Vol. 10, No. 6
Covering Cases Published in the Advance Sheets through February 10, 2003

Note: The full text of all of the decisions noted below has been incorporated in our on-line data base which is available for subscribers only. Thus, while the names of some of the cases are highlighted in blue, they are not hypertext-linked to the official decision in this Visitor's Edition of Punch and Jurists.

Highlights of this Issue:

Supreme Court

Prosecutorial Misconduct

The Culture of Our Witch Hunt for Pedophiles: Crush Them

The Reliability of Eyewitness Identification Testimony


Next week we will review a quartet of depressing decisions decided by the Supreme Court on March 5, 2003: Lockyer v. Andrade and Ewing v. California, where a majority of the Justices held that the lengthy sentences for petty thefts mandated by California’s Three Strikes Laws did not constitute cruel and unusual punishment; and two cases that rejected challenges to sex offender notification laws (known as Megan’s laws) in Connecticut and Alaska, despite objections from the minority that the principal impact of such laws is to humiliate and ostracize the convicts.


U.S. v. Ramirez-Lopez, 315 F.3d 1143 (9th Cir. 2003) (Judge Cebull)

The defendant in this case, Juan Ramirez-Lopez (”Ramirez”), was one of a group of 16 Mexicans who were arrested in March, 2000 crossing the border into the United States from Mexico. Due to inclement weather, a member of that group died of hypothermia; and Ramirez himself was taken to a hospital for frostbite treatment. Two of the surviving 14 witnesses inculpated Ramirez as the leader of the group; while the remaining 12 fully exculpated him, saying that he was merely a guide. Ultimately, Ramirez was tried for a number of alien smuggling violations; and he was convicted at trial of alien smuggling, alien smuggling for a profit, and transportation of aliens resulting in death. He received a sentence of 78 months in prison.

On appeal, Ramirez raised a number of issues, but he principally complained that his due process and compulsory process rights had been violated because the Government had removed 9 of the 12 friendly alien-witnesses from the United States before his counsel could interview them.

In a decision written by Judge Cebull (a recent appointee to the bench by President Bush), the majority rejected Ramirez’ claim. It concluded that, under the Supreme Court’s ruling in U.S. v. Valenzuela-Bernal, 458 U.S. 858 (1982), Ramirez had to meet a two-prong test to succeed in his claim: (1) he had to make an initial showing that the Government had acted in bad faith; and (2) he had to show that this conduct resulted in prejudice to his case. Then, without ever getting to the issue of bad faith, Judge Cebull concluded that Ramirez had failed to establish that he had been prejudiced by the Government’s actions, largely on the basis that the testimony of the 12 deported aliens would have merely been cumulative. (Id., at 1152). Judge Cebull also made much of the fact that Ramirez had “knowingly and intelligently waived his right to detain [the] deportable alien witnesses.” (Id. at 1150).

Judge Kozinski, who considered that ruling a lot of hokum (“eyewash” is the exact term he used (id., at1167)), wrote a blistering dissent. He started with a sadly amusing parody of the fictional conversation Ramirez must have had with his attorney when the lawyer tried to explain the “good-news, bad-news” aspects of the majority’s ruling. (To get people to read the entire parody, we will only report that the “good news” that the lawyer imported to his client was the following message: “You’ll be happy to know that you had a perfect trial. They got you fair and square!”) (Id., at 1160).

From that point on, Judge Kozinski simply pointed to fact after fact that he felt had been ignored by the majority. He complained, for example, that “the only issue of fact in the case” was whether Ramirez was the leader of the pack or one of the members of the pack - and yet nine of the exculpating witnesses were removed from the United States “before defense counsel was appointed and before the district court had an opportunity to consider the matter.” (Id., at 1162). He then continued:

‘This is bad enough, but it gets much worse. At trial, the fact that twelve of the fourteen individuals who were traveling with defendant exonerated him was carefully hidden from the jury. No witness was allowed to testify to this fact, and the interview notes were suppressed. I n fact, evidence was introduced that misled the jury about what the missing witnesses would have said: On cross-examination, one of the federal agents confidently reported that some of those deported had inculpated defendant, which we know is not true. Defense counsel called this discrepancy to the attention of the district court and sought to introduce just enough evidence to impeach the agent's statement, but the court would have none of it -- the agent's statement remained uncorrected and unrebutted.

“Imagine if the shoe were on the other foot: A corporate defendant suspected of criminal conduct interviews some of its employees, and takes careful notes showing that the employees were aware of criminal activity. Before federal investigators can talk to the witnesses, the corporation whisks most of them to a foreign land where they are beyond the power of the United States. At trial, the corporation opposes the introduction of the inculpatory interview notes, arguing that they are hearsay and cumulative. And, when a corporate officer testifies, he suggests that some of the removed witnesses would have provided exculpatory evidence.

Is there any doubt what would happen in such a case? Any corporation that tried to pull a stunt like this would quickly find itself indicted for obstruction of justice, and the inculpatory notes would be ordered produced and introduced at trial. I can imagine no other result. (Id.) (Emphasis added)

Space does not permit a full recitation of all the points made by Judge Kozinski - but one additional point deserves mention. In response to Judge Cebull’s finding that Ramirez had signed a document in which he “knowingly and intelligently waived” his rights to object to the deportation of his friendly witnesses, Judge Kozinski retorted:

“Should the government be able to avoid its Brady obligation by destroying exculpatory evidence before the defendant knows it exists? . . . Can the government free itself of the obligation of fundamental fairness and candor -- and empower itself to destroy exculpatory evidence and conceal exculpatory witnesses -- by getting a signed waiver from a poorly educated defendant who has no understanding of what he is giving up?” (Id., at 1163).

Stating that he was “astonished” at some of the majority’s findings and conclusions, Judge Kozinski expressed similar objections to other portions of the majority’s opinion; and, in the end, he simply surmised that his colleagues on the panel may have bought the Government’s “lame excuses” because they were “faced with the problem of closing the barn door after the mare had fled.” (Id., at 1167)


U.S. v. Conrad, No. 02-1292 (8th Cir. 02/28/2003) (Judge Melloy)

The defendant in this case accomplished a rare feat: he actually convinced a Federal Court of Appeals that his conviction should be reversed because of prosecutorial misconduct in its opening statement and closing argument - despite the facts that (a) the Government claimed that the evidence against the defendant was “overwhelming,” and (b) the district court gave the jury curative instructions to the effect they should ignore the challenged statements.

The defendant, Nickolas Conrad, was convicted of a single count that charged him with possession of an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871. The gun in question, which was found in Conrad’s apartment, was a sawed-off shotgun. Conrad’s defense was that the gun belonged to a neighbor who frequently stayed in his apartment.

At trial, and over the frequent objection of defense counsel, the prosecutor made reference to the purpose of the Federal Gun Control Act - in his opening statement, in eliciting testimony from a Special Agent, and in his closing argument. On two occasions the district court sustained objections by the defense that the prosecutor was improperly delving into the rationale for the law (although on other occasions the court left an inconsistent message by overruling similar objections by defense counsel).

On appeal, the Eighth Circuit reversed the conviction and remanded for a new trial. Citing cases, it stated that it was well-established that “testimony concerning the purpose of the Gun Control Act has little or no probative value in a trial for a violation of the Act. There is even less justification for allowing the prosecutor to ‘testify’ in closing argument about the statute’s purpose. . . Its sole purpose [is] to create prejudice in the minds of the jurors.”

Here, the Court concluded that the prosecutor’s improper comments “were not limited to one phase of the trial. . . . In examining the cumulative effect of the improper comments, we conclude that the pervasiveness of the improper comments substantially impaired the defendant’s right to a fair trial.” In addition, even though the Court agreed that the evidence against the defendant was “strong,” it also concluded that “the tenor of the prosecution severely prejudiced the defendant.” Finally, the Court held that “the curative actions taken by the [district] court were insufficient to protect the defendant’s right to a fair trial . . . [because they] failed to negate the cumulative effect of the improper comments and testimony.”


The Domestic Security Enhancement Act of 2003 - Part IV

This week, we conclude our summary analysis of some of the significant features of the proposed Domestic Security Enhancement Act of 2003, which the Department of Justice has been privately circulating to selected Members of Congress, by looking at Titles IV and V of that Act. Title IV is ominously entitled “Enhancing Prosecution and Prevention of Terrorist Crimes”; and Title V is entitled “Enhancing Immigration and Border Security.”

For the benefit of our readers, we note that the 87-page draft bill (herein “Patriot II”), together with an accompanying 33-page section-by-section analysis of the bill (herein the “DOJ Analysis”) have been posted on the Member’s portion of our Web site and can be accessed by going to the statutes page of the Anti-Terrorism section.

In considering the scope of this legislation, we remind our readers that Patriot II is designed to add to the extraordinary powers already granted to the Government under Patriot I. To put that in context, the Los Angeles Times reported last week that the number of secret searches approved by Attorney General Ashcroft since 9/11 is already more than three times greater than the entire number of secret searches authorized by all other attorney generals in the previous 20 years. [We also note that we have posted - and will continue to post - a number of other revealing articles about Patriot II on the Anti-terrorism Section of our Web site.)

Section 401: Providing Material Support to Terrorism. Among the many features of this section is one provision that would amend the definition of “international terrorism” to make it clear that it covers acts “which by their nature appear to be intended for the stated purpose.” Then, in one of those wonderful Alice-in-Wonderland segues that explains the real purpose of that provision, the DOJ’s analysis states: “Hence, there would be no requirement to show that the defendants actually had such an intent.” (Emphasis added).

Section 405: Presumption for Pretrial Detention in Cases Involving Terrorism. Seeking to make legal the practice that the Attorney General has already been following, this provision would “presumptively deny release to persons charged with” terrorism crimes.

Section 408: Postrelease Supervision of Terrorists. Among other things, this provision would mandate a term of supervised release of at least ten years for persons convicted of terrorist crimes.

Section 410: No Statute of Limitations for Terrorism Crimes. This provision would dramatically broaden the class of offenses that may be prosecuted without limitation of time - to cover all crimes “likely to be committed by terrorists and supporters of terrorism.”

Section 427: Assets of Persons Committing Terrorist Acts Against Foreign Countries or International Organizations. Using an approach of “seize-first, ask-questions-afterward,” this provision would authorize the early seizure of assets of persons suspected of various types of international terrorism.

Section 501: Expatriation of Terrorists. This provision would make clear that even American citizens can be stripped of their citizenship and expatriated (presumably to some country in their distant origin) if such a person “becomes a member of, or provides material support to, a group that the United States has designated as a ‘terrorist organization’.” The DOJ’s analysis of that provision ominously states: “This provision would also make explicit that the intent to relinquish nationality need not be manifested by words, but can be inferred from conduct.” (Emphasis added).

Section 504: Expedited Removal of Criminal Aliens. This multi-faceted provision would (a) expand the categories of aliens who could be removed to include permanent resident aliens, (b) expand the categories of crimes that would trigger removal to include such non-terrorist offenses as “possession of controlled substances, and (c) curtail “the authorities for contested judicial removal currently codified at 8 U.S.C. § 1228(c).


Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:

Court

This Week

Year to Date

Since 1996

Courts of Appeal

69

266

16,774

District Courts

20

176

   9,114


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