Vol. 13, Nos. 49 & 50	Covering Cases Published in the Advance Sheets through Dec. 11, 2006

New Supreme Court Rulings

• The Supreme Court issued two rather strange decisions last week, in both cases ducking the merits of the issues that led it to grant certiorari in the first place. In Burton, the Court declined to rule on the question before it - namely whether its sentencing decision in Blakely v. Washington should be applied retroactively in federal habeas cases - on the grounds that the district court lacked jurisdiction to hear the case in the first instance since the defendant had failed to comply with the “gatekeeping” requirements of the Federal habeas corpus statutes.
  
  
  
• In Resendiz-Ponce, the Supreme Court also declined to decide the issue it had agreed to hear - namely whether the failure to include in an indictment an element of the offense can ever be excused as “harmless error” - and instead found that the indictment in this case was not defective after all, so it need not reach the question on which it had granted certiorari in the first place.
  
  

State-Federal Disparity in Sentencing

• The Brennan case from the E.D.N.Y. is noted for Judge Jack Weinstein’s detailed and informative analysis of some of the concerns arising from the many state-federal disparities in sentencing.
  
  

DNA Analysis Backlog Elimination Act Held Unconstitutional by Two Jurists

• In Stewart and Reynard, two distinguished jurists, Judge William Young of the D.Mass. and Judge Harry Pregerson of the Ninth Circuit, ruled that the DNA Analysis Backlog Elimination Act of 2000 is unconstitutional, albeit for different reasons..
  
  

Fourth Amendment Issues

• In Arnold, Judge Dean Pregerson of the C.D.Cal. granted a rare suppression motion of computer files taken from a computer seized at an airport on the grounds that, even in border searches, cause is required for “highly intrusive” searches that implicate one’s “dignity and privacy interests.”
  
  
• In Marshall, the Tenth Circuit upheld a whopping award of $490,000 in punitive and compensatory damages against two police officers who forced a defendant to undergo a non-consensual, warrantless blood test, after he was arrested on an assortment of pretextual charges that were later dismissed.
  
  

Convictions of Two Former Westar Evecutives Overturned

• In Lake, the Tenth Circuit overturned the convictions of former Westar executives, David Wittig and Douglas Lake, after finding that the Government’s alleged “far-reaching scheme to milk the company for all they could through a pattern of fraud and deceit . . . hung by a thin legal thread.”

U.S. v. Brennan, No. 96-CR-793 (E.D.N.Y. Jan. 2, 2007) (Judge Weinstein)

Robert Scott Brennan, a drug addict, was twice found by New York City police to be in the possession of heroin while on supervised release from a Federal conviction. However, rather than sentence him to a term of incarceration for his supervised release violation (as the Federal prosecutor urged), and based on the disparity between state and federal sentences for narcotics offenses, Judge Weinstein adjourned for a year a hearing on the charges of violating the terms of his supervised release so that Brennan could resolve his state narcotics charges and participate in a state drug treatment program.

In another of his many brilliant decisions, Judge Weinstein concluded: “Utilization of the state drug courts to assist the defendant appears to be preferable to a federal prison sentence.” He then continued with an astute and thought-provoking analysis of some of the concerns that arise from the often significant disparity that exists between state and federal sentences.

While this decision should be read (and studied) in its entirety, one can glean the essence of Judge Weinstein’s wisdom and guidance on this important topic from the following passages (internal citations omitted):

“Federal courts have recognized that moderating changes in state criminal drugs laws can have an ameliorative effect on harsh federal sentences. . . . In the area of sentencing, the combination of overlapping state and federal laws and limited federal resources exacerbate the disparity between state and federal sentences. ‘A . . . criticism of the federalization of criminal law is that the possibility of so many crimes now being subject to both federal and state prosecution creates a large pool of defendants who could be tried in either court.’ . . .

“Since the Supreme Court's decision in United States v. Booker, 542 U.S. 220 (2005), made the federal sentencing guidelines largely advisory, the issue of whether it is appropriate for federal sentencing judges to consider the disparity between state and federal sentences becomes critical in some cases. It has been suggested that consideration during sentencing of ‘the disparity between state and federal sentences... [would] help alleviate both the disparity [between state and federal sentences] and the concern that the federal courts are overwhelmed with matters that can and should be tried in the states.’

“Federal courts are recognizing post-Booker that it may be appropriate to take state sentencing practices into account when sentencing federal defendants. . . . Federal legislation recognizes the desirability of avoiding sentencing disparity. Section 3553 (a)(6) of title 18 of the United States Code requires:

“The court, in determining the particular sentence to be imposed, shall consider . . . (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. . .

“The disparity referred to has usually been interpreted to apply horizontally to comparisons among federal defendants. . . . Yet, section 3553(a)(6) can also be interpreted to require consideration of vertical disparities between local state and federal sentences. Criminal law and sentences in the past and today have been crafted by the states not the federal government; federal sentences have had little impact on most crimes. . . .

“From the point of view of the impact of sentencing on specific and general deterrence and reducing recidivism rates, state-vertical coordination is more important than national-horizontal uniformity. The public and criminals generally consider the local federal and state courts as part of a single protective institution. Too great a disparity between state and federal prosecution and sentencing decisions will be seen by the public as creating unjustified disparities. . .

“Section 3553(a)(6) should be construed as covering disparities in state-federal as well as federal-federal comparative sentencing. . . . Considering comparable state sentences in formulating federal sentences will generally tend to reduce average time in prison. Federal sentences are generally higher than state sentences. This development may also moderate the power of prosecutors to whipsaw defendants -- federal prosecutors intervening in state matters, and state prosecutors threatening deferral to federal prosecutions with the prospect of higher sentences.”

For more on this topic generally, see “State, Federal Disparities and Nonguidelines Sentencing,” by Michael J. Gilbert and Matthew J. Lang, New York Law Journal, Jan. 9, 2007; and see “Advisory Sentencing and the Federalization of Crime: Should Federal Sentencing Judges Consider the Disparity Between State and Federal Sentencing Under Booker?,” by Christine DeMaso, 106 Colum. L. Rev. 2095 (2006).

U.S. v. Stewart, No. 05-10062-WGY (D.Mass. Jan. 8, 2007) (Judge Young)
U.S. v. Reynard, No. 02-50476 (9th Cir. Jan. 12, 2007) (Judge Pregerson)

The DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), which is codified at 42 U.S.C. §§ 14135-14135e and 10 U.S.C. § 1565, requires the U.S. Probation Office to collect a DNA sample from any probationer, parolee, or supervised releasee "who is, or has been, convicted of a qualifying offense." Since its enactment, the constitutionality of the DNA Act has been challenged many times; and most of those challenges have been rejected, often in summary fashion and usually by parroting untested assumptions about the Government’s “special needs” to collect DNA samples.

Occasionally, a courageous jurist will challenge those hackneyed claims with a profound and thought-provoking ruling that rocks the foundation of support for the DNA Act. And that’s precisely what happened in these two cases. Here, two outspoken Judges, William Young of the D.Mass. and Harry Pregerson of the Ninth Circuit, have authored compelling rulings to show why the DNA Act is unconstitutional, at least as applied to the defendants in these two cases.

Stewart

James Stewart brought a motion to modify the conditions of his probation, seeking to preclude the Probation Department from forcing him to give a DNA sample as required by the conditions of his probation. In a lengthy and persuasive decision that must be read in its entirety to appreciate its true brilliance, Judge Young granted that motion after concluding that the DNA Act, as applied to Stewart, violated his rights under the Fourth Amendment.

First, Judge Young explained that the proper test for determining the validity of suspicionless and warrantless searches of DNA from persons like Stewart is to weigh the Government’s legitimate interests against the invasion of the defendant’s privacy rights. He then emphasized that “in assessing the strength of the governmental interest, it is recognized that the category of warrantless and suspicionless searches must be held ‘closely guarded’ against the encroachment of governmental action.”

From there, he showed, with impeccable logic, why some of the standard claims used to justify the DNA Act simply make no sense. For example, he cited several governmental interests that are normally assumed to justify taking DNA samples from probationers. Thus, there is a “general supervisory interest in monitoring probationers.” But, as Judge Young explained:

“This rationale, however, cannot be extended to searches to extract one's DNA. There is no exigency that supports its collection because a probationer cannot take any action to thwart or conceal the information contained in his DNA. . . . In addition, DNA provides no immediate indication of criminal wrongdoing but requires a further test and a cross-reference in a database to reveal actionable evidence. There is no reason why a probation officer who suspects ongoing criminal activity could not take the reasonable time to secure a warrant for DNA collection without fear that the information he seeks would be destroyed or concealed.”

Another governmental interest normally presented to support DNA collection is based upon the prevention of recidivism through deterrence. In response to that interest, Judge Young stated:

“One need not look further than the crime with which Stewart was charged to understand the attenuated nature of this interest and argument. Stewart pled guilty to a property crime -- the unlawful diversion and collection of Social Security disability benefits. DNA evidence played, and would play in the future, little to no role in the discovery, solving, or prosecution of such an electronic crime. If Stewart were to recidivate, the knowledge that CODIS contained his DNA would not deter him from doing so. Even if this governmental interest were legitimate in general, it certainly is not legitimate when applied to Stewart and the facts of this case.”

With similar logic, Judge Young showed why the nature and degree of the intrusion required by the DNA Act clearly outweighed the government’s ephemeral interests in a national DNA database. In the end, he forcefully concluded:

“[T]he Fourth Amendment must not be applied with myopic deference to an immediate governmental imperative. Instead, it must be applied cautiously and with broad vision both as to its historical purpose and to its future viability. As Justice Jackson said after his return from the Nuremberg trials, ‘one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.’ Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting). To this end, ‘it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments.’ Byars v. United States, 273 U.S. 28, 32 (1927). These rights are not absolute, and the government, at times, may present public purposes significant enough to overcome such constitutional protections. The government did not do so in this case.”

Reynard

After the district court revoked John Reynard’s supervised release because he refused to proffer a blood sample as required by the DNA Act, he appealed to the Ninth Circuit, raising a series of challenges to the constitutionality of that Act. In rejecting Reynard’s challenges, the panel concluded, inter alia, that (a) based on existing Ninth Circuit precedent, the DNA Act did not violate Reynard’s rights under the Fourth Amendment; (b) the DNA Act did not have an impermissibly retroactive effect on him; (c) th e DNA Act did not violate the Ex Post Facto Clause; and (d) the compelled extraction of blood under the DNA Act did not violate Reynard’s Fifth Amendment right against self-incrimination.

However, Judge Harry Pregerson, who wrote the majority opinion on each of the foregoing issues, also wrote a separate partial dissenting decision in which he agreed with one of Reynard’s arguments that the DNA Act is unconstitutional because the Federal government lacks the authority under the Commerce Clause to require a federal offender to provide a DNA sample as a condition of his supervised release. Relying in part on the Supreme Court’s decision in Reno v. Condon, 528 U.S. 141 (2000), he argued that DNA samples taken under the DNA Act are not “things in interstate commerce.” Then, in an enlightening and persuasive discourse, he reasoned:

“[B]y passing the DNA Act, Congress is attempting to regulate something that it - and nobody else - has put into the stream of commerce. Reynard’s DNA - while housed in his body - is not a ‘thing’ in interstate commerce until the government, under the DNA Act, compels the DNA’s extraction by drawing blood from a parolee and places the DNA in the stream of commerce for analysis. Congress may not bootstrap its authority to regulate purely local activity under the Commerce Clause. If the government is allowed to regulate anything that it puts into the stream of commerce, its powers under the Commerce Clause would be without limit. ‘To be sure, “the power to regulate commerce, though broad indeed, has limits”.’ By arguing that Condon authorizes Congress to regulate Reynard’s DNA only after the government has placed it in interstate commerce, the government puts the proverbial cart before the proverbial horse.” (Internal citations omitted).

Marshall v. Columbia Lea Regional Hosp., No. 05-2173 (10th Cir. Jan. 9, 2007) (Judge Henry)

What does one do when his or her Fourth Amendment rights have been blatantly and arrogantly abused by law enforcement officers who think that they have the absolute right to act above the law? Well, sue, of course; and this noteworthy case gives some hope that it is possible not only to defeat a defense of qualified immunity, but also to win some meaningful damages in a lawsuit challenging abusive police misconduct.

On December 26, 1996, two New Mexico police officers arrested Jimmie Marshall, an African-American, on various charges, including a minor traffic violation, driving under the influence, and resisting arrest. After taking Marshall to jail, the police administered several sobriety tests on Marshall. Ultimately, even though he passed two breathalyzer tests, Marshall was taken to the Columbia Lea Regional Hospital to undergo a non-consensual, warrantless blood test.

Just one small passage from the Court’s decision in this case shows the shocking capriciousness of the police officers’ actions. After Marshall told the nurse at the hospital that he refused to give his consent fore the blood test, one of the police officers told the nurse: "Go-ahead and give it to him. I'll consent." The hospital records contains a "consent form," initialed by the police officer, which states: "Refused to sign. Gave verbal consent." Two vials of blood were taken. The laboratory tests subsequently found no evidence of alcohol or other illegal drugs, although it did reveal traces of THC, the active ingredient in marijuana, in Marshall's bloodstream.

Subsequently, all criminal charges against Marshall were dismissed when the DA entered a nolle prosequi because the evidence obtained in the case had been suppressed. The record does not contain any further information about that proceeding, or the legal basis for the suppression of the evidence.

In November 1999, Marshall filed a § 1983 action in federal district court against the officers, the police chief, the hospital, and the nurse who administered the blood test. Ultimately, the jury rendered a special verdict in favor of Marshall on his Fourth Amendment claim against Officers Rodney Porter and Walter Roye. It also awarded Marshall compensatory damages of $ 90,000 from both Officers, and punitive damages in the amount of $ 300,000 against Officer Porter and $ 100,000 against Officer Roye.

On appeal, the two police officers argued that the district court had erred when it denied their post-judgment motion for judgment as a matter of law based on qualified immunity. They maintained that, at the time they ordered the nurse to draw Marshall's blood against his will, no clearly established law precluded a warrantless nonconsensual blood test.

In a decision that warms the cockles of one’s heart, the Tenth Circuit rejected, as pure pettifoggery, the officers’ claim that they were entitled to any qualified immunity and affirmed the whopping judgment of $490,000 against the two police officers. Awards of that size may be the only truly effective deterrent against blatant misconduct by the police.

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