict confrontation rules do not apply, U.S.S.G. § 6A1.3; United States v. Lizardo, 445 F.3d 73, 88 (1st Cir. 2006), cert. denied, 2006 WL 2725918 (Oct. 30, 2006), but under some circumstances considerations of fairness and utility might require an evidentiary hearing to resolve a critical issue of fact. United States v. Rodriguez, 336 F.3d 67, 70 (1st Cir. 2003). This is not such an instance: in the present case, the crack cocaine was unquestionably part of the same course of dealing, whether or not Thomas [a co-conspirator who testified against Fanfan at trial as part of his plea agreement] had purchased crack during the conspiracy itself.”

The net effect of the Court’s decision in this case is that, despite his “victory” in the Supreme Court, Duncan Fanfan’s sentence increase of eleven years did not violate the letter or the spirit of Booker. In short, all the glimmer of hope from Booker is gone. Long live the Federal Sentencing Guidelines!!

U.S. v. Frabizio, 445 F.Supp.2d 152 (D.Mass. Aug. 11, 2006) (Judge Gertner) (“Frabizio I”)
U.S. v. Frabizio, 459 F.3d 80 (1st Cir. Aug. 16, 2006) (Judge Lynch) (“Frabizio II”)

Both of these decisions are noted for their detailed discussion of various elements of the Child Pornography Protection Act (“CPPA”), 18 U.S.C. § 2252(a)(4)(B). That statute prohibits, inter alia, the knowing possession of a “visual depiction” that involves the use of a minor engaging in “sexually explicit conduct.”

Mastering what those statutory elements mean is far from easy. For example, in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), the Supreme Court held that, to obtain a conviction under § 2252(a)(4)(B), the Government must prove that the defendant possessed images of real children, rather than images of virtual children, engaging in sexually explicit conduct. However, due to the availability of increasingly sophisticated digital imaging techniques, it is becoming increasingly difficult to differentiate between images of real children and images of virtual children.

In addition, it is often difficult to establish objective criteria by which one can readily determine whether the visual depictions at issue portray “sexually explicit conduct.” The CPPA defines “sexually explicit conduct” to include the "lascivious exhibition of the genitals or pubic area of any person" (18 U.S.C. § 2256(2)(A)(v)). However, because that statutory definition leaves much to debate, the courts usually attempt to resolve any disputes about what constitutes a “lascivious exhibition” by utilizing the six so-called “Dost factors,” named after U.S. v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).

Frabizio I

In Frabizio I, Judge Gertner addressed a defense motion to exclude, under the holding in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and under Rule 702 of the Fed.R.Evid., the expert testimony of a Government forensic examiner, to prove that the visual depictions at issue were depictions of real children rather than images of virtual children. The defendant objected to such expert testimony on the grounds that his technique was unreliable because it had not been tested; it had not been subjected to independent peer review; it had an unknown error rate; it had no real standards or controls; it had not achieved general acceptance; and it satisfied no other set of reasonable reliability criteria, all as required by Daubert and its progeny.

After a thorough analysis of the facts and the applicable law that is far too lengthy to summarize, Judge Gertner concluded that “neither an expert witness nor a lay jury, using only visual means, can determine whether the images in this case are real or virtual to the level of certainty required in a criminal prosecution. I therefore find that [the expert’s] testimony is not helpful and must be excluded.”

Frabizio II

Frabizio II was published five days after Judge Gertner’s ruling in Frabizio I; but it did not address the issues raised in that decision. Rather, it addressed an earlier pretrial order by Judge Gertner in which she excluded from jury consideration three photographs, which the government claimed were child pornography. Utilizing the so-called "Dost factors," Judge Gertner concluded that no reasonable jury could conclude that the three exhibits met the statutory requirement of "lascivious exhibition of the genitals or pubic area."

The First Circuit disagreed with that ruling; and it reversed. First, it held that, under the statutory standard and Fed. R. Evid. 104(a), a reasonable jury could decide that the three photographs constituted lascivious exhibitions of the genitals or pubic area within the meaning of the statute because, inter alia, each photograph depicted a nude girl looking directly at the camera and the pubic area was plainly visible. Therefore, it concluded: “A jury could reasonably conclude that none of the girls' postures were natural or spontaneous, that each girl was deliberately posed to exhibit her pubic area, and that the posture in which each was posed was not a comfortable one.”

Second, the Circuit Court concluded that Judge Gertner had erred by giving the Dost factors greater weight than warranted. “The [district] court appeared to treat the Dost factors as exhaustive and to use them to set the boundaries of the statutory term ‘lascivious.’ The court thus applied the six Dost factors in a way that accorded to them the same status as the statutory definition itself.”

Finally, after a detailed review of the Dost factors, and after noting that “the Dost factors have fostered myriad disputes that have led courts far afield from the statutory language,” the Court observed that: “No other circuit court, as best we can tell, has ever approved the use of the Dost factors in a pretrial proceeding to remove the consideration of the lasciviousness of an image from a jury.”

Of particular interest is Judge Torruella’s lengthy concurring opinion, in which he strongly disagreed with the majority’s suggestion not to elaborate on the meaning of "lascivious" on the grounds that the statutory definition "needs no adornment" and that "[f]urther definitional guides are not required." In response, Judge Torruella explained why he believes that the courts “need to provide greater clarity as to Congress' intent in prohibiting child pornography.” He wrote, in part:

“The meanings of lewd and lascivious in the obscenity and child pornography statutes pose a difficult issue that requires clarification. If the girls depicted in the three images were eighteen years old and this case arose under an obscenity statute, it is beyond dispute that no reasonable jury could find that the images lewdly display the genitals. We are now proceeding under a child pornography statute and finding that a reasonable jury could find that the images lasciviously depict the genitals of the ten-to-twelve-year-old girls despite the fact that Supreme Court precedent suggests that lewd and lascivious are synonymous. See United States v. X-Citement Video, 513 U.S. 64, 78-79, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994). Because these two outcomes do not blithely arise from the plain text of the statutes, judicial elaboration of the meanings of ‘lewd’ and ‘lascivious’ is necessary.”

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